Monday 26 December 2016

Brexit litigation in the Supreme Court - Devolution (4) - Government case

This is the 4th post on devolution issues in the Supreme Court of the UK Brexit litigation and looks at the submissions by the Advocate General for Scotland (Lord Keen of Elie QC) and by the Attorney-General for Northern Ireland (Mr John Larkin QC).

The government submitted a supplementary written case - Supplementary: Secretary of State for Exiting the European Union (devolution issues).

Advocate General for Scotland (AGS)

Transcript Day 2 at pages 74 to 117. 

The Advocate General also adopted as part of his case a paper on devolution issues by Dr Tony McGleenan QC and Paul McLaughlin.

The AGS addressed 3 themes.  (1) Sovereignty and the prerogative; (2) the constitutional status of the devolution legislation and (3) the Sewel Convention.

1. Sovereignty and the prerogative - The Lord Advocate's written case para 30 drew attention to the view of Lord Hope in Jackson v Attorney General where, at para 104, Lord Hope said that "Parliamentary sovereignty is no longer, if it ever was, absolute" and also to the dictum of Lord Cooper in MacCormick v Lord Advocate 1953 where it was said that the English principle of the unlimited sovereignty of Parliament had no counterpart in Scots law.  The AGS said that the passage from Lord Cooper's judgment is often cited as a possible exception to the question of parliamentary sovereignty, but it has never gained traction in any court of law as far as he was aware.

The AGS then turned to the written case for the Independent Workers of Great Britain
which was rather dismissed (at Transcript pg 77) as being "poetic or romantic licence."  Nevertheless, the AGS quoted para 3.4 of the case where a Scottish Act of 1703 is referred to:

Parliament anent Peace and War:

“Our sovereign lady, with advice and consent of the estates of parliament, statutes, enacts and declares that after her majesty's decease, and failing heirs of  her body, no person being king or queen of Scotland and England shall have the sole power of making war with any prince, potentate or state whatsoever without consent of parliament, and that no declaration of war without consent foresaid shall be binding on the subjects of this kingdom, declaring always that this shall no way be understood to impede the sovereign of this kingdom to call furth, command and employ the subjects

thereof to suppress any insurrection within the kingdom or reject any invasion from abroad according to former laws; and also declaring that everything which relates to treaties of peace, alliance and commerce is left to the wisdom of the sovereign, with consent of the estates of parliament who shall declare the war. And her majesty, with consent foresaid, rejects, casses and annuls all former acts of parliament in so far as they are inconsistent herewith or contrary hereunto.”
The AGS emphasized that the Act made it perfectly clear that the prerogative right in foreign affairs remained the prerogative right of the sovereign and this was because of the words highlighted in red in the box above.  This was 4 years after the Claim of Right 1689.  There was no further discussion of this Act.  It is no longer on the statute book.

The AGS the turned to the prerogative and noted that the prerogative in Scotland was the same as in England.  He cited the Burmah Oil case as authority for that proposition (Transcript pages 78-80) which, in any event, does not appear to have been disputed.

2. The devolution legislation - AGS accepted that the Devolution Acts were constitutional statutes.  Whilst they were highly significant, no special method of interpretation applied to them.  For that proposition the AGS cited Imperial Tobacco v Lord Advocate in the Court of Session (see Lord Reed at para 58)  and also in the the Supreme Court.  AGS also cited the Agriculture (Wales) case.  AGS referred to the speech of Lord Bingham in Robinson - Transcript 84-85.  Lord Bingham described the Northern Ireland Act 1998 as "in effect a constitution" and said that it should be interpreted "generously and purposefully, bearing in mind the value which the constitutional provisions are intended to embody."  The AGS said that he did not believe anyone would take exception to that in the context of all those acts which are regarded as of constitutional significance.

At Transcript 85 to 87, the AGS referred to the devolution legislation for Scotland, Wales and Northern Ireland and said that it was clear that foreign relations, and in particular EU matters, were not within the competence of the devolved legislatures. This was, he argued, fatal to reliance on the devolution legislation as giving rise to any necessary implication, or indeed any other indication, that the government cannot exercise its foreign affairs and treaty prerogative in the ordinary way.

The devolution legislation assumes that the UK is in the EU but does not require it to be (page 88) and EU law is defined in that legislation in an equivalent ambulatory fashion to the ECA72.  Lord Mance intervened to ask whether that was the significant point.  He said: "The fact that foreign affairs are reserved to the UK government doesn't necessarily mean that it didn't, in the devolution legislation itself, commit itself to exercise or not to exercise the prerogative in a particular respect, and your argument is that it didn't because essentially the references to the EU are ambulatory."   The AGS replied, "Precisely so ...." and went on (pg 89) to accept that the devolved legislation can act as the ECA does, as a conduit, whereby rights and obligations that exist in EU law, or exist in EC law, can flow into Scots law, just as they flow into English law, and indeed flow out again, because one has to remember that the conduit created by section 2(1) flows in two directions; it not only brings in rights and obligations but it takes them out again according to what is done at the EU level, in exercise of the foreign affairs prerogative, to determine regulations and directives under EU law."

