Policy paper

Supplementary Supreme Court Printed Case of the Secretary of State for Exiting the European Union

This document is the supplementary Supreme Court Printed Case of the Secretary of State for Exiting the European Union.

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The Lord Advocate and the Counsel General to the Welsh Government have filed submissions in the Supreme Court in the Article 50 appeal. The Government has filed supplemental submissions, published today, to respond to the devolution issues raised by them.

The UK Government’s response makes the following points:

  • International relations, including relations with the EU, are a reserved matter (these powers remain with the Westminster Parliament and Government).

  • For the same reasons as are set out in the Government’s main printed case in relation to the European Communities Act 1972, the devolution legislation assumes but does not require the UK to be a member of the EU. The devolution legislation does not, therefore, prevent the Government from triggering Article 50 using the prerogative or require new primary legislation. Use of the prerogative would not alter the essential structure, architecture or permanence of the devolution settlements.

As to the Sewel Convention (the convention that the Westminster Parliament will not normally legislate with regard to devolved matters without the consent of the relevant devolved legislature):

  • The Convention is only relevant when there is a Bill before the Westminster Parliament. It does not arise in relation to use of the prerogative, which is the question before the Supreme Court in the current case.

  • In any event, the Convention is subject to a clear internal exception (the Westminster Parliament will not “normally” legislate). Whether circumstances are “normal” is a matter for the Westminster Parliament and not the Court.

  • The Convention is not legally enforceable; it is a political convention. That is not altered by a provision of the Scotland Act 1998 referring to the Convention.

  • As the Northern Ireland High Court held, the Convention would not apply here in any event because any legislation authorising Article 50 to be triggered would not be “with regard to devolved matters”. Any dispute about the scope of the Convention is not a matter for the Court – it is ultimately for the Westminster Parliament.

  • A political convention, which contains an internal exception and does not purport to be a rule, cannot be a constitutional “requirement” as the Lord Advocate suggests.

  • If the Counsel General accepts that the Convention is not legally enforceable (as he does), he cannot argue that it is unlawful to use the prerogative in order to avoid it.