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

It certainly was not given to the Crown. To Parliament and its delegates, and of course Parliament has through the 1972 Act and through the devolution statutes, transferred legislative powers or acknowledged legislative powers on the part of others.

I say that, if that is correct, then we are talking about the scope and limits of the prerogative power relied on here, and that is quintessentially a question of law for the court.

Can I make clear that I do not contend that there is any speciality of Scots law as regards the prerogative that affects this case. First of all, the capacity of the Crown in right of the United Kingdom to engage in relations on the international plane on behalf of the United Kingdom is an incident of the Crown in right of the United Kingdom, and it frankly makes no sense to suggest that that might change in the different jurisdictions of the Union.

Equally, the limits which Scots law places on the effects which acts of the Crown in the exercise of its foreign affairs prerogative may have within the domestic legal order in Scotland are the same limits as I understand English law to place on those effects, first of all, because Scots law adheres to the dualist theory, as English law does, and, secondly, because Scots law like English law contains the same limiting rule which I mentioned a moment ago which precludes the executive, I say, from changing the law of the land by an act of the prerogative.

So, with those remarks on the general question and on the relevance of Scots law in relation to the prerogative, let me turn to the question of legislative consent. I say that the executive's claim in this case not only misconceives the respective roles of Parliament and the Crown in relation to the law of the land, but would elide the constitution the mechanism through which the question of whether the devolved legislatures, which have power to change the law of the land, consent or do not consent to legislation which has the effect with regard to devolved matters. It would elide the mechanism, the legislative consent convent, through which that consent is treated as an issue of constitutional significance.

Can I make clear that I do not assert that the Scottish Parliament has a veto on the decision to withdraw the United Kingdom from the European Union. That decision is ultimately, I say, for the Queen in Parliament. What I do say is that the question of whether the Scottish Parliament consents or does not consent to the effects of withdrawal with regard to devolved matters is, by virtue to the legislative consent convention, a matter of constitutional significance. I will elaborate on that and explain what I say the position is.

But, ultimately, I say that the approach that I invite the court to take reflects the proper institutional roles of the United Kingdom Parliament on the one hand and the Scottish Parliament on the other, in a context where the Scottish Parliament has wide legislative competence and where the effect of withdrawal from the European Union would be significant, with regard to devolved matters.

In other words, in that context, it is constitutionally relevant and significant to know whether the Scottish Parliament consents to those effects. It is then for the United Kingdom Parliament to decide, in light of the views of the devolved legislatures and its own assessment, what to do.

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