Transcripts (perhaps draft) of the Article 50 ‘Brexit’ Appeal hearings at the Supreme Court

  • My Lords, my Lady, good morning. Apologies for a plethora of notes on your desk. Can I suggest that they get tucked in at the beginning of the black 11KBW file you have been in and out of yesterday, and just explain what they are.

  • You should, either there or separately, have cross-referenced versions of both of our cases, somewhere, in response to a question that Lady Hale was asking yesterday. Then you have a note, applicants' note on the Constitutional Reform and Governance Act. That is designed to show you all the bits and pieces that preceded that Act and you will see that in that note at paragraph 1(2) and (3), or paragraphs (1), (2) and (3); you have documents that are already in the bundles, otherwise we haven't given you the copies of the remaining documentation referred to, but we have given you the internet link if you want it.

    We can easily provide you those if you wish, but rather than flooding you with paper, we have given you those. I hope that's helpful. At the end of that note, we have answered the query that Lord Carnwath raised in relation to section 23 of CRAG in its original form, and we have sought to answer Lord Mance's question about the scrutiny process in Parliament in paragraph 4 of that note.

    That is the note on CRAG. You should also have a note on the Great Repeal Bill; I say a note, it is a statement that was made to Parliament by the Secretary of State for exiting the European Union.

  • I am afraid I seem to have two copies of your note on EFTA and no copy of any note on the repeal bill.

  • I have two copies on the next steps of leaving the European Union.

  • We will do a swap then.

  • That still won't get there.

  • Anyway, don't worry, we will sort this.

  • So you have a note on CRAG, I am hoping -- does my Lady have that one?

    Then a statement by the Secretary of State on the Great Repeal Bill, versions of the case that are cross-referenced and then a note on EFTA which I will come to.

  • I now do, because I have done a swap with my Lord.

  • One point from my side on the different subject of in pari materia which you touched on. It seemed to me there might be some further material to be looked at in that connection, and in particular, there are other cases which we have not got in the bundle, Ashworth v Ballard in 1999, citing Lord Mansfield, I think. We could give you these, but Brown v Bennett was the particular one that is actually a decision of my Lord, Lord Neuberger's in [2002] 1 WLR, which has quite a full discussion.

  • Can we make sure you have copies and we will look at those overnight if we may.

  • My Lords, my Lady I have still got a bit to get through, I am afraid.

    Submission three I was on, on the principal submissions on the statutory scheme. Submission three is a broad submission which is that it is fundamentally inaccurate, we submit, to conclude that by the 1972 Act, Parliament intended to legislate, and I am quoting from the divisional court, "so as to introduce EU law into domestic law in such a way that this could not be undone by the exercise of prerogative power".

    That is the issue we were talking about yesterday.

    In relation to that point, we submit first that it did not do so expressly; secondly, therefore, that if there is such a restriction, if there is such an intention in Parliament to be found from the 1972 Act, it can only be by implication; and if you are approaching the matter as a matter of implication, we submit that the implication is impossible if the later scheme of the legislation is taken into account.

    In any event, any implication just viewing the 1972 Act in isolation would have to be based on the fact that it introduced or recognised rights created under treaties, and the implication that is said to flow from that is that therefore you can not drain the Act of significance; it is that point.

    We respectfully submit that nothing flows from that fact, that it recognised or introduced those rights in that way, once it is clear, as it is, that the rights in question are created on the international plane, and that they depend upon the continuing relationship between the sovereign states, which were parties to the European Economic Community as it then was. The consequence of that is that the 1972 Act is merely, we submit, providing the mechanism for transposing, and I dealt with that yesterday.

    It does not and was not intended to touch the exercise of the powers on the international plane. Indeed, the relevant provisions of the Act are not directed to that level, international action, at all. They are directed solely to the transposition into domestic law issue. For that reason, the 1972 Act does not even authorise the Government to make the United Kingdom a member.

    Instead, its fundamental nature is to operate on the clear understanding and application of the dualist principle, and it on any view recognised rights of a very particular kind; rights having existence as a result of international processes in which Her Majesty's Government participates in the exercise of sovereign powers. So it is premised on the continuation, the active continuation of that sort of action, by the Government on the international plane. On any view, that aspect of the foreign affairs prerogative was not merely to continue but was an integral part of that legislation.

    It is that that led to the submission I made yesterday about the rights being in that way inherently limited. The Government could on any view, exercising those powers in that way consistently with the scheme of the Act, have removed rights, have removed a swathe of rights introduced into domestic law through the Act.

    So the case has to be against us that prerogative powers continue to be available, and recognised as continuing to be available, for all purposes to do with our participation in the functioning of the EU, but somehow nevertheless implicitly excluded the power to withdraw.

    Just before I come directly to, is withdrawal different in scale or in kind; and it is a matter we have given some further thought to overnight in light of the fact that my Lord, Lord Wilson was interested in it yesterday, can I just divert briefly back into a question that Lord Mance raised yesterday about the Fire Brigades Union case.

  • Is this part of your third concluding submission?

  • It is, I am afraid. The third submission is the big broad one, which is that there is no basis for concluding that the 1972 Act had that effect.

  • I just need to know for my note.

  • My Lady, yes, so we are not quite diverting, but not quite creating a separate point.

    On FBU and the Fire Brigades Union, and whether or not there is some broader principle in there, we respectfully submit that there is not a broader principle in there. We know, I am not going go back to it now, that in Fire Brigades Union, the home secretary's exercise of prerogative power, you will recall, was to bring in a new criminal injuries compensation scheme. That was held to be unlawful precisely because it precluded him from exercising his statutory authority under section 171 of the Criminal Justice Act of 1988, which was a duty to consider when to bring in a new statutory scheme; and they set out in the judgment the terms of section 17 which makes that entirely clear.

  • It is also authority, isn't it, for the proposition that you cannot anticipate legislation, even though the Government commands a majority in the House of Commons and announces its intention of introducing it?

  • My Lord, for the basic proposition that you have to assume -- take the law as it is currently.

  • Exactly, so you don't dispute that the Great Repeal Bill is not something that we can take into account in any of the matters we have to decide?

  • It is not a matter that relevantly goes to a question of interpretation.

  • It may be relevant to the broader constitutional issues as to whether or not Parliament is going to be involved and if so, how.

  • It is valuable to know, but it has no legal significance.

  • We don't attach great legal significance to it, or indeed any legal significance to it in that way, so I accept the proposition --

  • Can I be clear, do you say it is irrelevant that at some time between your notice and the end of the two-year period, there is going to be legislation dealing with all the things the repeal bill -- is that wholly irrelevant?

  • I am going to come to develop that under my submissions on parliamentary sovereignty. We say it is relevant as a fact, it is relevant as a matter of fact that Parliament has been involved, continues to be involved; there have already been opposition motions and there are going to be further opposition motions as I understand it tomorrow or the next day; and there is inevitably going to be parliamentary involvement in the scheme of legislation.

  • What question is that relevant to?

  • It is relevant to the constitutional significance, amongst other things, of (a) the 2015 Act and (b) to the fact that if we are withdrawing, which we are, the giving of Article 50 notice will not, as it were, inevitably will not, involve a leaving without further parliamentary involvement.

  • It is a point that comes out more in the Attorney General for Northern Ireland's case, that -- there will be no legislation, where the assumption, I would have thought, is that there will be legislation to deal with all these very complex matters.

  • There will have to be, on any view there will have to be.

  • Arguably it might be an abuse of process to go ahead without that anticipation, so it may come in in that sense.

  • But it also demonstrates dualism in action; it is, as it were, the implementation of the decision taken by the virtue of the prerogative power in exercising the Article 50 notice; the idea that Parliament will not be involved cannot possibly be sustained.

  • The argument that Parliament can't be involved cannot be won, because Parliament can always be involved if it wants to be. As you say, it is getting involved and if they chose to bring the whole question of an Article 50 notice to them by actually deciding to debate and indeed to legislate, for example, that no Article 50 notice could be served, that is something they can do.

  • It is really a different way of putting the same point that the Attorney made in opening: Parliament can look after itself.

  • Exactly, but that is not the issue which we are deciding.

  • That is not the issue which you are deciding, but the fact that Parliament is going to get involved is not just that point, that they could get involved if they wanted to because they always can, but it is that in dealing with the domestic consequences of the action on the international plane, Parliament will have to legislate, it will have to legislate to deal with, but that is the usual constitutional way in which things work.

