Saturday 24 December 2016

Brexit litigation in the Supreme Court - Devolution (3) - Lord Advocate for Scotland and Counsel General for Wales

The castle at Harlech
This is the 3rd post looking at the devolution aspects of the Brexit litigation in the Supreme Court of the UK.  The post looks at the submissions by the Lord Advocate for Scotland (Mr James Wolffe QC) and the Counsel General for Wales (Mr Mick Antoniw - represented in court by Mr Richard Gordon QC).

Lord Advocate for Scotland - Transcript Day 3 from page 143 and Day 4 to page 15

Scotland voted in favour of the UK staying in the EU by 62% to 38% (Turnout 67%) - with all 32 council areas backing Remain. 

Day 3 - Morning and afternoon combined (PDF)

Day 4 - Morning and afternoon combined (PDF)

Written material - - The Lord Advocate (Scottish Government).

The LA submitted that only the Queen in Parliament has the legal power to authorise and effect changes to the constitutional law of the UK.  He invited the court to take the view that use of the prerogative in the way proposed was inconsistent with the constitutional principles articulated in the Claim of Rights 1689 for Scotland and the Bill of Rights for England and Wales.  The 17th century legislation enacted an "imperative rule of law" which set an outer limit to what may lawfully be done by prerogative.  The foreign affairs prerogative does not normally "buck up" against the imperative rule because of the UK's dualist system regarding international treaties but, when it does, the prerogative has to give way to the imperative rule.  Mr Wolffe said that this has not changed since the 17th century and has not changed even though there are now four representative legislatures in the UK.  He also noted that the Acts of Union gave the power to alter the law in Scotland to the Parliament of Great Britain and not to the Crown.  Lord Hodge asked: "Exclusively given?"  Mr Wolffe reiterated that it was given to Parliament.

The present case involved the scope and limits of the foreign affairs prerogative relating to treaties.  Mr Wolffe was NOT submitting that the law relating to prerogative differed in Scotland to that in other parts of the UK - Day 3 pages 146 to 148. The Crown in right of the United Kingdom engages in relations on the international plane on behalf of the United Kingdom and it makes no sense to suggest that the situation varied within 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 English law placed on those effects. This was because - firstly, Scots law adheres to the same dualist theory as English law and, secondly, because Scots law like English law contains the same limiting rule which precludes the executive from changing the law of the land by an act of the prerogative.

Mr Wolffe then turned to the question of legislative consent.  The Scottish Parliament does not have a veto on the decision to withdraw the UK from the EU but the legislative consent convention is a matter of constitutional significance.  Examples were then given of how devolved matters would change as a result of leaving the EU.  At a constitutional level, withdrawal from the EU will effect a significant change on the legislative competence of the Scottish Parliament and the executive competence of the Scottish Government - Transcript Day 3 pg. 151.

Mr Eadie QC (for the government) had accepted that the ECA72 section 2(1) would become redundant on withdrawal but the same was true of some important provisions in the Scotland Act 1998 - e.g. section 29(2)(d) and section 57(2) and also Schedule 5 para 7(2)(a).   Those provisions affect the competence of the Scottish Parliament by reference to EU law.  Whilst Schedule 5 reserves relations with the EU to the UK government, this reservation contains an exception for the observing and implementation of EU law.  At withdrawal, those provisions would become disabled - contrary to the Claim of Right 1689.

Mr Wolffe then drew the court's attention to the Explanatory Notes to the Scotland Act 2016 where it was noted that a Legislative Consent Motion had been used to enact the 2016 Act - see HERE.  (The same applied to the Scotland Act 2012).  Discussion then followed about the nature of legislative consent motions - Transcript Day 3 pages 154 to 158.  On page 158, Mr Wolffe submitted that there should be no dispute that the legislative consent convention applies where there are changes to the legislative competence of the Parliament or the executive competence of the Scottish government.  That was how the LCM had been consistently applied in practice.

Mr Wolffe continued to say (Pg. 159) that it was a fallacy to argue (as did the Advocate General for Scotland) that because something is reserved it cannot engage the legislative consent convention.  This fallacy also underlay the McCord judgment (at paras 120 to 122) where Maguire J had said that because international relations are reserved, it had nothing to do with the Northern Ireland Assembly.

Discussion then moved to the meaning of "with regard to devolved matters" - Scotland Act 1998 s.28(8) .  [Note: This was the enactment, by the Scotland Act 2016 section 2, of the Sewel Convention].  Later, at page 163, the word "normally" was also discussed and Mr Wolffe accepted, in response to Lord Sumption, that it was difficult to see how "normally" engaged a justiciable issue. BUT Mr Wolffe said that he did not need to make an argument about "normally" because the phrase "with regard to devolved matters" was one upon which the court could adjudicate (pg 163).

Mr Wolffe was pressed by Lord Mance (page 164) about the applicability of the convention since this case involved a proposed use of prerogative and not legislation. [Note: The convention would arise if an Act was required to authorise the Art 50 notice].  For the full discussion see pages 164 to 168.  This concluded by Mr Wolffe saying that the court was seized of the question of what the constitutional requirements of the UK are to make a the decision to withdraw from the EU.  He invited the court to acknowledge in the Miller case .... and in the Northern Irish case ... that one of those requirements is the convention.  That concluded Day 3.

