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

  • My Lady, my Lords, I appear on behalf of the second respondent and I gratefully adopt the submissions of my learned friend Lord Pannick. We invite the court to approach this appeal from first principles, based on the fundamental legal doctrine of parliamentary sovereignty. Applying that doctrine, the answer to the issue posed in this appeal is straightforward and the result is clear. It is a three-stage argument which I shall summarise first and then develop.

    Stage one is the doctrine of parliamentary sovereignty itself. Parliament is supreme. No person or body apart from Parliament itself can override, nullify or set aside legislation enacted by Parliament or the operation or effect of such legislation.

    Stage two is the concession by the appellant that by triggering Article 50, EU law rights will undoubtedly and inevitably be lost. Those EU law rights are enshrined in primary legislation, most notably the 1972 Act and the 2002 European Parliamentary Elections Act. The clear legal effect of those concessions, of that concession, is that by triggering Article 50, those statutes will be nullified and overridden.

    Stage three is the absence of any parliamentary authorisation for the executive to override or nullify that primary legislation. In the absence of such parliamentary authorisation, by triggering Article 50, the Government will be acting contrary to the doctrine of parliamentary sovereignty and so the Government will be acting unlawfully.

    It follows from these three simple propositions in our submission, that the appellants' appeal must be dismissed. At heart it really is as straightforward as that.

    So, starting with stage one, which is the doctrine of parliamentary sovereignty, we have set out in our printed case the relevant principles. I am not going to go through them now, but I do want to highlight some of the core jurisprudential principles behind the doctrine, because they make it clear that the aspect of the doctrine which we rely on is absolute and it admits of no exceptions whatever.

    The doctrine itself was forged in the fires of the battlefields of 17th century England, and it arose on the basis of the clash between Crown and Parliament for supremacy. At the culmination of the Glorious Revolution of 1688, the Bill of Rights was enacted. Now, the doctrine itself long predated the Bill of Rights but it is in the Bill of Rights that the doctrine finds its legislative expression, and if I could take the court first of all to the Bill of Rights, which is in core authorities 1 at tab 106, electronic 4150 at 4152.

    At 4150, we have the heading of the Bill of Rights, and then at 4152, suspending power:

    "... that the pretended power of suspending laws or the execution of laws by regal authority without consent of Parliament is illegal ..."

    Late dispensing power:

    "... that the pretended power of dispensing with laws or the execution of laws by regal authority as it hath been assumed and exercised of late is illegal."

    Articles 1 and 2 are clear in their terms. No ifs, no buts, no exceptions. Legislation enacted by Parliament is supreme, and the executive cannot act to undo that which Parliament has done. That which Parliament has granted, only Parliament can take away.

    The most celebrated exposition of the doctrine of parliamentary sovereignty is that given by Professor Dicey in his seminal work, "Introduction to the Study of the Law of the Constitution", which was first published in 1885. In our printed case we have cited extracts from the eighth edition of 1915 which was the last edition which Dicey himself wrote. I have described Dicey's exposition as the most celebrated. It is also the most influential and in its relevant respects, Dicey's magisterial exposition still holds good today.

    If I could take the court to some relevant extracts from Dicey as quickly as I can, that is core authorities 5 at tab 157, that is electronic 4989. And at 4990, the sovereignty of Parliament is from a legal point of view the dominant characteristic of our political institutions. If you go down to under heading A, "Nature of parliamentary sovereignty":

    "Parliament means in the mouth of a lawyer, though the word has often a different sense in ordinary conversation, the King, the House of Lords and the House of Commons. These three bodies acting together may be aptly described as the King in Parliament and constitute Parliament. The principle of parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined has under the English constitution the right to make or unmake any law whatever, and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament."

    Then if you would go down about ten lines into the next paragraph, there is a section which reads, halfway down the page:

    "There is no person or body of persons who can, under the English constitution, make rules which override or derogate from an act of Parliament or which, to express the same thing in other words, will be enforced by the courts in contravention of an act of Parliament."

    If you would then, please, move to the next tab --

  • That is the issue, isn't it, whether what is proposed here is in contravention of the 1972 Act?

  • My Lord, precisely, that is the issue. That is going to be my stage two, which is looking at the rights to see whether or not there is a contravention, but your Lordship is absolutely correct, on the principle, the question is will there be a contravention.

  • Just because rights are lost, which is your stage two, does not mean to say that they are lost in contravention of the statute which granted them; it may be that they are conditional or ambulatory.