  • But we cannot decide, I think you accept, that any of the issues before us, on the assumption that by the time that the withdrawal actually occurs, the European Communities Act would have been repealed or significantly modified; that may well be a practical possibility, but it is not something that we can assume in point of law.

  • You cannot assume that, because it may not happen, apart from anything else.

  • But we cannot assume that it will not happen. For my part I am not -- having seen (Inaudible) for myself, I am not accepting the suggestion that it is completely irrelevant.

  • And I am not accepting that and I am not sure --

  • I think he probably was.

  • If that was the impression given, I am not. But it is -- I am perfectly content --

  • You seem to have given two diametrically opposed answers in the last five minutes to the same question, but we will obviously have to work out which answer we accept.

  • We will have the transcript.

  • Let me help you. We do not accept that it is legally irrelevant, but we do accept the point, my Lord, which is that you cannot proceed on the assumption that Parliament will necessarily legislate to introduce or to pass the Great Repeal Bill, because that depends on what Parliament decides to do.

  • The debate that you have been having with two of my colleagues perhaps illustrates another point, which is that when you are talking about a constitution in which there are a number of important institutions, the court being only one of them, thinking in terms of the law, that is only part of the picture, and the court has to be conscious of what competence it properly has to exercise in this field, and what matters are properly matters to be resolved by the political institutions, including obviously the Government and Parliament.

  • Yes. We accept that. And assert it, as you know; it was part of the point I built on, and I am going to come back to, about the significance of the 2015 Act, and the Lord Bingham quote from Robinson, and Lord Dyson's proper description of the 2015 Act as being constitutional, a point of significance, we submit.

  • It also relates, I think, to the way in which -- this sort of constitutional issue is unusual in this jurisdiction. In the time I have been here, we have had this case and Axa, I think are really the only cases that have raised major constitutional questions; but there are lessons one can gain by looking more widely afield, if one thinks in terms of constitutions as requiring the collaboration of a number of actors, with each having a limited realm within which it operates.

  • My Lord, yes, we agree with that as well, and it applies not merely to the relationship between courts and Parliament and the proper function of the court in determining those sorts of issues, but it also raises the point I made yesterday, which is that our constitution is built and it is entirely consistent with parliamentary sovereignty that it is built, on the premise that the Government itself, particularly in the sphere of foreign affairs, exercises its own prerogatives. So it has significance in both of those ways. I suppose the final point to add in relation to that, to emphasise the point I made yesterday, is that it goes to the manner in which you go about answering questions as to the current state of the constitution; namely by asking what the position is today, not what the position was 40 years ago.

  • I see. We had better let you proceed with your argument as you had planned to.

  • I will try not to give too many inconsistent answers in the same five minutes if possible.

    I was trying to deal with Lord Mance's points yesterday about Fire Brigades Union, whether it stood for a broader principle. The point that I was making was that it doesn't, we respectfully submit. It does involve the court concluding that the home secretary could not exercise his prerogative power in the circumstances in which the legislation said what it did in section 171(1). We would invite you, without going back to it, to read or to reread Lord Browne-Wilkinson on that issue at 554 F, Lord Lloyd at 502 E, and Lord Nicholls at 506.

    They all effectively concluded that it would be an abuse of his statutory power under section 171 for the Secretary of State to announce that he would not introduce the statutory scheme, and to introduce the prerogative scheme instead. Lord Nicholls specifically held -- that was Lord Lloyd's analysis and Lord Nicholls specifically held that it imposed that section, a duty to keep under consideration when to introduce a statutory scheme, and by introducing the new scheme, he had set his face against that. So in short there was a specific statutory duty to which the home secretary was subject, and from which he had disabled himself from exercising.

    So there is no broad principle of frustration of rights or changes to domestic law; the straightforward, if you will is a -- principle is a straightforward public law principle, and the House in that case was only divided on the interpretation of the facts, had the Secretary of State in fact disabled himself.

    So to be analogous, the ECA in our context would have to contain a provision to the effect that the foreign secretary either must ratify or should keep under review when to ratify. There is nothing indeed in the ratification at all in our particular context. That is what we say and I wanted to go back on Fire Brigades Union in that way.

    Can I then turn to scale, and I don't mean to diminish the force of the point that Lord Wilson puts to me. It is a genuine and real one that the other side takes. So scale or difference in kind, however you choose to put the point, you are actually withdrawing, you are not just altering in a small way, as it were, the corpus of rights in and out; you are actually withdrawing, is the force of the point against us.

    Our answers to that are these. Firstly, we say, the ECA does not touch withdrawal. The fact that it is, that it creates rights which are contingent on the shape of the corpus of EU rights and that they can be removed as well as added to, may not provide a complete answer but it is a step along the way because it shows that Parliament was contemplating removal of rights. We also submit, as you know, that it was contingent on the international relationship between the UK and the other EU member states remaining the same. For that reason, the process of withdrawal, the giving, commencing of that process by giving notice, is not inconsistent, we submit, with legislative intent.

    You have got our point about the basic structure of the Act and its dualist features, focusing purely on transposition, not on controlling those international powers.

    That is the view of the ECA in isolation, in answer to that point, and as you know, our case is you don't view it in isolation properly; you take into account also the scheme of legislation in its entirety, so the subsequent pieces of legislation. We know, I took you to them yesterday, that the later legislation absolutely plainly does address and consider what powers to take back into parliamentary control of whatever kind, and what powers to leave in the hands of the Government.

    It specifically considered, as we saw, in the 2008 and 2011 acts, Article 50, which is the very process of withdrawal, and we saw yesterday that it made provision for Article 50(3) as one of the rights, and all of that.

    That is the second of the answers. The first is viewing 1972 on its own; the second is look at the later legislation; and third is, if the concern constitutionally is scale or a different kind of thing, a different kind of change, then the constitutional answer for that is the 2015 Act and the referendum.

    That rather leads into the point that was also made yesterday about joint effort, have we got mirror-images, joint effort and matters of that kind. Again, three short points if I may on that.

    Firstly, on any view, there has been a joint effort, and there will continue to be a joint effort at this end of the scale. In other words at the withdrawal point, 2015 Act again, the referendum and the continued involvement of Parliament in the necessary process of implementing the withdrawal.

    Secondly and strictly, what will happen on exit will reflect closely what happened on entry. The decision to enter involved an international act, the signing of the accession treaty, domestic legislation to come into force on entry, the ECA, and the final international act, ratification.

  • Yes, but the difference in this case and why the 2015 Act is very important for your case is because an irrevocable step is going to be taken in the form of the Article 50 notice -- because of the Article 50 notice that cannot be gone back on, which is what we are assuming, and that is the difference, that is why the 2015 Act is very important for this argument.

  • Exactly so. Exactly so.

    But it reflects at least a symmetry, and to some extent it chimes with the point that my Lord, Lord Reed was making, there are various ways the constitution can react; and we know as Lord Mance pointed out yesterday that on entry, or before we signed up to the treaty of accession, I think it was, there were parliamentary motions.

    I am going to take you to the Canadian case that Lord Carnwath mentioned yesterday in due course, but we see that that is exactly reflected in that case when we come to it; but there were parliamentary motions, as it were, before the international act was taken. But those parliamentary motions are non-binding legally, as it were. They have no legal effect. They are simply parliamentary authorities to do the thing, but they don't sound in law, they are not primary legislation, they are not secondary legislation; they are simply Parliament's choice as to how to give its permission and the extent to which it wants to get involved.

    So if you do the contrast in terms of symmetry between then and now, it might be thought that now is a fortiori, and now is a fortiori in terms of withdrawal, because the giving of Article 50 notice was preceded by primary legislation, namely the 2015 Act.

    So we do respectfully submit that there is real symmetry -- there is real symmetry there.

  • Doesn't that beg the question as to whether the 2015 Act expected parliamentary consideration of the position in the light of the result of the referendum?

  • On any view the 2015 Act involved -- my case, as you know, is that the 2015 Act in effect involved Parliament deciding to put to the final decision of the people the in/out question, and we do respectfully submit, therefore, that -- whether it said things or didn't say things, or whether it was silent or not, it still carries real constitutional significance, as having been passed at a point in time when they knew full well that the only way of achieving one of the things or one of the possibilities on the binary question was to give Article 50 notice. That was the only way in which withdrawal could be effected. You had to take a step on the international plane, how would that work, what would need to be done? You would have to give Article 50 notice. That is the mandated process.

