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Parliamentary debates and questions

S5W-07107: Joan McAlpine (South Scotland)

Scottish National Party

Date lodged: 9 February 2017

To ask the Scottish Government what costs were incurred by its involvement in the case of R (on the application of Miller and another) v Secretary of State for Exiting the European Union and (Agnew v HM Government and McCord's Application).

Answered by: Michael Russell 17 February 2017

Following the referendum in June 2016, separate cases were brought in the High Court in England & Wales (R (Miller) v. Secretary of State for Exiting the European Union) and the High Court of Justice in Northern Ireland (Agnew v. HM Government and McCord's Application) on the constitutional requirements for the UK to notify its intention to withdraw from the European Union under Article 50 of the Treaty on European Union. The cases addressed both the legal basis for notification, and, in Northern Ireland, the application of the Sewel Convention to any potential legislation.

Recognising the potential relevance of the cases to Scotland, the Scottish Government took an active interest in both cases. The Government instructed Counsel to attend the High Court in London in the case of Miller. The Lord Advocate submitted a written note on the scope of the Sewel Convention to the High Court in Belfast.

The initial judgment in Miller was appealed to the Supreme Court, and the Northern Irish cases were also referred to the Supreme Court. The key issues for the Supreme Court were: (i) whether an Act of the UK Parliament would be required to give notification under Article 50; and (ii) whether, under the Sewel Convention, the consent of the Northern Ireland Assembly (and, by implication, the Scottish Parliament and the National Assembly of Wales) was required to such an Act of the UK Parliament.

Given the significance of the case for the UK’s constitutional arrangements, and the effect on devolved competence of notification under Article 50, the Lord Advocate applied to intervene in the cases, and the Supreme Court granted his application. The Counsel General for Wales also intervened and the Attorney General for Northern Ireland appeared.

In his detailed written case, and oral submissions to the Court, the Lord Advocate contended: (i) that an Act of the UK Parliament would be required to trigger Article 50 inter alia because of the impact of withdrawal from the EU on the constitutional structures of the UK; and (ii) that the Sewel Convention applied, and was capable of being considered by the Supreme Court. The Lord Advocate was supported in the preparation and presentation of his argument by external Counsel and Scottish Government officials.

The UK Supreme Court held: (i) that an Act of the UK Parliament would be required to provide the legal basis for notification under Article 50; and (ii) that, despite the provision on the Sewel Convention in section 28(8) of the Scotland Act 1998, it remains a political convention, not a legal requirement, and it is not for the courts to give a legal ruling on its operation or scope. The Court acknowledged the important role which the Sewel Convention plays in facilitating harmonious relations between the UK Parliament and the devolved legislatures but did not express any view on its scope as a political convention, nor whether consent was required, as a matter of convention, for legislation on triggering Article 50.

Details of expenditure related to these cases is set out in the following table. The external legal fees include fees of counsel and solicitors. The Lord Advocate's expenses are not included, as Ministerial costs are routinely published by the Scottish Government.



External legal fees*


Court fee: application to intervene


Room hire and catering at Supreme Court


Travel, accommodation and subsistence for Scottish Government officials




*Net cost after VAT recovery