  • My Lord, it could be, if they are conditional, but the point is this, if they are granted by Parliament -- a right is a right, if it is a statutory right, that is something granted by Parliament. The effect will be to override or nullify that primary legislation, because the rights which are afforded by that legislation will have been taken away.

  • It depends, doesn't it; I mean, if the legislation said so long as the executive agrees, for example, there would be no problem.

  • My Lord, that is absolutely correct. That is my stage three, which is, is there any parliamentary authorisation.

    So, for example, there would be parliamentary authorisation if the statute, there was a Henry VIII clause or whatever it may be, made specific provision, for example, for rights to be taken away.

    So it is a three stage argument and I am on stage one, which is just setting out the principle, before I get to my stage two and then stage three. In stage three I will also be making submissions on the 2015 Act.

  • Yes, they could be conditional upon something other than a specific decision to take them away; they could be conditional upon -- any event but in particular they could be conditional on membership of the EU.

  • Yes, that is an example. The one I was going to draw your Lordships' attention to was the argument under the European Parliamentary Elections Act where what is said: well, what if there is no EU Parliament? In our submission, that does not matter. What matters is if there is a right to vote or to stand for elections to the European Parliament which has been granted under the 2002 Act, that is a domestic statutory right which, even if it cannot be exercised, has still been granted by Parliament, and it is Parliament's choice whether or not that right should be taken away.

  • The rule that the prerogative cannot take away rights is not limited to statutory rights, is it?

  • My Lord, it is not limited to statutory rights; we would say it applies to all rights, including common law rights.

    I was going to move quickly to tab 331, which is the next tab, and it is electronic 9343.

  • What is that number again, please?

  • Electronic 9343, we are still in Dicey but it is spread over two tabs, I am afraid. The relevant extract is 9343. The very bottom of the page:

    "Thirdly, there does not exist in any part of the British empire any person or body of persons, executive, legislative or judicial, which can pronounce void any enactment passed by the British Parliament on the ground of such enactment being opposed to the constitution on any ground whatever, except of course it being repealed by Parliament."

    Then if we go back to the previous tab, which is 157, sorry to jump around but it is just that it is spread over two tabs, if we then go, please, to page 5005, in the electronic numbering, you will see halfway down the page:

    "Two points are, however, well established. First, the resolution of neither House ..."

    This is a substantial -- result of the case of Stockdale v Hansard, a point which my learned friend Lord Pannick was on, and then specifically relevant to the question of the role of the people in terms of political power and legal power. If you move on, please, to 5010, you will see at the top of the page, the vote of the parliamentary electors and halfway down that page:

    "The sole legal right of electors under the English constitution is to elect members of Parliament. Electors have no legal means of initiating or sanctioning or of repealing the legislation of Parliament. No court will consider for a moment the argument that a law is invalid as being opposed to the opinion of the electorate. Their opinion can be legally expressed through Parliament and through Parliament alone."

    Then in the same vein --

  • That needs to be modified, at any rate to some extent, in an age of referenda.

  • My Lord, I am going to come to that but in our submission, the answer is yes, if Parliament has authorised a binding referendum. But if there is no binding referendum which has been authorised, this still obtains.

  • Does that include the first sentence you read out?

  • "The sole legal right of electors under the English constitution is to elect members of Parliament."

    That is correct because it would be for Parliament then to confer rights on the people to hold a referendum, for example, but the sole legal right is to elect.

  • There is an anonymous and slightly droll publishers' note at the next section of Dicey, 9322, which says the word "referendum" is a foreign expression derived from Switzerland. 30 years ago it was almost unknown to Englishmen, even though they were interested in political theories.

  • Certainly Dicey changed his view on referenda because he was terribly against Irish home rule, and he wanted referenda introduced to try and defeat Irish home rule. He didn't succeed.

  • He wanted a referendum in England about Irish home rule.

  • That's correct. He didn't get it.

    My Lords, and my Lady, 5024, halfway down the page:

    "The matter indeed may be carried a little further, and we may assert the arrangements of the constitution are now such as to ensure that the will of the electors shall by regular and constitutional means always in the end assert itself as the predominant influence in the country ... this is a political, not a legal fact. The electors can in the long run always enforce their will, but the courts will take no notice of the will of the electors. The judges know nothing about any of the will of the people, except insofar as that will is expressed by an act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors. The political sense of the word 'sovereignty' is, it is true, fully as important as the legal sense or more so but the two significations, though intimately connected together, are essentially different."