  • Of course the referendum doesn't say anything about when the notice should be.

  • It doesn't, and it might be thought not to do so deliberately, because it might be thought that that is one of the paradigmatic decisions which would involve the exercise of expert and experienced judgment from those who would thereafter have the carriage of the negotiations. That is the very political debate that has been raging for the last few weeks or months.

  • Is it realistic to regard an Article 50 notice as an entirely limited notification, the UK is going to withdraw, because the scheme of Article 50 obviously contemplates that that will lead to, at the very least, a framework agreement as to the future. Is it realistic to suppose that the notice will simply be a notice which gives no clue as to what the nature of the direction intended is, what the nature of the agreement wished for is?

  • Well, it certainly won't delve into what the possible agreement might look like; it won't delve into how the Government might or might not choose to negotiate. I think all parties here are proceeding on the basis that it will be --

  • It will simply implicate the terms of Article 50, won't it?

  • A one line. It will just comply with Article 50.

  • Everything else occurs subsequently.

  • Yes, and to some extent that flows into the point that is made on the other side, which is to accept that if the Supreme Court decides against our arguments here, then the solution in legal terms is the one-line act. It may be that would lead to all sorts of parliamentary complications and possible additions and amendments and so on, but that is the solution and that is of obvious significance, all of those points are of obvious significance both in relation to the timing of the giving of that notice and in relation to the in fact that negotiations will have to happen.

    How are those matters going to occur? Back to Lord Reed's point about the delicacy of the balance and which part of the Government has which functions under our constitution; no one is suggesting that the negotiations will or could happen in any other way than by the Government negotiating on the UK's behalf to achieve the best deal it can.

    If the outcome of that is an agreement, it is very likely that that agreement will be subject to the CRAG process; again, that takes one back to the balance, between what Parliament has chosen to control and what it has not.

    So that was the second point with a bit of diversion on joint effort, and how that symmetry might or might not properly be viewed. But to some extent there is a broader point, which is the third of the points on joint effort, which is to the extent that there is a symmetry(?), we don't accept there is but to the extent there is a symmetry(?), that might be thought to some extent inevitable or at least acceptable, because it takes two elements to recognise international law rights in the way set up by the 1972 Act.

    You need the general conduit, the general permission and you need the creation of those rights on the international plane. I am not sure you can have a stool with two legs, but if you could, take away one of them and the stool falls, is the third short point in relation to that.

  • I don't know quite whether you would put it this way, you might not. It occurs to me that a lawyer's way of looking at the 2015 Act might be to ask, does it mean that the result of a referendum gives some -- has some legal consequences for Government. For example it requires them to act on the result of a referendum or, alternatively, does it have a parallel impact on the legal position of Parliament?

    Another way of looking at it might be to say that holding a referendum is a political event, that the significance of the outcome depending on things like the size of the turnout, the size and majority one way or another, is inevitably a matter of political judgment, which courts are not equipped to do, and that therefore the outcome of the -- when Parliament passes the 2015 Act, it is setting in train a political process, the outcome of which has to be assessed by the political actors in our constitution?

  • That is certainly a -- both of those are certainly potential ways of looking at the 2015 Act. Can I answer the question, not so much directly but to accept that those are both possible and one can approach the 2015 Act in a variety of different ways, and we have been thinking for obvious reasons, particularly in the light of the questions yesterday, we have been thinking about the true nature and significance for the 2015 Act.

    Another, a third way if you will, is to look at it, it might be thought, in this way: you know, just before I get to this point, that our primary case is and remains that the legal significance of the 2015 Act is entirely consistent with the scheme of the legislation as a whole.

    So it recognises that the prerogative exists alongside and indeed is the premise for all of the scheme of legislation which governs. So the significance of the 2015 Act is that it is silent, consistently silent, and leaves the prerogative in place; and does so in circumstances where it is perfectly clear how that prerogative would have to be exercised, and that it would have to be exercised using Article 50. That was the only mechanism for doing so; that is our prime case, you know.

    You also know that our prime case involves placing reliance upon it inter alia to meet points about scale, and the size of the change and so on, in constitutional terms, in the rather broader terms in which I opened it yesterday. You know that we accepted and positively relied upon, as an accurate description, the description given by Lord Dyson in the Shindler case, of it being part of the constitutional requirements or arrangements. We respectfully submit that was right.

    But the alternative way of looking at it is to say this: let's suppose for the sake of argument, and it is an alternative submission obviously, but suppose for the sake of argument that you were against us on the 1972 Act, because you thought, well, you have to look at the 1972 Act in isolation; in isolation if we looked at it the day after it came in, we would say, per Lord Wilson if I am allowed to take the question that was put without ascribing a view at this stage; if you looked at it on that day and in that way, you would say it is too big a thing to leave, to withdraw for the Government to do, Parliament having introduced all these rights, just too big a step, you can't do it. So the implication is you cannot do it under 1972.

    What that effectively means for the prerogative, because the prerogative plainly continued to exist before and after the 1972 Act; I will come back to Lord Sumption's question yesterday about whether it was a prior question in a moment; but it continued to exist before and after. So what that would involve is a conclusion by the court, as it were, as a legal construct, that the necessary implication of the Act, because of all those big things, is to hold or to put a constraint upon the exercise of the prerogative in a particular way. We know full well that the prerogative would have to continue to be exercised in the foreign affairs sphere in other particular ways, because that is integral to section 2.

  • But the concern would be: you cannot withdraw, it is too big a step; so there is, as it were, a clamp put on.

    The other way of viewing the 2015 Act is to say: given that that is a legal construct, given that that is a court imposing, as it were, through a process of implication on Parliament an intention, that must be inherently subject to change if the legislation changes.

    Take, by way of example, suppose a year after CRAG with all its nuanced schemes of control about ratification, CRAG had been repealed. What would be the effect? The effect would be that the prerogative powers on ratification could continue to be exercised, but now no longer subject to the constraints that Parliament had seen fit to impose in CRAG. You can approach, we respectfully submit as our alternative submission, the 2015 Act in a similar way. You can say: well, there is the 2015 Act, even if by necessary implication if you viewed it in isolation, I am leaving entirely out of account the latest legislation, but even if that is the prima facie conclusion on 1972, that must be inherently susceptible to change. The 2015 Act comes in and its legal effect is to leave or to remove, if you will, by the same process, by exactly the same process of implication, that which you impose by necessary implication now comes off by virtue of the same process.

  • Another possible interpretation of that line of argument is that when you get to that point, when you get to the 2015 Act, you may say to yourself, picking up Lord Reed's point about the balance between various parts of the Government, it is not for the court to say what the effect of the 2015 Act is, where Parliament has been very carefully silent, but to say that is a matter for Parliament. And therefore if you are right about the -- not if you are right, if it is the case that the 1972 Act has got what you call a clamp, the question whether the 2015 Act, which is studiously silent on what its effect is to be, when there is a referendum, should be left to Parliament and not to us, and therefore it brings you back to saying it should go to Parliament.

  • Yes, and what this debate demonstrates is that there are, perhaps because of its silence, subtle ways in which one can give, as it were, the legal punch line.

  • Of course, it didn't have to be silent, did it? I mean Parliament could have.

  • It could have said it was advisory or it could have done what it did in the alternative vote legislation and in the legislation relating to future changes to the European constitution, it could have -- can I finish -- it could therefore have said what it did. Lord Clarke's point, which I think is a fair one, is that if Parliament means it to have a legal effect, as in those two statutes, it says so, whereas it doesn't say so in the 2015 --

  • My answer to Lord Clarke's point, I am grateful to my Lord, can I accept that the Lord Reed political and our remove the clamp are pretty much different ends to the same thing, although they do involve, in my remove the clamp thing, the interposition of the court in what might be thought to be in a constitutionally difficult or inappropriate manner, so that is the distinction between those two legal punch lines.

    To come to my Lord, Lord Clarke's point, true it is, and I will let my learned friends develop this if they want to, that in relation to the AV, alternative voting referendum, there was the legal consequence set out, but that was because there needed to be. It needed to be set out in that way, because they had to, as it were, prescribe what would happen as the next step, and the law needed to be changed, and so they set it up in that way. Whereas here, we submit, nothing more is needed to give effect, by way of express statutory language or express statutory provision, to give effect to the outcome of the referendum, if the answer was to withdraw.

