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

The context of that, we say, is important, my Lord, and to the extent that the United Kingdom has no written constitution, we say that the Good Friday agreement now forms a written part of the constitution of Northern Ireland, and unlike my friend, we say that it is binding, parts of it, not all of it but certainly that section of it that deals with constitutional issues is binding, it is a binding arrangement. As a matter of constitutional law, in that it may derive its legitimacy from the rule of law and what has been agreed between the parties, between Britain and Ireland and between Britain and Northern Ireland, it derives legitimacy from that. But it also derives legitimacy as an international agreement, a binding international agreement which has been incorporated into UK domestic law by virtue of section 1.

My Lords, if I can just turn very briefly to that agreement, it appears at volume 1, tab 14, 20342 and the constitutional issues which are set out, they are, it must be said, set out initially in what is -- what may be described as binary terms, but what I would say to the court is there is very little about Northern Ireland that can be described in a binary basis.

Take the applicant, my client, for instance, he is a Protestant from north Belfast, he is a victim of the Troubles, he is a victims' rights campaigner. He is here, has always attended court with his friend who a Catholic. But his son was murdered by loyalist paramilitaries. He regards himself as British, although many people in Britain may regard him as Irish. It is a complex situation, my Lords, my Lady, northern Ireland, and there is a complex constitutional settlement.

It would be very disturbing for the people of Northern Ireland to imagine that the terms so agreed in the Good Friday agreement were not binding to some extent, did not have a constitutional status.

Lord Hoffmann in Robinson at paragraph 13, page 3286, refers to the fact that the agreement should be looked at in terms of interpretation of section 1, but in Robinson itself, my Lords, my Lady, the court made a strained interpretation of section 16 of the Act in order to give effect to the agreement and the purpose of the agreement -- in a purposive general way. That is a sort of device employed by courts that have a written constitution. It is a device employed by courts here in this jurisdiction in terms of looking at the European Convention on Human Rights, and we say that is the basis upon which the Good Friday agreement should be looked at.

If I could bring your Lordships very quickly to subparagraph (1), sorry, my Lords, it is 20374, where the constitutional issues, and there are simply five of those set out and, to the extent that it has been argued by the Government and in fact by Mr Justice Maguire that there was no provision within the Good Friday agreement which sets out our contentious, if I could direct your Lordships towards subsection (3) and the very last subclause of that, it is after the semi-colon. To put that into context, that is part of the constitutional issues which enshrines the principle of consent.

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