    The final extract is over the page on 5026, five lines from the bottom:

    "The electors are a part of and the predominant part of the politically sovereign power but the legally sovereign power is assuredly, as maintained by all the best writers on the constitution, nothing but Parliament."

    Now, the appellant says that he does not dispute what he terms the general principle of the doctrine of parliamentary sovereignty, and he goes on to say that nevertheless it is the case that the executive can by the use of the prerogative alter the law of the land, including that set out in statute.

    Now, from a parliamentary sovereignty purpose, that striking proposition is, we submit, simply wrong. The doctrine of parliamentary sovereignty is not a general principle, it is the fundamental legal doctrine upon which our constitution stands.

    As we have explained in our written case, and as the courts of the highest authority have said over the centuries, the doctrine of parliamentary sovereignty conditions and refines and defines other relevant concepts. Most importantly in this context, the issue and the extent and use of the prerogative.

    The United Kingdom's dualist approach to international treaty-making upon which the appellant so heavily relies is a product and a reflection of that fact. The UK's dualist approach exists precisely because the executive cannot alter domestic law by the use of the foreign affairs prerogative and the use of the prerogative of withdrawal. There has to be authorisation by Parliament.

    The two relevant authorities for that, which I will not ask you to turn up but I will simply ask you to note, is Rayner, that is core authorities 3, tab 43, page 500 in the report at letters B to D, electronic 1179; and Higgs, which is core authorities 4, tab 260 at page 241 of the report, electronic 7244.

    Now, contrary to the submissions made by my learned friend Mr Eadie, parliamentary sovereignty is not a new or a newly discovered principle. It has been well established and operated for over 300 years. But it does not in any way represent a challenge to the way in which the Government operates on the international plane. Nor will it require in the future any parliamentary micromanagement of what the Government does on the international plane. This is because it does not impact treaties which do not require implementation in domestic law. It does not impact on the exercise of power by Government on the international plane which is authorised by Parliament. For example, participation of ministers in the decision-making of EU institutions. The doctrine does not impact on the use of the prerogative in respect of the myriad of examples which are given by the appellant in his case, for example Post Office v Estuary Radio, or in relation to the (Inaudible) of diplomats, so that is stage one.

    That brings me to stage two, which is the appellant's concession, which is in paragraph 62A of his printed case, the page reference is 12353, and the concession is that the triggering of Article 50 "will undoubtedly lead to the removal ... rights and obligations currently conferred or imposed by EU law".

  • Could you just give that page again.

  • That is 62A of the appellant's printed case, the page reference is 12353.

    The appellant's description of these rights as being conferred by EU law is not an accurate description of the source of these rights as a matter of domestic law. For the purposes of the doctrine of parliamentary sovereignty, the source of the relevant rights in domestic law is absolutely critical. Of course the source of the EU law rights which are being referred to here are primarily the 1972 Act and the 2002 Act.

    Now, those rights were directly conferred in domestic law by those two acts of argument. These rights are available in domestic law only because Parliament has expressed its will by primary legislation that this be so.

    Now, in this context, it is important to have a full appreciation of the circumstances in which and the reason why Parliament decided to enact the 1972 Act at all.

  • Could I just pick up on a point where these rights come from. In the case of Youssef, we had to deal with a rather unusual situation where one had a decision made by a United Nations body in the terrorism context which then took effect under a European regulation, which then in turn came into domestic law via the 1972 Act.

    Now, I said in agreement with my colleagues that that was something which arose not from domestic law, although it was brought into domestic law, it is a sort of typical example of the conduit approach.

  • Is that the correct analysis in your view, or is that an oversimplification?

  • My Lord, with respect, that is not the correct analysis.

  • I put it to you because it is relied on by -- in one of the papers -- cases before us.

  • Yes. Under our dualist approach, for any rights to be conferred in domestic law, requires the intervention of Parliament.

  • I accepted that. That was one of the issues in the case, was whether that had been done effectively, given the particular power interfered very drastically with the rights of a citizen of this country.

  • Now, are you saying we got it wrong or --

  • Do you need to see the case, really, in order to answer that?

  • Yes (Inaudible). The general principle as I say in our dualist system requires the intervention of Parliament in order to create these rights. These rights are not just being transposed through a conduit; the domestic legal order is being changed by the 1972 Act.