  • Is that a conclusion which you arrive at as a matter of construction of the 2015 Act, or are you suggesting a principle along the lines that my Lord, Lord Neuberger has just suggested, namely that the Act is effectively an unusual form of legislation, if I interpose an adjective, which it is not open to the courts to construe.

  • Am I allowed to say either or both?

  • I would just like to know what your authority is for the proposition that certain pieces of legislation are not susceptible to construction in this court or indeed in any court.

  • My Lord, you can approach the thing as a matter of interpretation, but you are not in truth interpreting a provision of legislation; you are trying to discover its true constitutional nature and effect, is I think the way I would answer.

  • That is a matter of interpretation, albeit in a constitutional context. Is there any legislation which Parliament passes which is not susceptible to interpretation in a court? It would be a rather unusual piece of legislation, wouldn't it?

  • Well, you are, of course, able to interpret the provisions of the legislation. This is simply a self-restraining or a self-denying consequence of a characterisation of the act of the kind indicated.

  • But we would only arrive at that self-denying approach if we concluded that that was Parliament's intention. That is a matter of interpretation which is the court's function, isn't it?

  • I am not seeking to say this is non-justiciable, I am not running a non-justiciability argument, but there is, we respectfully submit -- the political route, the political outcome as it were, we respectfully submit, is not shut down by a principle that says the courts must be able to interpret legislation, true it is. We accept that.

  • Your point is more that when you are interpreting legislation, you have to look at the nature of the legislation and take into account when -- which has to be taken into account when deciding what its effect is, not merely what it says, but what its effect is.

  • It sits against -- all legislation sits within the framework of our constitution, and the framework of our constitution brings with it doctrines of separation of powers and proper functions of courts and proper functions of legislature and proper functions of Government.

  • You are going back to the basic consequence issue you were seeking to draw; it was that the 2015 Act removes any limitation on the prerogative, if there was any which was imposed by the 1972 Act. I would have thought, that although that is an important constitutional point, it is nonetheless a point which it is for courts to consider and adjudicate upon.

  • Certainly at that stage it would be. But at that stage -- that is why I said either or both, because the political answer says ultimately, as its punch line: this is for Parliament to decide and not for courts to trespass on as part of our constitutional arrangements; this one ascribes a legal effect and is therefore of course for the courts to determine.

    That is the third submission, which has gone on for a very long time and contains lots of little submissions within it. Apologies for the numbering.

    The fourth submission is a shorter one, you will be delighted to hear, which is that the reasoning and conclusion of the divisional court about the statutory scheme has the most serious implications for the usual and long-established exercise by Government of the foreign affairs prerogatives. We have dealt with that in our case particularly at paragraph 61, but you will understand immediately why I say that, because if there is some principle that says whenever you exercise the foreign affairs prerogative, if the consequence is or perhaps may be to have an impact on or even to alter domestic legal rights, you cannot do it, then that is a consequence which is extremely troubling for obvious reasons.

    It would be to introduce a much more stringent scheme of control, for example, by reference to a new and newly discovered principle than the scheme that Parliament has seen fit to enact, even in CRAG, with its controls on ratification and the things that need to be done in relation to that. Because the consequence of the divisional court's reasoning on the back of this, if it has an impact on domestic law point, is that you need primary legislation.

  • That treats the European Communities Act as typical of other types of statute, doesn't it? Your example of the territorial waters and the radio licensing is simply an example of a piece of legislation which created an ambulatory -- had an ambulatory scope by definition. The double taxation treaties also appear to be on one view in precisely the same category; they are simply treaties which by definition only implement international agreements to the extent that such international agreements are there, so that they are variable.

    The argument against you on the European Communities Act is that it is a very special measure, which not merely is silent on the question of withdrawal but by its silence actually excludes withdrawal. It assumes, it proceeds on the basis that a new legal order is now part of the United Kingdom legal order.

  • My Lord, it does, and we have addressed that head on and in terms in all the submissions that I have been making, but the reason for the -- well, the significance that we attach, and I will come to this directly, that we attach to the double taxation treaties -- the Post Office v Estuary Radio is slightly different, but double taxation treaties and the EFTA note -- is to indicate that this model, this way of doing things with its potential effect upon rights immediate and direct, as a result of international action, is not some constitutional anathema, but is actually a perfectly acceptable and accepted part of our constitutional arrangements.

    Can I come directly to the fifth of my topics, then, with that lead-in, which is: is there a background constitutional principle of the kind that the divisional court identified? Of course that lies at the heart of the case against me; it lay at the heart of the divisional court's reasoning because as we saw, as you have seen, they do not in truth, despite that description, treat this as a background principle.

    It was in effect dispositive of the case on their reading of it, and it was dispositive because it had the effect of reversing De Keyser, of turning legislative silence against me, if you will. The question was: no longer has Parliament expressed or by necessary implication taken away a pre-existing prerogative. The question was now: has it expressly allowed you to create a state of affairs on the international plane that has an impact on current domestic legal rights.

    Can I turn directly in that sphere, and it is the first of the points I wanted to make, back to the question Lord Sumption asked me yesterday which is: is there is a prior question to be asked, do we need therefore to get into any of the legislative scheme, any of that; because the prior question is can you ever have a prerogative; did the prerogative ever exist in a way that allowed you to impact on domestic legal rights. If the answer to that question is no, then all of the statutory scheme and all of that analysis rather falls away.

  • Not just domestic legal rights but domestic law.

  • Domestic law, again, my Lord, I am grateful, but it is the same effective point that I am going to try and address if I may.

    That is the thrust of the question that was put, and our first submission is that of course one has to consider the nature of the prerogative with which you are dealing. But the prerogative with which we are dealing is and always has been recognised as a general power with specific elements. The general power is the power in the Government to conduct foreign affairs. The specific elements are all the things that are necessary to do that.

    So the Government can enter into, it can ratify, it can withdraw from treaties, it can take whatever steps it wants to take on the international plane to vote in international institutions, to participate in the process of making international law, or law on the international plane, eg in the EU. All of those are specific aspects of the general prerogative, frequently recognised from Blackstone onwards, as being a prerogative power available to the Government.

  • It has, as we know, been subject to specific limitations, I have taken you to them, in CRAG and in the EU legislation, but it is in nature a general power. That is the first point, part of the answer.

    The second part is that when specific limitations of that kind are imposed, they are imposed in the legislative scheme that you have seen, both general and specific, on a particular step on the international plane. For example, ratification, in CRAG, which is all it seeks to do. They are not imposed on some ratifications but not others, depending upon the consequent impact on domestic law. That simply is not how it works.

    Thirdly, the Lord Oliver quote from the Tin Council case, the JH Rayner case, is not authority, we submit, against there being a general power. His point was, and was only, that the making of a treaty is not capable without parliamentary intervention, as he put it, of changing domestic law to incorporate that treaty. It is not and was not that the treaty-making prerogative is limited to circumstances where it can be exercised without affecting domestic law; that was not the way he cast the principle at all. All of that, we respectfully submit, leads to the question truly being whether the general power has been limited or excluded or controlled by Parliament.

    That must be, we respectfully submit, the right question to ask and that is the right question, the right question in principle, I mean, because that is the way the world works: broad principle of prerogative, foreign affairs, specific elements, Parliament taking, as it were, bites out of it. That is the right answer therefore in principle. You look to the legislation to see whether control has been imposed. But we also know that is the right question, at least, to ask, because of the De Keyser line of authorities.

    In each, the question for the court could have been framed, and the answer that the court gave could have been framed as being: well, the prerogative could never have existed to deprive the individual of his rights, and we know that in De Keyser itself; one can take other examples, Laker, FBU, particularly Laker, FBU is the criminal compensation scheme so it may be rather different in this respect but Laker, De Keyser, Burmah Oil, they all involved interferences with domestic legal rights.

    The answer given by their Lordships was not the one-line answer that says: frightfully sorry, you cannot have this, because the prerogative power to affect legal rights in this way never existed. What did they do? They look to see whether the interposition of the statutory scheme -- they look first of all in Burmah Oil, the common law exercise, to see whether the nature of the prerogative was not you cannot take away -- you could, that was the premise on which they proceeded. That was the nature of the prerogative.

