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


Yes, if I could just make two short points in response to issues -- sorry, I should make this point, that if I -- I would be making this submission, even if it wasn't for the statutory enactment, so I say it is not critical, and I point the court to the Patriation Reference case from Canada, volume 25, tab 305.

The approach that I would say of the majority of the court in that case to a question of the justiciability of a convention not dissimilar to the one before this court, did not in my submission depend on any specialty of the Canadian jurisdiction. I draw the court's attention to MS 8846 to 8847 where the Canadian Supreme Court, the majority bites directly on the justiciability question.

I may say that was a case where the convention was not enshrined in statute. If I am wrong in all of that, and the court were to take the view that the point is not justiciable, then the court would decline to answer the Advocate General for Northern Ireland's second question. The court would say that Mr Justice Maguire was wrong to express a view as to the scope of the convention, and in effect the court would be leaving to other constitutional actors the question of whether or not the constitutional requirements of the United Kingdom include in the present circumstances this convention.

If I could make two short points in response to issues raised by the Advocate General for Scotland, he made a point that there is no bill before us and ordinarily this is a question which would not be addressed without a bill because the question of whether the convention is engaged or not, may depend critically on the particular provisions of a particular piece of legislation; and it is entirely possible, no doubt, that a bill determining to leave the EU could also contain other provisions which (Inaudible).

I have sought to test the matter in a way most favourable to the United Kingdom, by assuming the simplest possible bill. He pointed out that there was no legislative consent motion in relation to a string of previous pieces of legislation relating to the EU. I will say it is entirely consistent with the United Kingdom Government's ambulatory theory that changes to the content of EU law were not thought to engage the convention, far less, far less, changes in the institutional procedures of the European Union; and I say that the hypothetical bill withdrawing us from the EU with the significant radical consequences with regard to devolved matters that I alluded to yesterday is quite different in kind. It is really the same point that the court discussed with my learned friend Mr Eadie on Day 1, that we are dealing with something that is not simply a change in scope, it is something which is quite different in kind.

My Lord, Lord Hodge asked me whether the power given to Parliament in Article 18 of the treaty of European Union was given to Parliament exclusively and I do say, I do say that, exclusively to Parliament and to those authorised by Parliament. Against the background of the claim of right, and the Bill of Rights, it would have been extraordinary if the power to change the laws in use within the Kingdom of Scotland, which is the phrase in the Act of Treaty of Union, had been given to the Crown.

The question of who had authority, as regards Scots law, was a matter of significance to the framers of the union legislation. I say it is not a matter simply of footnoting to note that the power to change the laws of Scotland were given to Parliament and of course to those whom Parliament has authorised, and not to the Crown.

I say that is consistent with what I say is the limiting rule of constitutional law, that sets bounds to the use of the prerogative and precludes the United Kingdom Government from asserting the power to make the significant changes, or to make the significant changes to the laws of the land by virtue of the prerogative that they claim in this case.

Unless there are other matters that I can assist the court with, those are the submissions which I wish to lay before the court.

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