  • It may be, as my Lord says, better to have a look at the case. I think it is in the papers somewhere, because it is mentioned by the lawyers --

  • Perhaps I can come back to that after the adjournment so that we can speed on.

    In 1971 the Government was proposing that we join the then EEC and to do that, they were proposing that the UK sign the accession treaty.

    Now, joining the EEC would have two important consequences for the UK. The first is that membership would necessarily involve the UK in the significant fiscal obligations of membership. These fiscal obligations could only be sanctioned by Parliament, by primary legislation. We saw that happened in section 2(3) of the 1972 Act.

    Membership would also involve changes to domestic law and again that could only be achieved by Parliament through primary legislation.

    So it was that on 28 October 1971, Parliament was asked to give its consent in principle to the UK joining the EEC. The terms of the relevant parliamentary resolution, which were referred to by my Lord, Lord Mance earlier, were identical, they were put separately to both Houses and the terms are important. The court will find them in volume 17 of the authorities at tab 193, and the electronic reference is 5787.

  • You set this out in your case, don't you?

  • My Lord, we have set out the terms of the resolution. I want to just show your Lordship also a short passage in the debate which we have not set out in the case. I just wanted to first of all take you to that.

  • Sorry, the page again?

  • It is page 5787, and you will see the terms of the resolution:

    "This House approves Her Majesty's Government's decision in principle to join the European Communities on the basis of the arrangements which have been negotiated."

    So by these resolutions the Houses of Parliament were being asked to give their consent in principle to the Government's in principle decision to join the EEC; in other words if the resolutions were passed, Parliament could next expect the introduction of a European Communities bill to give effect to the in principle decision to join the EEC. But if those resolutions had not been passed, the UK's proposed membership of the EEC would have been stopped in its tracks.

    Now, this was made clear by Mr Heath, the then Prime Minister, and if I could just take you to two very short passages, first of all at 5846, electronic 5846, which is towards the very end of this tab, 193, for those who have it in paper form. 5846, at the very top of the page, this is Mr Heath winding up the debate:

    "I do not think that any Prime Minister has stood at this box in time of peace and asked the House to take a positive decision of such importance as I am asking it to take tonight. I am well aware of the responsibility which rests on my shoulders for so doing. After ten years of negotiation, after many years of discussion in this House and after ten years of debate, the moment of decision for Parliament has come. The other House has already taken its vote and expressed its view. Frontwoodsmen have voted in favour of the motion ... I cannot over-emphasise tonight the importance of the vote which is being taken, the importance of this issue, the scale and quality of the decision and the impact it will have, equally inside and outside Britain."

    So that was the momentous occasion which was the presager to the 1972 Act. If you then go to 5849, at the very bottom, four lines up, this is still in Mr Heath:

    "It is well known that the President of France, supported by the Chancellor of Germany, has proposed a summit meeting of heads of Government ... This meeting will settle the European approach."

    Then over the page:

    "If by any chance the House rejected this motion tonight, that meeting would still go on and it would still take its decisions which will affect the greater part of western Europe and affect our daily lives but we would not be there to take a share in those decisions."

    So if the resolutions had not been passed, the reality is that the Government would not have been able to go on to sign the accession treaty because if it had done so, it would have been acting directly contrary to the will of Parliament if those resolutions had been rejected. Of course if they had been rejected, there would have been no European Communities bill. However, the resolutions were passed and they led to the signing of the accession treaty on 22 January 1972 and the introduction of the European Communities bill which became an act on 17 October 1972. So that is the context in which the Act was passed.

    In our submission, everything from then on has to be seen through the prism of the 1972 Act. On the very next day, 18 October, the UK ratified the accession treaty and these dates are no coincidence. Prior to ratification, it was necessary for Parliament to pass legislation which would enable the UK to meet its fiscal obligations and would enable the UK to change domestic law.

  • As a matter of domestic law, would it have been open to the executive, to the Government, to decide not to ratify the treaty once the 1972 Act had been passed?

  • My Lord, strictly speaking, as a matter of law, it may have been. Our submission is that if Parliament had expressed its will that the UK join the EEC through these resolutions, if it then passed the Act which makes provision for that joinder, then we would say it would in fact be unlawful for the executive to go against the will of Parliament, because the 1972 Act makes express provision for our entry into the EEC, so that domestic law could be altered, so once the Act was is passed, that is it.