    The question for them was whether in truly defining that prerogative as a matter of common law, that right to take away had to be accompanied by a concomitant right to compensate. That was the nature of the common law analysis, and you get to De Keyser, and the question is not has the right ever existed to affect domestic law; of course the right existed to take it away.

    The question was in De Keyser, on the assumptions on which their Lordships were operating: has statute intervened to require the right of compensation; answer, yes, it has, because the 1842 Act and the 1914 Act did so. But they were analysing that in precisely the way that I have indicated.

    They were not saying: you start with the prior question and if it affects rights, you stop. They were acknowledging that the exercise of the prerogative could indeed affect rights; and the question then was the secondary one, if you will, that -- the important one, which is whether or not Parliament had imposed constraints upon the exercise of that general power.

    Here, as we know, I am not going to keep repeating the points, Parliament has set up rights, in our context of its particular kind, with its two necessary ingredients, the two-legged stool, one goes, it all falls down. The legislative premise on which that legislation operates is that the prerogative continues, and Parliament well appreciates the continuation of the suite of powers that exists within the generally expressed power to exercise foreign affairs and conduct foreign affairs. That is precisely why it legislated to control the individual ingredients as it did.

    It didn't interpose control, and nor should the court interpose, as it were, some overarching form of control on this by saying: if ever any of these ingredients act so as to have an impact on domestic legal rights, that is the end of it. They were well aware that because of the structure that they created, and there had been parliamentary intervention, the way in which that structure worked was that if we exercised certain powers, it would have direct impacts.

    That is my best attempt, as it were, at an answer to my Lord, Lord Sumption's question of yesterday. That is the third point.

    Second point is it is clear that the exercise of prerogative in a variety of spheres can have effect on domestic law in a variety of different ways. Again, I am not going to take you to them, given the time, but I have made already the points about De Keyser and Burmah Oil. There, the taking of property was lawful, through the exercise of prerogative power directly interfering with those rights to property. The only question was, could that impact on domestic rights which occurred through the prerogative, no statutory basis; was that then subject to statutory conditions?

    So those are examples. Post Office v Estuary Radio, I have mentioned it on lots of different occasions, I described it yesterday, can I just give you the reference to that. That involved altering the extent of territorial waters, and the result of that was to alter directly rights and obligations under domestic law, and indeed to create a broader category of criminal offence, if you will, because the criminal offence applied more broadly to a broader set of waters.

  • None of these cases are cases where the exercise of the prerogative actually alters the contents of domestic law. The De Keyser and Burmah Oil cases are cases where the law had always been that you can take property for certain purposes; so there was no change of that, it was simply an exercise of an existing legal right. The Post Office v Estuary Radio case was a different kind of case in which the prerogative had simply been exercised so as to create a fact, and the fact was that the territorial waters now extended to a place where the broadcasts were being transmitted from, therefore needed a licence.

    So neither of them is actually a case, a kind of case, which raises the problem that we have, where the effect of withdrawal from the treaties will be actually to alter the current constitutional rules of the United Kingdom as to what the sources of our law are by removing one of those sources.

  • My Lord, I accept that they are at least arguably different in kind to the kind of thing that is contemplated by the ECA and our particular legislation that we are considering, and that needs to be viewed on its own terms, so I am going to come to that as my third point.

    The point I am making here is a slightly lesser one which I fully accept broadens out the point, so it becomes a question of whether or not the law can be altered or affected directly by actions of the prerogative; and true it may be that sometimes that effect is created by altering a legal fact, and sometimes that legal effect is created, because the right in question under domestic law is inherently limited anyway or is contingent upon the exercise of the prerogative, eg the right to property being contingent upon the ability of Government to take and blow up your oil wells if the Japanese are advancing.

    So I fully accept that they are different and we have another example, just to mention, which is the Vienna Convention on Diplomatic Relations. I know my Lord's point would be similar if not the same, and you know the structure of that, and we set it out in our case at paragraph 40(b), but the structure of that was to create, as it were, on the international plane an ability or a power within Government, because it could only be Government that exercised it, a power conferred by the convention itself on diplomatic relations in that case to say who was allowed to be or who was to be treated as being the head of mission, and who, if anyone, should be deemed to be persona non grata thereafter.

    Those were rights, as it were, on the international plane that Government had. They were not brought into domestic law. The structure of domestic law was rather to create a series of rights and immunities for those who benefited from the characterisation that those international steps would give them.

  • So it was a joint effort.

  • It was and we are back to that and I am not going to repeat the submissions in relation to that.

    But it is another example, it is a joint effort, but it is also another example of a step on the international plane taken in the exercise of the prerogative, removing a right that as of yesterday and before the Government said that you were persona non grata, you enjoyed as a matter of English law.

    Now, of course that is not a direct analogy because it involves all sorts of specialisms, no doubt, to do with diplomatic relations --

  • Yesterday you referred to Lord Millett's article, and some of us have read it overnight. He in particular reminds us of the case of Joyce, Lord Haw-Haw, who was found guilty of treason, and Lord Millett says that is only because in the exercise of the prerogative in 1939 this country waged war on Germany.

  • In fact he was prosecuted under the Treason Act 1352, so, Mr Eadie, was it not his guilt, his conviction, a joint effort?

  • My Lord, it was a joint effort in that sense, and I think my Lord, Lord Sumption would say in answer to Lord Millett, were he here, and was giving the Lord Haw-Haw example: that is just simply creating, as it were, a state of affairs.

  • It is not a legal fact.

  • An international fact because you have declared war. I accept that there are limitations on lots of these analogies, and we need perhaps to come directly to our legislation, but what they do illustrate is that you need care, care, care before jumping too readily on a big, broad (Inaudible) however superficially attractive it may seem, that says: you cannot alter the law, you cannot affect the law.

    Those statements are all made in their own particular context, and if anything, what this particular debate illustrates is that the context needs to be taken into account in all of these arguments.

  • The position is, and I don't suppose that anyone in court doubts this, you can legislate on the basis that domestic rights will depend upon what the international situation is from time to time. Whether we are at war or whether the territorial waters extend three miles, 12 miles or whatever, that can all be altered if you legislate on that basis.

    I think the ultimate question here is whether the legislation was enacted on that basis. I was looking overnight at the motions again. If we are looking at the broad constitutional position, one must bear in mind that the actual decision to join the EU was initially one which the Government took, but it put it before Parliament on a motion where the issue which was, I have just opened them, again, we have the debates here -- the issue was whether or not Parliament approved of joining the EU, or the EC as it was, or the EEC, so that -- and the speeches demonstrate that there were pros and cons, and the consequences of doing so were fully thought through. So in a sense one looks at the ECA, perhaps the 1972 Act against that background as well.

  • My Lord, I am entirely content for you to look at it as against that background, recognising, as I am sure my Lord does, that those motions, as it were, were political acts if you will. They were -- they did not constitute legislative permission, they were not akin to the Bahamas, Barbados, all of that legislation we read yesterday, and if you want to look for the analogue, a joint effort, the mirror, how have we done it, the analogue is 2015.

    I know my Lord puts to me, well, is that question begging; we respectfully submit, it is in one sense but it truly isn't in another. It is just as interesting, just as important, constitutionally, it might be thought more so, and it may be that is what gives particular significance to the basis on which Parliament acted; if you are going to look, as it were, as part of the context of the ECA to the non-binding legislative motions, how can it possibly be said that you should not look in addressing the issues that you have today, both at the 2015 Act, and indeed the very statements that were made, the debates, as you rightly put it, in relation to the motion's pros and cons, why should you not look at those and the statements to Parliament.

  • I suppose the difference might be that the -- sorry, that the 1971 motions were, or are, background to the 1972 Act, whereas the Referendum Act, as has been pointed out, rather leaves us in the air on one view as to what its significance is, whether in law it should go back to Parliament or whether it is simply left to the executive.

  • To some extent it does, because it is silent -- it doesn't do the alternative voting thing, but there are perfectly good and sensible reasons for that, and if one is comparing, as it were, constitutional force, that point, it might be thought, is more than counterbalanced by the fact that this was after real controversy and a general election and a variety of different statements about its nature and effect, an act of primary legislative authority by Parliament.

