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

It is interesting that my Lord should put it in that way, because obviously -- my learned friend Mr Gordon mentioned it, there is dialogue between the various administrations, not a convention. This is where I come to an important point about the way in which my learned friend the Lord Advocate seeks to present his case, because he tries to draw together not just issues that might touch upon a convention, but to incorporate within that simple matters of dialogue or practice that have gone on for a number of years with regard to relations between Westminster and the devolved administrations.

It comes up because of the way in which matters are expressed, in particular in the Lord Advocate's written case. In our printed case, and in the printed case for the Attorney General for Northern Ireland and in the printed case of the Counsel General for Wales, reference is made to the Sewel convention. We can understand what the content of the Sewel convention is. It finds its origins in the statement by Lord Sewel during the passage of the Scotland Act 1998; the same wording appears in the Smith Commission report and the same wording is then to appear and does appear in section 28(8) of the Scotland Act as amended by section 2 of the Scotland Act 2016.

However, my learned friend the Lord Advocate refers to what he terms the legislative consent convention, and in my respectful submission, there is no such thing. Now, this is not a point of pedantry. What my learned friend the Lord Advocate seeks to do is to subsume within his legislative consent convention those matters that are dealt with, for example, by the memorandum of understanding between the governments, and those matters that are dealt with in the devolved guidance notes, prepared by officials for the relationship and control of the relationship between Westminster and the devolved administrations. So in respect of Scotland it is DGN 10, in respect of Wales it is DGN 17, in respect of Northern Ireland it is DGN 8.

Now, I would just notice, and this is in the papers, that during the passage of the Scotland Bill 2016, various attempts were made to amend clause 2 in order to incorporate within what was then the Sewel convention as properly understood, references in addition to the contents of DGN 10, DGN 8, DGN 17 in order to expand the convention that was then going to be expressed in statutory forms.

None of those amendments proceeded, and one of the points made in response to these attempts at amendment was that the practice that was followed between officials of the respective administrations was something that could change from time to time and should not be set in any form of statute. Whereas the convention itself could be and was to be.

There was a further aspect to that, which was that so far as these considerations were concerned, the standing orders which dealt with what are termed legislative consent memoranda and legislative consent motions were the standing orders of the devolved administrations. They had nothing to do with Parliament at Westminster.

These were mechanisms that the devolved administrations had developed in order to deal with the application and operation of relationships between the devolved administrations and Westminster.

And yet, and I invite you to go back to the Lord Advocate's case, because at one point he suggests that his legislative consent convention is the Sewel convention, but I invite you to go back to his written case, where it becomes increasingly apparent that he has brought into that new convention, if I can call it that, a great deal of procedural detail and practice that is actually contained within the DGN, the devolved guidance notes.

Indeed, in response to a question yesterday from my Lord, Lord Reed, when asked about the language of section 28(8) of the Scotland Act 2016, my learned friend the Lord Advocate answered, and I quote:

"... it points back to language which appears in the memorandum of understanding and which has been articulated in practice."

With respect, it does not. It refers directly back to the statement made by Lord Sewel which was repeated in the Smith Commission report and incorporated in section 28(8) of the Scotland Act.

Once we understand that, we can put in context what is actually meant by the convention and its operation. With regard to the position of Wales and Northern Ireland, of course there is no statutory expression of the Sewel convention, although I notice that my learned friend the Lord Advocate said this morning that even without section 28(8), his position would remain the same.

I would observe, and reference was made to this in our written case, that if one wants guidance, as regards such a convention, one can look perhaps no further than the Privy Council case of Madzimbamuto that I referred to in my opening submissions to the court, and in particular the observations of Lord Reed with regard to the relevance and application of such a convention.

Now, I accept that in one sense section 28(8) of the Scotland Act does alter the position of Scotland but not, I would suggest, very much. My learned friend the Lord Advocate says there must be some legal content to the convention, although it is not clear how this could play a legal role. I would respectfully observe that, when my Lord, Lord Hodge raised the point about section 28(8) and its incorporation into statute, he observed that it may have been there to preserve what had been a convention, so that if it was to be intruded upon, it would have to be intruded upon by primary legislation. In other words it was to be seen as fixed.

That is why it was restricted to the very particular terms of the Sewel convention itself and not extended to embrace practice, practice notes, or dialogue between the respective administrations. Indeed, there are precedents for that. The Ponsonby convention, for example, was finally, after many, many years, incorporated in statutory form, I would infer in order that it could be seen to be fixed and only intruded upon by primary legislation on the part of Parliament.

Just because it is incorporated in statutory terms and in order to be preserved in present features does not mean the convention is justiciable, and I would emphasise a number of points which underline this.

First of all, the language of section 28(8) itself, the Sewel convention, is the language of political judgment. I don't seek to expand upon that at this time, and I did make submissions on this point before. Section 28(7) --

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