Day 4 began with Mr Wolffe continuing his submissions. Discussion continued about Scotland Act 1998 section 28(8).  As a statutory principle it was in principle justiciable.  The court did not need to address the word "normally" since the question was whether the convention applies at all and that depended on the meaning of "with regard to devolved matters."  IF the convention is engaged then matters would pass to the political actors to determine the outcome.

At this point, various questions followed from Lord Mance, Lady Hale and Lord Reed.  At Day 4 page 8 there is this exchange between Lord Reed and Mr Wolffe:

LORD REED: If we accept your submissions, it follows that if notification under Article 50 requires legislation,then on your submissions, if that legislation is, with regard to devolved matters, then the convention -- then it falls within the scope of the convention.


LORD REED: Yes. If on the other hand we accept that notification does not require legislation, then plainly the convention could not apply. It rather sounds as though the practical significance of this submission depends on the view we take on the primary issue between the appellants and the first and second respondents.

THE LORD ADVOCATE: It does, my Lord.

Mr Wolffe then added that the main issue had to be decided in the present constitutional context with the devolved legislatures and their competencies - (Day 4 pages 8 and 9).

Mr Wolffe then addressed a point raised by the Advocate General for Scotland that there was no Bill at the moment and the need to apply the convention often depends on the exact content of the Bill in question.  Mr Wolffe argued that the changes proposed by use of the prerogative in this case were so radical as to be a difference in kind.  Furthermore, the question of who had the authority, as regards Scots Law, was a matter of significance to the framers of the Act of Union 1707 Article 18.  That was consistent with the limiting rule of constitutional law that sets bounds to the use of the prerogative and precludes the UK government from asserting the power to make the significant changes to the law of the land that they claim in this case. (Day 4 page 15).

That concluded the Lord Advocate's submissions.

Counsel General for Wales (represented by Richard Gordon QC) - Transcript Day 4 from page 15 to page 60.

Day 4 - Morning and afternoon combined (PDF) 

Written material - The Counsel General for Wales (Welsh Government).    Key legislation - Government of Wales Act 2006 

In the referendum, Wales voted 52.5% remain and 47.5% leave.  Turnout 71.7%.

Introductory note: This submission raised a very basic issues concerning the prerogative. Since the Bill of Rights 1689 it can be said that ALL prerogative power is limited in scope in that it may not be used to dispense with the domestic law of the land - "the dispensing principle."  Then there is the "abeyance" principle which is that where a statute covers the ground, the prerogative power may not be used.  Many cases illustrate the latter - principally De Keyser.

Mr Gordon's submissions fell into 3 parts. (1) He sought to expose a "fault line" running through the government's whole argument; (2) to make some points of constitutional principle and (3) to develop 2 core propositions of law set out in para 4 of the written case - i.e. (a) no prerogative power to modify the competencies (under the Government of Wales Act 2006) of the National Assembly for Wales and the Welsh government and (b) Sewel convention applies to any modification of the legislative competencies and this cannot be short-circuited by prerogative.

Mr Gordon began by making it clear that the view of the Welsh government was that the referendum result had to be respected.  Wales did not wish to stop or to stall Brexit but the constitutional issues went far beyond Brexit (Day 4 pg 16).  

A fault line

The government's case argued for a wide prerogative treaty-making (and unmaking power) BUT this ignored the most basic and elementary constitutional principle of all that, no matter what else prerogative may do, it may not dispense with laws passed by Parliament - "the dispensing principle" - which has existed since the Bill of Rights 1689 and cannot be modified by the court "even if to do so may be temporarily expedient in the interests of a flexible constitution."  The government argument forgot this principle (pg 17).  Mr Gordon then put forward 9 propositions - (fuller discussion is at Day 4 pages 18 to 29).

First - this case is about a claimed prerogative power and not a statutory power

Second, it was not disputed that government has a prerogative power to make and unmake treaties;

Third, there are legal constraints applying to all prerogative powers;

Four, the basic constraint is that prerogative may not be used to dispense with laws;

Fifth, other legal constraints include the principle that prerogative may not be used to nullify rights or frustrate statutory schemes including altering the content or striking a line through statutory provisions;

Six, where there is NO existing prerogative power, no question of whether parliament has abrogated or revived the power arises - acceptance that there is a treaty making power does not mean that there is a treaty making power to dispense with laws or to subvert statutory schemes or to crucify human rights;

Seven, triggering Art 50 will dispense with laws under the Government of Wales Act 2006

[See at this point the discussion at pages 19 to 22].

Eight, if triggering Art 50 will dispense with one or more laws then no question of abrogation of prerogative power arises.  This prompted intervention by Lord Neuberger (pg 23) who said that assuming Mr Gordon was right in saying that the government could not take away rights it was necessary to address Mr Eadie's argument that the ability to do this is inherent in the statutory scheme.

