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

First of all I say that because this is a statutory provision, any question as to its scope and legal effect is in principle justiciable. The question of what legal effect and what meaning to be given to the different parts of in particular section 28(8) is a matter for the court. To say that the subsection is justiciable does not mean that Parliament intended that the court would decide whether a particular situation is normal. The use of the word "normally" in the context of section 28(7) indicates that there are some situations in which the United Kingdom Parliament will legislate with regard to devolved matters without the consent of the Scottish Parliament. I referred yesterday to the background principles, Article 9 of the Bill of Rights and the Pickin rule.

But that is not an issue that the court needs to address in this case. The question that arises at this stage is whether or not the convention applies at all; namely whether or not a bill to withdraw the United Kingdom from the European Union falls within the scope of the convention. That depends on the meaning and effect to be attached to the phrase "with regard to devolved matters".

Although that is a phrase which is not replicated elsewhere in the Scotland Act, it is a phrase of a character which is capable of resolution by a court. So there is nothing inherent in the phrase itself which makes it unsuitable for adjudication.

I say that if there is a dispute about whether legislation of a particular kind is or is not legislation with regard to devolved matters, it is constitutionally permissible for the court to resolve that dispute.

In doing that, the court would be saying no more and no less than that the convention is engaged; and that the question of whether legislative consent is required is a constitutionally relevant one. That is what the court, this court, would be saying if it were to indicate that the legislative consent convention is part of the United Kingdom's constitutional requirements for a decision to withdraw from the European Union.

If it is correct, as I submit, that a bill to make that determination would engage the convention, then the constitution passes to the political actors, to the United Kingdom Parliament and indeed no doubt also the Scottish Parliament, to address whether or not this is a case in which exceptionally the United Kingdom would or would not legislate without the consent of the Scottish Parliament.

Or if that consent were not to be given, and one should not prejudge any of these things, or if that consent were not to be given, whether or not it would be for the United Kingdom Parliament to determine whether or not to legislate without -- in the face of that refusal of consent. There would be no legal sanction should the United Kingdom Parliament choose to do that.

I have set out in my case in detail what I say is the practice in relation to the scope and application of the legislative consent convention. It is perhaps worth making the point that it is a routine part of the way that matters are addressed between the United Kingdom and Scottish governments between -- and it -- between the two parliaments.

I say that looking to that practice, a bill which determined to withdraw the United Kingdom from the European Union would engage the convention, because of the effects that it would have with regard to devolved matters.

In these circumstances, and this comes to the main point in the appeal, in these circumstances it would be surprising if the same result could be achieved by an unilateral action of the Crown under the prerogative. Such action would not be legislation and therefore would not trigger the convention. The result, if the prerogative could be so exercised, would be to elide the need, I say the need for the relevant constitutional actors, those actors who have power to change the law of Scotland, namely the Scottish Parliament and the United Kingdom Parliament, even to address whether the Scottish Parliament's consent should be sought and obtained. I say that if that were the law, and I say it is not the law for other reasons, then that would bypass an important constitutional requirement of the United Kingdom.

Fundamentally I say this case is about who has the power to change the law of the land. In Scotland there are three legislatures, there is the United Kingdom Parliament, there is the European legislature, there is the Scottish Parliament; and as between the United Kingdom Parliament and the Scottish Parliament, the convention -- convention constrains the United Kingdom Parliament in the exercise of its legal powers in order to respect the authority which the Scottish Parliament has.

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