  • I suppose you can say, if we were to be considering the case on the basis that the 1972 Act did contain a clamp, as you have put it, and then ask ourselves what is the effect of the 2015 Act, if we are faced with a choice between saying either that it, as it were, takes away the clamp as you suggest, or, as the alternative is, goes back to Parliament to decide what the effect of the 2015 Act is, then really we are saying the effect of the referendum is nothing, because it leaves us in precisely the same position that if it had not taken place, as far as we are concerned, because it is going back to Parliament.

  • It is going back to Parliament. Those are the alternative analyses.

  • So it would have the political effect -- the referendum, even on that basis, would have the political effect which we have discussed.

  • That is a very, very significant factor in political terms; the question is what legal effects.

  • Quite, and that is the nature of the debate before you, but my learned friend's case, let's make no mistake about it, involves putting the self-same question back to Parliament. It accepts that a one-line Act would do it. The self-same question goes back: is that truly to be taken as a sensible intention of Parliament? It would be simply to advise them so they could consider the same question, but they could have done that anyway.

  • Go back on a completely different basis politically, which was no doubt the intention.

  • Then we just get into the debate about politics and law again.

  • We are not being asked simply to send it back to Parliament. I mean, Parliament approving a motion wouldn't do. What we are being asked to do is to compel the Government to introduce a bill in Parliament, which Parliament hasn't itself asked for.

  • That is true. That was part of our concern about remedy, and it is a concern that has been considered in a number of cases, Wheeler and those other cases that considered that sort of issue. But it would require on my learned friend's case not just parliamentary involvement, as my Lord, Lord Reed rightly points out, primary legislation; the reason it requires primary legislation is because you are being asked to declare positively unlawful the exercise of the prerogative power to give Article 50 notice as the first step in that process.

    The more general effects for good or ill, relevant or more or less relevant, were my second point. The third point is the -- is our particular context and our particular context does involve the prerogatives exercise. We are still on the question of whether there is some principle that you cannot have an impact into domestic law or you cannot alter the law of the land by prerogative power.

    We know that it is absolutely integral to the scheme of the Act that the Government will be using its prerogative precisely to do that. It will be participating on the international plane in the process of EU law-making. The rights to which section 2 gives effect, from time to time, are those that are created, its word, on the international plane by the Government exercising that power. They are not rights that are created by Parliament, as it were, legislating for those rights. So it is integral to the scheme of legislation, of this legislation, that the Government can, through those processes, operate to change the law.

  • Can you set out the mechanics, Mr Eadie, for us if you are right. The various rights and laws, let's call them laws, which come into English law via the 1972 Act, what will be effect of those, whatever they may be, competition, safety standards, compensation for air delay, goodness knows what else, all the things that are directly applicable; what is the effect of those if you are right on those if you are right, when the notice in due course expires? Do they simply lapse?

  • That is the directly applicable ones.

  • Yes, that is the point being put to me --

  • The directly applicable ones. There is a separate question, obviously, about those that have been transposed by the Privy Council under section 2 -- what happens to those?

  • The directly effective ones, they lapse.

  • Whereupon you say, as I understand it, it is obvious that a good deal of legislative activity of one kind or another is going to be necessary.

  • We say -- I will come back to it, but the same answer applies because it is dependent on the fundamental continuance of the relationship between the United Kingdom and the other members of the EU and our membership of that organisation. The same essential answer applies in relation to those rights that are conferred, as it were, separately under domestic law. The right to vote in European parliamentary elections is the paradigm example, which would lapse for the same reason. The legislation would technically remain upon the books, but we would no longer be members of the club, as it were, and therefore not in a position to elect the members of the committee.

  • Would they lapse, you say, because they do not in truth derive their force from the 1972 Act, but from the international order which is given legal effect by it?

  • From the twin effects of both of those together --

  • The joint effort. Thank you.

  • Do they lapse in relation to things that have already happened? Suppose, for instance, you take EU competition law and ignore the fact that since 2002 we have replicated it in English statutes. There are various torts which arose directly from EU competition law. In respect of the period before the lapse, would they continue to be treated as torts?

  • I think they would, because that would be a process of the common law having taken them in. There are complexities, make no mistake but --

  • The question is really very difficult, isn't it.

  • Yes, there are complexities around precisely how it is all going to work. You have the lapsing point from the direct effect; you have a situation from when you leave the club, the right which is created elsewhere, the vote in parliamentary elections becomes pointless. You have another swathe of legislation where the mechanism for transposition is for the United Kingdom Government on the international plane, anticipating in those processes to agree, for example, directives, but those directives then impose on the international plane on the UK Government an obligation of result, namely to pass domestic law, sometimes using section 2(2) of the ECA itself, to replicate or to create the result.

    That would be therefore domestic legislation, secondary legislation, achieving the result that the directive sets. That legislation would, if everything else was left, stay in place, and there may be also difficult questions that my Lord, Lord Sumption raised, what happens if, inspired, as it were, by European law, the common law has moved to a particular place.

    But I think my answer, until someone shouts at me, would be that the common law can develop by reference to whatever principles and inspiration it wishes. Once it has acknowledged something, it will be for it to continue to recognise it or to take it away because the inspiration had gone and that fundamentally undermines it in the view of the court. That would be a matter for you. It is no doubt those complexities that led to the --

  • Years of future excitement.

  • It leads to the eternal optimism that might be thought to underpin the statement on the Great Repeal Bill, and the pause that then occurs when working out how that is going to be delivered, because there may be real complexities involved in that exercise, which I am sure will involve years of entertainment to come.

  • In a sense you have moved on to it, because there are vast swathes of domestic law which have been enacted in domestic law as a result of EU obligations, vast swathes of it. Much of that will not simply be deprived of effect. Unlike the EU elections of course, that will be deprived of effect, because we are no longer members of the club, so we are not entitled to vote. But that is not true of a great deal of the health and safety, the employment legislation, the Equality Act, much of that which is basically inspired by EU law, although usually goes further than required by EU law.

    Now, that law will remain in place, presumably, but it will be affected by, for example, the fact that those who are beneficiaries of those laws will not be able to ask this court or indeed any other court to refer a question to the Luxembourg court in order to ensure that our law continues to keep pace with EU law, so it will be modified, won't it.

  • My Lady, I accept that, you are right and my answer to the CJEU point is the same answer that I give in relation to the election to the European Parliament point. It is the same point, but the constitutional significance of the first part of my Lady's question is to be thought perhaps about, which is that it is undoubtedly true, and my Lady said swathes and swathes, and we respectfully agree. Most of European law nowadays is made through directives and regulations directly transposing that. They will remain.

    The question therefore will be, back to joint effort perhaps but this time in relation to implementation: how is the Government going to shape the new domestic law? The answer to that question, almost inevitably it might be thought, is policy area by policy area. It might well be thought to be a potentially deeply surprising proposition that in some way, shape or form, although we are focusing very hard for obvious reasons on the directly effective law, that come the brave new world, that is truly going to be a point of any significance.

    They will look at, I don't know, farming and they will say: here we have, in relation to farming, regulations that directly affected section 2(1), we have a swathe of directives and a bunch of other framework agreements that sit on top of it. They are not going to suddenly say: we leave in place the regulations because they happen to be in place. The directive lapsed and so all that goes out of the window. They are going to say: what are we going to do now about farming?

    What that tends to indicate in broader constitutional terms is the breadth and extent in the real world of inevitable future parliamentary involvement in the process.

  • I wonder if I can take you back to the point that you were making a moment ago where you said it was integral to the 1972 Act that the Government would use prerogative powers to alter the law. That is correct in the sense that the Government's involvement in the law-making institutions of the EU will give rise to the new source of law that Parliament has recognised.

  • But Parliament, by recognising a new source of law, has authorised the use of the prerogative in this area as one member state among others, and it is rather like the double taxation treaties there. In the 2010 Act, Parliament authorised the alteration of the law by orders in council.

  • My Lord, it does.

  • Which is very different, I think, from the alteration of the law by the withdrawal from the treaties altogether.

  • My respectful submission is it is not a complete answer, and I don't advance it as such, but it is a thoroughly good indication. If the proposition is that it is absolutely constitutionally anathema for the Government to act on the international plane, forget about the institutions, which is a separate point and us participating in them, but if that is the proposition, we don't agree because it is integral that that is what they do. That is the structure of the Act.