Nine, if the submissions were correct so far, the government's reliance on De Keyser and the entire statutory scheme following the ECA72 was misconceived.

At pages 23 to 29 there is discussion of the notion of a "clamp" on prerogative power.  This arose during Mr Eadie's submissions on Day 1 - (a further post will look at this).  However, according to Mr Gordon, since a prerogative power may not be used to remove rights the question of a "clamp" did not arise.  The principle of non-dispensation had aborted the possibility of using prerogative power in the way put forward by the government.

Constitutional principles

The court was looking at a situation in which it is proposed to use prerogative power to drive through the most major constitutional change since at least 1972.  As well as looking at Dicey's views, important as they are, the legal scope of prerogative power had to be examined against the modern evolving constitution which has seen developments such as constitutional statutes, the growth of judicial review since the 1960s, the Human Rights Act and "the emerging but fragile devolutionary development (pg 31).  The use of prerogative was declining and Mr Gordon noted that the Brown government wished to put prerogative powers on a statutory basis.  [Note: Some might wish this had been done!].  The prerogative measured against the trajectory of devolution simply did not match and yet what is being proposed here that as a matter of common law, the prerogative can be used without any recourse to Parliament to drive through the most major constitutional change of the last 40 years.

Sewel is a Convention.  [Note: a pure convention as far as Wales is concerned irrespective of the Scottish position].  Convention is nevertheless an important force - a glue that holds our unwritten constitution together (pg 32).  The common law could take notice of conventions in a way that has nothing to do with the enforceability of those conventions (pg 33).

At the heart of these appeals was the proper distribution of power between Parliament and the executive (pg 33 lines 14 to 21) .  The Brexit vote split the UK and raised the question of who is going to judge what happens next.  However one approaches this question (pages 34 and 35) the answer must be Parliament.  All the recent events have nothing to do with this case and, in particular, the Referendum Act 2015.  The 2015 Act had served its purpose.  It was dead and one could not  revive a corpse by tearing up the death certificate.  The 2015 Act could not be revived and given a separate purpose as a normative statute because to do that would be to give a statutory power and not a prerogative power.

At this point there was discussion about what was in the devolution legislation to show that use of prerogative was not available.  Mr Gordon pointed to the Government of Wales Act 2006 section 109 which sets out a mechanism for changes to legislative competences (pg 37).  It must have been intended that this mechanism would be used to effect changes to those competences and this would require legislation and then engage the Sewel Convention. 

Third stage - Core propositions

Proposition 1 - is set out at para 20 of the written case which is in a section headed "giving notification will alter the competencies of the Welsh Assembly and the Welsh government under the 2006 Act."  Para 20 reads: "In the Counsel General’s submission, there is no prerogative power to alter, or dispense with, statutory provisions. In this case, triggering Article 50 will dispense with certain provisions of the 2006 Act that define the competence of the Assembly and the Welsh Ministers. The prerogative therefore cannot be relied upon to give notice under Article 50."

The Counsel General's written case (from para 30) set out the statutory provisions that would be dispensed with - e.g. GoWA 2006 section 108(6)(c), section 109 etc.  Mr Gordon added (at Transcript pg 44) that Orders in Council making changes to the competencies required resolutions of each House of Parliament and approval by a resolution of the Assembly.

At page 47 Mr Gordon considered the words "regarding devolved matters" which, in his submission, could only mean does an action taken affect the legislative competence of the Welsh Assembly.

Next, at pg 48, Mr Gordon said the case was not about whether a prerogative had been abrogated.  If you do not have a prerogative to begin with there is nothing to abrogate.  He then referred to para 57 of the government's written case.  Para 57 claimed that the correct principle was that prerogative could alter domestic law and deprive individuals of rights if the powers are part of the prerogative and if the change is not inconsistent with the requirements of an Act of Parliament which occupies the filed in question.  Mr Gordon said this was wrong.

Some statutes (e.g. double taxation) may contain the possibility of what Mr Gordon described as "expansion or contraction" and, if so, prerogative may have effects but prerogative could not be used to dispense with the law itself.

Proposition 2 - Sewel - at Transcript page 52.  The importance of Sewel was that it required dialogue between Parliaments.  This was important because (i) the degree of autonomy of a devolved legislature was a sensitive and growing area; (ii) the convention envisaged dialogue between bodies with legislative competence; (iii) it required the UK Parliament to consider whether it would legislate without the consent of the devolved legislature in question and (iv) the decision to legislate was for Westminster and was NOT the prerogative.  Devolution was therefore an important element in deciding the limits of the prerogative.

Mr Gordon concluded by saying (pg 59-60) - "The Government's case as it applies to Wales is that the framework of devolution in Wales may be, by the prerogative, stripped back and radically altered without any statute at all, in disregard of  processes designed to ensure the stability of devolution, simply in order to give effect to the popular will expressed in an advisory referendum. That is, we say, not the reflection of a modern constitution; it is a reversal to a wider exercise of prerogative power ...."

See also Devolution 1 and Devolution 2 and the final post Devolution 4

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