{Note: At page 89 lines 16 to 25 there is reference to the Northern Ireland Act 1998 NOT including the words "from time to time" but nobody seems to have taken any point about this].

AGS next argued that the interveners try to make something of the fact that there is a restriction on the competence of the devolved legislatures to legislate contrary to EU law.  AGS said that would apply even without the legislation because of the status of EU law and those restrictions said nothing about the exercise of the prerogative in foreign affairs.

The interveners also tried to argue that withdrawal from the EU would somehow impact domestic law and they pointed to a range of EU secondary legislation that has that effect but suhc legislation could go at any time and not just on withdrawal from the EU.

AGS then turned (page 91) to three points raised by the Agnew case.  First - that Article 50 notification would deprive Northern Ireland's citizens of rights granted by the Northern Ireland Act 1998.  Strictly speaking, what it would deprive them of are rights that would flow into Northern Ireland by virtue of the conduit which allows for EU law rights to arise.  Second - that Article 50 notification would alter the distribution of powers between the Northern Ireland assembly and the United Kingdom by eliminating the constitutive role that EU law currently plays in the definition of competences under the Northern Ireland Act.   AGS said that he had already touched upon that and it did not appear to take the case anywhere.  Thirdly, - that notification would frustrate the purpose and intention of the Act, as it would run contrary to the continued application of EU law in Northern Ireland, and more particularly would impact upon the operation of cross-border bodies.  Whilst that was a complex area, the AGS considered the argument to be unfounded.   The relevant implementation bodies that are referred to, one in particular which is relied upon is the special EU
programme body, are not fixed and determined for all time coming by the Northern Ireland Act.

On the McCord case, the AGS said that section 1 of the Northern Ireland Act 1998 was concerned only with the status of Northern Ireland within the UK and not with membership of the EU.

Summarising this part of his case, the AGS said that the devolved legislation took the court nowhere in the determination of  the issue which it had to decide in the present case.  There was no means by which it could be suggested that the exercise of the foreign affairs prerogative was in any way impinged or qualified by the devolution legislation.

3.   Sewel Convention - At Transcript page 96 the AGS turned to the Sewel Convention.  The AGS took the court to the 2013 Memorandum of Understanding on Sewel and pointed out that this stated that it was not a binding agreement and did not create legal obligations.

Sewel was a "self-denying ordinance" - a political restriction and not an inhibition on Parliamentary sovereignty - (Transcript pg 99-101).  The submissions of the AGS at pages 101 to 104 are cruicial to his case regarding Sewel.  He said that Sewel was a political convention concerning the legislative function of the UK Parliament; it was never intended to be a justiciable legal principle (pg 102); Parliament could legislate at any time on any matter and its freedom was not constrained by Sewel (pg 103).  Furthermore, nothing in the AGS analysis was altered by the enactment of the Scotland Act 1998 section 28(8) since that was just a statutory expression of the convention.  Lord Sumption asked whether the enactment made no legal difference and the AGS said that was the case though he conceded (Pg 104) that the courts could interpret the section. Lord Neuberger sais, "Indeed we have to." AGS added that it was ultimately up to Parliament to decide whether or nor it adheres to the convention as it is interpreted by the court.

The Counsel General for Wales had agreed that the Welsh Asembly could not veto any UK Parliament legislation authorising the triggering of Article 50 but the Counsel General also argued that use of the prerogative would circumvent the Sewel convention.  The Lord Advocate for Scotland had said that a Legislative Consent motion (LCM) was a constitutional requirement for Article 50 purposes.  LCM are the current procedure but other forms of consent could be used (pg 107).

The convention and LCM did not properly arise in this appeal because the case did not concern the passage of legislation (pg 108) and the convention could not apply anyway to legislation authorising Article 50 to be triggered because that is a reserved matter.

Regarding Northern Ireland (pg 110) - the Belfast Agreement (para 7) provided for parties to address any differences that would arise in the context of the agreement being implemented.  The Agreement was not legally enforceable and nothing in it fixed for all time coming the joint implementation bodies referred to in the Agnew case.

Northern Ireland Act 1998 section 75 (equality) was not relevant to the present case.  Here the AGS adopted pages 50 to 63 of the McGleenan paper.

The Referendum Act 2015 - it has been argued that the ECA72 restrained the use of prerogative power to leave the EU.  Parliament was aware of the prerogative when enacting the 2015 Act and had nevertheless enacted it to allow the people to decide.  [Note: Very debatable here - the Act obviously gave the electorate a say but the Act did not expressly make the outcome a binding decision].    Parliament knew that the prerogative could be used to give the notice and if Parliament wished to prevent that it could do so (pg 113).  [Note: Interesting this given the dominance of the executive over much of Parliament's business but legally notice could be prevented].

Lord Neuberger referred to the "clamp" argument which, if accepted, could have meant that Parliament could have removed the clamp but had not done so.  The AGS replied that in the light of the 2015 Act it could not be argued that any clamp remained.

