Transcripts (perhaps draft) of the Article 50 ‘Brexit’ Appeal hearings at the Supreme Court

And the Quebec secession case. First of all, my Lords, my Lady, one of the principles which is extracted by the Canadian cases is that the consent of the governed is a value that is basic to our understanding of a free and democratic society, and indeed that has been historically part of the problem in Northern Ireland, and it was to obtain that very consent of the governed that the Good Friday agreement was arrived at, so that institutions, political institutions and the ultimate question of which country Northern Ireland should be a part of, whether it is part of the United Kingdom or a united Ireland, was determined and looked at.

That is the Supreme Court Quebec secession reference, paragraph 77 of our printed case, but paragraph 74, it looks at this question of -- this is distinct before we even look at the Good Friday agreement, my Lords, my Lady, that when one is looking at a federal system, which Canada is, and arguably England, Scotland and Wales may be, that the notion that a majority in one region may simply trump a majority in another is not a fair reflection of what a modern democratic society should do.

Paragraph 74, the Canadian courts looked at this question in the case of the Quebec secession reference -- sorry, my Lords, my Lady, paragraph 73, first of all, they say that in looking at the underlying principles of what a constitution should look like, that it should be animated by the whole of the constitution, including the principles of federalism, democracy and constitutionalism.

At paragraph 74, then, another extract from the same case is set out, and it looks at the -- a negotiation process which they say should take place if there is a conflict between majorities in a federal system. And that negotiation process, precipitated by a decision of a clear majority of the population of Quebec, on a clear question to pursue secession, would require the reconciliation of various rights and obligations by the representatives of the two legitimate majorities, namely the clear majority of the population of Quebec, and the clear majority of Canada as a whole, whatever that may be.

There can be no suggestion that either of these majorities trumps the other political majority, that does not act in accordance with the underlying constitutional principles we have identified, puts at risk the legitimacy of the exercise of these rights.

What we say, my Lady, my Lords, is that that is in the context of a federal system. But what section 1 of the Northern Ireland Act does is it puts Northern Ireland's place within the United Kingdom on a voluntary basis. It is more in the nature of confederalism than federalism. To equate the devolution structure of Northern Ireland with the other devolution arrangements for Scotland and Wales does no justice to history, and does no justice to the right of the people of Ireland to self-determination, as set out in the Anglo-Irish agreement, the Good Friday agreement, and does no justice to the principle of consent which is enshrined in section 1 of the Northern Ireland Act. Section 1 of the Northern Ireland Act enshrines, we say, is a statutory expression of both of these principles. When you look at it, which it is in Northern Ireland volume 1, one can see -- my Lords, Northern Ireland authorities, volume 1, tab 3.

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