    As I say, that is not a complete answer because I have to go the stage further, which I imagine is one my Lord, Lord Wilson was interested in, scale and withdrawal, is that a different beast to the beast that is our continued exercise of that sort of power. It is the same point that I think my Lord, Lord Hodge is putting. We respectfully submit it is different, of course, and we recognise that, but it is important in trying to work out to what extent Parliament intended in 1972 to shut its face against us withdrawing.

    It is relevant as a step along that road to acknowledge that Parliament had already accepted that as part of our continuing membership, we could on the international plane take steps which would have the direct effect of removing rights.

  • But only through the operation of the EU institutions.

  • Certainly but still, nevertheless, the only way we can act through those institutions is by exercising the prerogative powers; that is really the point. I think my Lord, Lord Mance put to me yesterday, it is through the institutions, we are not acting alone and that is true; but you cannot, as it were, take the first step in withdrawal, by definition that is a matter for you to act alone in. So I am not sure there is that much in the EU institutions point, although of course it is accurate to say that.

    To some extent it can also be said if Parliament has authorised the making of EU legislation, then it has also authorised, as we know, by the same logic, Article 50, because it specifically considered that and introduced that and dealt with that. My Lords, I had better move on if I am going to finish within the time, if I may.

    Fourth proposition, the cases on which the divisional court relied do not, we respectfully submit, establish anything like the breadth of principle which they base their judgment upon. In particular, if I can just mention three, JH Rayner, the Tin Council case, again, I am not going to go back to it in the time, I am sure you have all read it; core authorities 3, tab 43, page 1778 to 1779 is really that little segment of Lord Oliver, and you need to read it all, that segment. It is about a page, a page and a half, and you don't just take the sentence that says: you cannot use the prerogative to alter the law of the land.

    The basic point that was being made by Lord Oliver was to recognise the existence of prerogative powers to make and unmake treaties on the international plane; that is really what we are talking about; but then to deal with a separate and distinct aspect of transposition. Treaties are not self-executing, absolutely self-evident, and we accept that proposition.

    So it doesn't provide, as it were, a freestanding constitutional principle. Bear in mind, the reason I am going through all this is because what they did is treat the constitutional principle as in effect reversing De Keyser. The question is whether any statements by Lord Oliver can properly be taken as having that effect, and we respectfully submit not.

    The Case of Proclamations and Zamora likewise; it is uncontroversial that the prerogative cannot be used simply to countermand laws passed by Parliament, but that is in truth pure De Keyser and Rees-Mogg, or, indeed, as a general proposition, common law rights. But one needs to exercise some caution, as we have already seen, in a variety of different and perhaps more or less subtle ways, and sometimes one can say it is altering a fact, and sometimes one can say it is doing something in a slightly special context, and context is all, of course.

    But as a general proposition one needs to be careful, because it depends whether the executive can truly act to alter the law; it depends upon, as indeed Lord Oliver's statement of principle indicated in terms, parliamentary intervention. The question we have been debating for the last day and a bit is what is the nature of the parliamentary intervention that we have had in our case.

    We also do not accept that there is any principle corresponding to that identified by the divisional court, to the effect that the prerogative to make or withdraw from treaties cannot be exercised so as to have the effect of altering domestic law. There is not any authority for that proposition. None of the cases that they cite are authority for that proposition.

    All of the authorities that are cited against us in support of the proposition that the prerogative may not be exercised in a manner which is inconsistent with domestic law, domestic law rights, concern a situation where the exercise of the prerogative conflicts with some separate or pre-existing law. None of them decide that the Government may not withdraw from a treaty where this will impact upon the domestic law, and we know that there are circumstances in which that can be done.

    The fifth point is that this is not a wholly unprecedented or aberrant situation and we know that because it is, we submit, orthodox, both in the UK and in international law, that it is possible for the prerogative to be exercised to withdraw from treaties, even if this might have a more or less direct impact on to domestic law.

    Perhaps in that context, it may be worth just showing you briefly the case which my Lord, Lord Carnwath was interested in yesterday, which is the Turp case in the Canadian context, volume 26 if you would, tab 308.

  • 8950, I am so sorry.

    Again it has similarities, this case; it is not in any sense directly our situation but it does have some interesting points of similarity. In a nutshell, if I can just summarise the nature of the facts and then show you the relevant paragraphs very briefly, there was a protocol signed by Canada on 29 April 1998 and you see that from paragraph 4 -- this is all about the Kyoto protocol for creating cleaner air and the imposition of --

  • Climate change, yes, emissions and reductions and initially as they noted in paragraph 3, the original convention, the UN Convention on Climate Change, had not set, as it were, hard edged reduction targets. You see that from paragraph 3, and the effect of the Kyoto protocol was to introduce those sorts of targets.

    That protocol is signed on 29 April 1998, paragraph 4. There was a non-binding resolution of the Canadian House of Commons. There is the first parallel in relation to our accession, a non-binding resolution of the Canadian House of Commons calling for ratification on 10 December 2002. See paragraph 5. Paragraph 4, I am so sorry, it is the bottom of paragraph 4, my note was wrong.

    So non-binding resolution of the House of Commons and then there was legislation ie after that, so the sequence is there, protocol is signed, non-binding resolutions, and then there is an Act, as you see from paragraph 6.

  • The key thing there was that the Act, the statute passed by the opposition --

  • To force their hand.

  • To keep the Government to its Kyoto commitments, and in spite of that, it was held that the prerogative is effective to withdraw.

  • Exactly. Quite where that takes one --

  • One may debate whether that was a proposition which would have been supported if it had gone higher, but it is quite a good example of how the prerogative -- the question of abuse of power might have come into it.

  • The prerogative in this case having been exercised would presumably -- I have not gone through all the subsequent facts, but presumably the Act giving effect to Kyoto would have been unaffected by the withdrawal from the treaty on the international plane.

  • It is more subtle than that. Yes, I suppose if the Act ... sorry, I was -- I didn't want you to spend too much of your short time. It is a case which interests me partly because I am interested in the climate change aspects.

  • I will not take too long on it --

  • It seemed to me one of the interesting examples of the prerogative being used in the circumstance where Parliament had actually said exactly the opposite argument, and yet it was held that the prerogative (Inaudible).

  • Yes, and it might be thought --

  • Your case is a fortiori in the sense that you could say ...

  • That struck us as being the similarity, although of course one can pick away at it, as it were, on the basis that there are specialities in the Canadian constitution. There were some issues that were declared to be non-justiciable and so on. There were interesting parallels, both -- that is the central one, there it is, an act of Parliament which requires the protocol to be kept to, effectively, and then they withdraw from the protocol. Then subsequently there is an act.

    But there is also a sequencing interest there, which is the Government acting on the international plane, in effect to commit Canada under the previous administration, then the legislation, then another act on the international plane, which was, as you say, directly contrary to the legislation itself and then a repealing act, ultimately, as one sees from paragraph 12 but my Lords, my Lady, there it is.

    If you want it, it is in tab 26.

    EFTA, we have dealt with, if you have the separate note in relation to that.

  • It might be worth, if I could invite you just to cast a quick eye down EFTA, then I can be pretty short on it, I think.

  • You would like us to read the whole note.

  • Yes, it is only a couple of pages.

  • If you want to sit down while we do that, you are most welcome.

  • I am grateful. (Pause)

  • Thank you very much.

  • You see the parallels, you see the sequence in particular and the sequencing of international acts and legislation and it is an interesting comparison, an interesting analogue, we respectfully submit, precisely because it ends as it were -- it is directly in our context and it ends with the ECA.

  • Did the EFTA scheme involve any sort of directly effective rights such as is the subject of section 2 of the 1972 Act?

  • Not in that way. The domestic implementation, as I understand it, is through the Free Trade Association Act of 1960 and the import duties.

  • Is there a slight curiosity here, in that when we signed up to the EEC, we recognised that there were two types of legislative process, one rather less imperative than the other; that is the process of EU or EC legislation by directives, which, as my Lady pointed out, has led to a large body of law in this country which you accept will remain effective after withdrawal. And yet the directly effective rights under the treaties and non-discrimination and all the regulations which are directly effective, are conditional, you say, on membership. So that one body of legislation under the treaty is not conditional, but another body is conditional; is there an oddity there?

  • True that it is, but, as it were, that is because of the way in which the directive side of things is transposed, but what will go when we go is the obligation to comply with the directives.

