Tuesday 20 December 2016

Brexit litigation in the Supreme Court - Devolution (1)

Arguments based on the various devolution settlements were put forward with a view to persuading the Supreme Court to declare that the UK government could not, without further intervention by Parliament, lawfully use prerogative power to give notice to the European Council under Article 50 (Treaty on European Union).  For its part, the UK (central) government argued that the various devolution settlements have not affected its power - (if it exists) - to give the notice.

With the exception of the  judgment of Maguire J in Re McCord's Application [2016] NIQB 85 there were no first instance hearings of the devolution questions - previous post on this case. There were Interventions by the Lord Advocate for Scotland and the Counsel General for Wales.  From Northern Ireland there was a Reference under the Northern Ireland Act 1998 from the Attorney General for Northern Ireland and also from the Court of Appeal Northern Ireland. (See this post for detail of Interveners).

The Supreme Court's oral hearings ran to a timetable and took place against a background of written cases (and supporting materials).


The Lord Advocate for Scotland (Intervention on behalf of the Scottish government) put forward a Written case - The Lord Advocate (Scottish Government).

This was countered by arguments put to the court by the Advocate General for Scotland (Lord Keen of Elie QC).  Those arguments were based on the government's written case on Devolution issues -  Supplementary: Secretary of State for Exiting the European Union (devolution issues). The Advocate General also adopted as part of his case a paper on devolution issues by Dr Tony McGleenan QC and Paul McLaughlin - (see Transcript Day 2 at p.75).

Key legislation - Scotland Act 1998

Scotland has a "reserved powers" model of devolution so that a matter is devolved to Scotland unless specifically reserved to the UK Parliament.


The Counsel General for Wales (Intervention on behalf of the Welsh government) put forward a written case which was supportive of the opposition to the UK government on devolution issues - The Counsel General for Wales (Welsh Government).  The Counsel General's position (and that of the Welsh government) is that the result of the referendum to leave the EU should be respected.  However, the process of withdrawal must, and may only, be carried out consistently with the appropriate legal and constitutional requirements.   Those requirements are highly material to the devolution settlements in the UK.

Key legislation - Government of Wales Act 2006

Wales has a "conferred powers" model of devolution by which all matters remain for the UK Parliament unless they are expressly conferred on Wales by the legislation.  The system is to change to a reserved powers model.

Northern Ireland:

Key legislation - Northern Ireland Act 1998

Northern Ireland has a devolution model which devolves power other than "reserved" and "excepted" matters.

A)   The Attorney General for Northern Ireland made a Reference (Northern Ireland Act 1998 Schedule 10 para 33) relating to four devolution issues about which the High Court of Northern Ireland sought answers - Attorney General for Northern Ireland. The four issues are set out in paragraph 21 of that document.

A response to this reference was submitted by the various applicants to the Northern Ireland litigation - Stephen Agnew, Colum Eastwood, David Ford, John O'Dowd, Dessie Donnelly, Dawn Purvis, Monica Wilson, The Committee on the Administration of Justice, The Human Rights Consortium

B)    The Court of Appeal of Northern Ireland made a reference in the Raymond McCord case - Raymond McCord.  The question referred is:

"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."

The Northern Ireland Act 1998 was described by the late Lord Bingham as "in effect a constitution" for Northern Ireland - Robinson v Secretary of State for Northern Ireland - para. 11 - "The 1998 Act does not set out all the constitutional provisions applicable to Northern Ireland, but it is in effect a constitution."  As is well known, the Act came about following the difficult "peace process" of the 1990s.

Section 1 is concerned with the Status of Northern Ireland.  It states:

(1) Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1.

(2) But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland.

The situation in Northern Ireland is particularly sensitive and EU membership and Human Rights are both interwoven into the devolution arrangements.  The people of Northern Ireland voted to remain in the EU and there is little or no desire to see a hard border between the Republic of Ireland (in the EU) and Northern Ireland (part of the UK but out of the EU).

Sewel Convention:

The so-called "Sewel Convention" is a common element to all of the devolution arguments. The Convention is that the UK Parliament would not normally legislate with regard to devolved matters without the consent of the devolved legislature.  The Convention has recently been put in statutory form for Scotland by the Scotland Act 2016 section 2.  Whether putting the convention into statutory form has made any real difference remains to be seen.  The UK government considers that the matter is for resolution politically and, as such, is non-justiciable - see para. 34 of the government's written case on devolution issues.

The convention would come into play if legislation is required to authorise Ministers to give Art 50 notice to the EU.  In such circumstances, Legislative Consent Motions (LCM) are likely to be raised by the devolved Parliaments / Assemblies.

Further posts on devolution are at Devolution 2, Devolution 3 and Devolution 4

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