Lord Reed put a view that any "clamp" could have had more to do with ideas about abuse of power. The AGS took up this suggestion (pg 115) and said that, after the ECA72, it might have been seen as an abuse ofm power to use prerogative to take the UK out of the EU but there could be no such abuse in the light of the 2015 Act and referendum.

Attorney General for Northern Ireland (AGNI)

Transcript Day 2 at pages 117 to 143.

AGNI addressed the four devolution questions put forward in his reference to the Supreme Court:

1. Does any provision of the Northern Ireland Act 1998 read together with the Belfast Agreement and the British-Irish Agreement have the effect that an Act of Parliament is required before notice can be validly given to the European Council under Article 50 (2) TEU?

2. If the answer to question 1 is ‘yes’, is the consent of the Northern Ireland Assembly required before the relevant Act of Parliament is passed?

3. If the answer to question 1 is ‘no’, does any provision of the Northern Ireland Act 1998 read together with the Belfast Agreement and the British-Irish Agreement operate as a restriction on the exercise of the prerogative power to give notice to the European Council under Article 50 (2) TEU?

4. Does section 75 of the Northern Ireland Act 1998 prevent the prerogative power being exercised to give notice to the European Council under Article 50 (2) TEU in the absence of compliance by the Northern Ireland Office with its obligations under that section?

The AGNI relied on written submissions for Questions 3 and 4.  He made oral submissions to the court on questions 1 and 2 and also on the McCord questio.  He concluded with some general observations because the outcome of the Miller case was relevant especially regarding devolution question 2.  The Mc Cord question was put to the Supreme Court by the Court of Appeal of Northern Ireland and was:

"Does the triggering of Article 50 TEU by the exercise of the prerogative power without the consent of the people of Northern Ireland impede the operation of section 1 of the Northern Ireland Act 1998."

Beginning with McCord, AGNI said that it did no more than (i) confirm the existing status of Northern Ireland as part of the UK; (ii) provide that this status could not be changed without a poll in favour and (iii) provided for what is to happen if there is a "leave UK" vote.  AGNI said of section 1 that it was "entirely and exclusively about the status of Northern Ireland within the UK, and we say that not even the most daring eisegesis transforms the provision that is addressed solely to the status of Northern Ireland as part of the  United Kingdom into a provision that is also somehow about the EU membership of the United Kingdom." Consequently, the answer to the McCord question should simply be - NO.

AGNI then turned to Devolution question 1 and he looked at the interpretation of constitutional statutes saying that the trend since 2002 has been on purposive interpretation rather than generous (pg 122) and a generous interpretation had been rejected in the Asbestos Diseases case.  Lord Reed said that the approach may depend on the issue (pg123) and referred to AXA v Lord Advocate and Robinson v AG for Northern Ireland where the court was conscious of the constitutional fundamental of new institutions.  The AGNI said that Robinson had been about "letting government work."

The Belfast agreement (pg 125) was not an international agreement but a political agreement which has interplay with the British-Irish agreement and was relevant to the interpretation of the Northern Ireland Act 1998.  The North South Ministerial Council could remain in place even if the UK left the EU provided that Ireland remained but no part of the British-Irish agreement could be construed as committing the UK to remain in the EU (pg 128).

The Belfast agreement had not been precisely translated into the Northern Ireland Act 1998 and care was required when using the agreement as an aid to interpretation of the Act.  The Act expressly kept executive authority vested in Her Majesty.  Nothing in the Act limited the UK government in its conduct of international affairs.  Further, triggering Article 50 would "amend not a comma or full stop" of the 1998 Act and no necessary implication could be drawn from the Act that the prerogative had been restricted (pg 133).

AGNI then turned to some general themes.

The UK does not have a written constitution and whether something was constitutional was determined by Parliament.  Where revolutions occur in our constitutional order, they are the product of representative institutions (pg 135).

AGNI argued that the constitution did not recognise either executive or judicial supremacy but it did acknowledge that the executive, accountable as it is to Parliament, can shape the constitution (pg 138).  Constitutional change was primarily for the politically accountable actors.  AGNI said that that: "The determination by the Government of the United Kingdom that the constitutional requirements of the United Kingdom were met if notification under Article 50 is given under the royal prerogative was a justiciable question.  A determination of this nature should be regarded as constitutionally proper unless it can be shown to conflict clearly with statute.  Or, to put the matter another way, unless it can be shown by the claimant, or those on that side, that some statute expressly, or where by necessary implication, has taken away the prerogative in that sphere. 

(Note: This is a very sweeping proposition which, if accepted, would give the prerogative the widest possible scope.  The executive would have power unless it could be shown that they did not have it rather than it being for the executive to justify a claim to have power).

AGNI was critical of the bullet from the gun analogy.  The Divisional Court had been wrong to assume that laws may not be enacted to deal with the consequences of withdrawal (pg 139).  Giving an example based on the European Parliamentary Elections Act 2002, AGNI said that Parliament might have work to do but the assumption that it would not be done was not a proper one to make.

Previous posts on Devolution are Devolution 1, Devolution 2 and Devolution 3

NEXT - this concludes my look at the Devolution issues raised before the Supreme Court.  It remains to consider the arguments put in the Miller and Dos Santos litigation.

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