  • That will, I suppose, effect a legal alteration, even to the extent that rules have been transposed. The alteration will be that whereas before they were entrenched by the fact that they could not validly be amended or repealed without -- inconsistently with the treaties.

  • That will change, they now can be so they will be less secure rights.

  • That is true, my Lord. We don't quibble with that. That is another consequence. I think the point my Lord, Lord Mance was putting to me is doesn't it all feel a bit adventitious, because you have one body of rights which are already domestically implemented in that way and will stay, as it were. But the key point is that when we go, the obligation to continue to comply, to continue to achieve as a result will also go.

  • Marleasing will no longer --

  • My Lords, I think given the time, what I would prefer to do if I may is leave double taxation as a point that says double taxation, not least because of the incredible complexity of it, and it would take me quite some time to walk you through it, and I would probably be asked all sorts of answers I didn't know the answer to.

    So in part based on cowardice, can I leave double taxation to be taken from our case. We rely upon it as another example of a similar type to EFTA, indicating in effect that the sequencing can work in that way, that this is not some form of strange aberration or --

  • You are not saying it is identical in all respects; it is merely an example?

  • I am not saying it is identical in all respects, it is an example, but it does at least serve to demonstrate that one can have that sort of set-up without throwing one's hands up in constitutional horror.

    In summary, if I may and before coming to my final brief topic which will be parliamentary sovereignty, can I summarise ultimately where we are on the statutory scheme, and we do submit that it is at least of interest to note the stages in the tightrope walking that the other side's case involves.

    Their arguments, we submit, involving -- ignoring legislation altogether, in other words ignoring the legislative scheme altogether, CRAG and EU, on the basis that they say in effect that the prerogative never existed to change the law, and so you don't need to bother with the legislative scheme.

    It involves them saying: well, the next stage in the argument, even if that is wrong, is stop the clock at 1972. It involves saying that in 1972, even if you do stop the clock there, you ignore the basic dualist structure on which that Act was fundamentally premised. It involves saying that you ignore all of the legislation that followed the 1972 Act, and all of the confirmation of the dualist structure which that subsequent legislation entailed, and all of the fact and nature of the controls that that legislation subsequently brought with it.

    It then involves saying you also ignore the constitutional elephant in the room with its dualist premise, which is the 2015 Act.

    Finally, or perhaps consequentially, it involves saying, ignore also De Keyser, and that line of authority and its careful and principled approach to the alteration of the delicate constitutional balance between the powers of the Government and control by Parliament.

    What we respectfully submit is that the divisional court did not properly take a long established constitutional principle and apply its inevitable logic; what they did instead was to take a number of different and generally expressed principles, and invented a new principle. They took those general principles and, if you will, pressed them into service as absolutes, and outside the context in which they were deployed, and in the cases for which those general statements of principle as general statements were sufficient unto the day.

    We do submit that the principle that they identified as a background but in truth dispositive constitutional principle as they put it, is not sound and should not have dictated the answer to this case.

    Finally, if I may, parliamentary sovereignty as the last topic; it is not a separate point, we submit. It is said that the Government giving Article 50 notice is an affront to parliamentary sovereignty, because Parliament has created rights, and only it can alter them. My submission is that our case fully respects and offers no affront to parliamentary sovereignty.

    Four short points on that.

    Parliament has indicated -- the first of them is that Parliament has indicated those matters on which it is required to be involved further. It has specified when, it has specified in relation to what, and it has specified how it is to be involved, and the scheme is as described, and Government giving the notice under Article 50 is entirely, it might be thought, expressly, in accordance with that scheme and its specific consideration of Article 50.

    Secondly, that consideration by Parliament has included most recently the 2015 Act. I have made my submissions on that, the various ways in which you can view it, the fundamental aspect of it and Lord Dyson's accurate description of it as being --

  • Not totally accurate, I think you submit, because in a later paragraph, he contemplates that after the referendum, it will go back to Parliament.

  • Well, I will go back to that if you wish, but in my respectful submission, he does not contemplate that. To the extent that he says what he says, which the other side alight upon, that needs to be very carefully viewed in the context of the issue that he was actually dealing with in Shindler. He was not addressing how ultimately Article 50 should be given, how ultimately whether it should be parliamentary control or no parliamentary control.

  • I will leave it to you; if you have time we can go back to it.

  • Perhaps I will see what they make of it and come back to it in reply if I need to. But we respectfully do not accept that, but in any event, you know the bit we do accept and assert.

  • Which is the description of it as being a constitutionally important thing, and we respectfully submit that it was hard to see how parliamentary sovereignty issues could avoid considering that Act.

    Thirdly, and again, these are broader points, and I am not going to get back into territory involving inconsistent answers to questions asked by Lord Sumption again, but thirdly, just as a matter of note, with the legal submissions having already been made about their legal significance, Parliament is already deeply involved and unsurprisingly involved in the whole process of withdrawal. Of course now hereafter it can choose whatever level of involvement it wishes to have in those matters, but there have, as you know, already been debates concerning withdrawal. There was an opposition debate in October, there was an opposition debate set down for Wednesday, and it is perhaps of some interest that on neither occasion has either party, or has any party, or has anyone in Parliament called for primary legislation to be enacted in advance of the giving of the notice.

    Put another way and perhaps rather more contentiously, Parliament does not seem to want the obligation that the divisional court has thrust upon them.

    But of course it could decide to have more, or to pass legislation on the very subject if it wishes to. The point is that its interests are protected and its sovereignty is protected by its own decisions and processes, and there is no force in the point that says the court needs to intervene to protect it.

    Fourthly, it will inevitably also be involved in all the ways we have been discussing this morning, including in the detail of the legal transformation of withdrawal after notice is given. Article 50 merely starts the process. It effects in itself no change in the law once it is given. Negotiations will be needed. The outcome cannot be known. The aim will be to secure agreement but the negotiations will no doubt be long and arduous.

    We do know however, already, that Parliament will inevitably be involved in that process of withdrawal. We have the Great Repeal Bill which you have now seen the announcement in relation to; we have the very likely CRAG involvement if agreement is reached; and we have got the fact that they will inevitably have to address policy area by policy area, irrespective of the source of EU law, what the brave new world should look like.

    So in the end, we respectfully submit, the propositions that we advance are or can be reduced into something which is at least almost as short and simple as the basic case which my learned friend Lord Pannick advances against us. Again, can I just give you five brief submissions in closing, my submissions summarising our case.

    Firstly, the prerogative to make and unmake or withdraw from treaties exists today as a key part of our constitution, and as Parliament well knew in 1972 and well knows today.

    Secondly, in recognition of that, Parliament has quite deliberately chosen to regulate some parts of those prerogative powers. It has done so expressly and in detail and it is unsurprising it has done so expressly and in detail, setting out the when and the how of those controls and it has not touched the prerogative power to give Article 50 notice again and evidently quite deliberately.

    Thirdly, there is no basis, we submit, for the imposition of some form of hidden legislative presumption on Parliament's intention. The application of the strands of general principle about altering the law of the land relied on by the divisional court in the present context is wrong, we submit. The rights in question are those created on the international plane and they are simply recognised by our law.

    Indeed, it is of the very essence of the 1972 Act, if one focuses only on that, that EU rights created on that plane will be altered and removed directly through the exercise of prerogative powers, and that is a step, and a significant step along the road to finding the intention in relation to withdrawal.

    So fourthly, we submit that the apparent simplicity of the position that the respondents put forward represents, we submit, a serious constitutional trap. The principle and its application in a context such as the present is at best highly controversial. That is not, we submit, a proper premise, a proper basis for a presumption as a tool for imputing intention to Parliament.

    By applying that broad principle, outside its proper confines, we submit that it takes the court or would take the court over the line, a line which it has been assiduous to respect, between interpretation and judicial legislation. The courts would be imposing in effect a new control of a most serious kind in a highly controversial and, by Parliament, carefully considered area.

    Fifthly, the court would be doing so in circumstances in which the 2015 Act and the fact of the referendum undermine any possible suggestion at the very least that the use of that power was objectionable or anything other than entirely consistent with the will of Parliament.

    My Lords, my Lady, those are my submissions. I am going to hand over to Lord Keen unless there are further questions I can seek to help with.

  • Thank you very much, Mr Eadie. Advocate General.