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

My note says 4(3) and 5. The reference at 4(3) is to the exclusion of foreign affairs from the powers conferred on the Welsh Assembly. So that is the first argument put against us. That is the first argument put against us, because I think it is said: well, you have not got anything relating to devolved matters that affects your competence, or something of that sort.

The simple point here is, and it is the same argument I imagine that the learned Lord Advocate would put, the fact that you have something reserved outside the specific devolved competences is simply a reference to the method to achieve an outcome. What actually matters is the outcome, and the outcome where you exercise a foreign affairs jurisdiction may well be to affect areas of competence of the Welsh Assembly. So that is why the words, "regarding devolved matters", can only sensibly mean, quite apart from the practices of the Sewel convention, one thing: they mean, does an action taken affect the legislative competence of the Welsh Assembly.

But then the devolution submissions go on to say, and I think this is at 5, what is fatal to our case, they say, is that the legislation, far from occupying the field, declines to enter the field occupied by Parliament at all, and demonstrates that nothing in the devolution legislation abrogates the prerogative.

Well, this is the confusion that I mentioned earlier, and we are not talking about an abrogation of the prerogative. So this is reliance which confuses two quite separate principles. The first principle is that Parliament may abolish parts of the prerogative, and that is known as abeyance. The second principle, however, is that if you have got an existing head of prerogative, you cannot -- if you have not got an existing head of prerogative, it follows that there is nothing to abrogate. So the confusion of principle that runs through Mr Eadie's arguments, run through the devolution submission responses as well.

If you look just very briefly, one sees evidence of this confusion if your Lordships and your Ladyship look at paragraph 57, striking example in the Government's case, the Government's case now, not the devolution submissions, and I will read from it, if I may.

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