  • My Lord's question related to whether there was an obligation to enter into the Act.

  • No, ratify the treaty.

  • To ratify the treaty. But once it was ratified, then at any rate the rights were created. I suppose therefore that there are two stages we have to consider it at.

  • It is really the latter which is the critical one.

  • It is the latter, it is the 17 October enactment, 18 October ratification.

  • Of course that is the history once it has been ratified, but I just wondered whether that tiny 24 hours or whatever it was, the position there throws any light on the subsequent position; and it seems to me in some ways that you may well be right, consistently with your argument, there was an obligation to ratify.

  • Yes, we would say it would have been an abuse of power under Fire Brigades Union principles if there was no ratification.

  • I see the force of that, thank you.

  • Article 2 of the accession treaty itself mandated that the accession treaty be ratified in accordance with the UK's "own constitutional requirements", obviously a familiar phrase. We say those constitutional requirements included the passing of the 1972 Act by Parliament.

    Now, the correct constitutional position, so far as ratification is concerned, is clearly set out by the late Lord Templeman writing extra-judicially in 1991, in his article, "Treaty-making and the British Parliament -- Europe".

    The court will find that in volume 28, tab 351, electronic, 9688, and I would ask you to turn that up, please. This is an article published in the Chicago-Kent Law Review, volume 67. You see the title page at 9688. If we go to 9689:

    "Under English law the capacity to negotiate and conclude treaties falls entirely to the executive arm of the Government. Nominally Parliament plays no role at all in the process."

    If we drop down a few lines:

    "An understanding of how treaties are entered into and implemented in British law depends on an appreciation of the division between the international aspects of treaty-making and the domestic aspects of implementation. Parliament has very little involvement in the former but almost complete control over the latter aspect."

    Then at 9690, halfway down the page:

    "The theoretical powers of Parliament in relation to treaty making may be summarised as follows ...

    "(2) Parliament may prevent a treaty being ratified if the Government submits the treaty to Parliament before ratification. However, if the House of Commons carried a vote against ratification, this result would also lead ... the Government.

    "(3) If treaty provisions affect private rights or otherwise conflict with English common law or United Kingdom statutes, Parliament may ensure that such provisions are not effective by refusing to pass the necessary statute which gives effect to the treaty. There again the failure of the Government to retain the enactment of the necessary provisions would lead to the fall of the Government. The threat of defeat means that a Government will always do all in its power to ensure that when negotiating a treaty, the provisions of the treaty will be acceptable to the majority of the legislature into the electorate."

    Then, over the page at 9691, just above the heading "(2) Negotiations and conclusion of a treaty", four lines up:

    "In practice a treaty approved by a Government which retains the support of a majority in the House of Commons will be ratified and the effect of the treaty will be given if the necessary in English law by the passage through Parliament of statutory incorporation of the provisions of the treaty."

    Then at 9693, under the heading "(3) Parliamentary approbation or approval of treaties":

    "Broadly speaking, Parliament will need to be involved where taxation is imposed or where a grant from public funds is necessary to implement the treaty where existing domestic law is affected ..."

    And then he gives a few more examples.

    At 9694, under the heading "Ratification of treaties," the last line of the page:

    "It is also envisaged that between the time of negotiation and the act of ratification, the legislature of a state may require to be given an opportunity to scrutinise the proposed international agreement, even in those states where legislative involvement is greater than in the UK, in order to give the necessary approval of the treaty."

    There is then a reference to Article 14 of the Vienna Convention and then:

    "Ratification, once an opportunity for the sovereign to confirm that the representative did in fact have full powers to conclude a treaty, is now a method of submitting the treaty making powers of the executive to some control of the legislature, so the state may give proper scrutiny to the treaty before it allows the Government to bind the state to it."

    Then under the heading "The Ponsonby rule", Lord Templeman sets out on page 9695, at footnote 11, the preface by Mr Ponsonby to the Ponsonby rule, and at the beginning he says:

    "It has been the declared policy of the Labour Party for some years to strengthen the control of Parliament over the conclusion of international treaties and agreements and to allow this House adequate opportunity to discuss the provisions of these instruments before their final ratification.

    "As matters now stand, there is no constitutional obligation to compel the Government of the day to submit treaties to this House before ratification except in cases where a bill or financial resolution has to receive parliamentary sanction before ratification."

    So there is a distinction being drawn between, on the one hand, bills where there is a constitutional obligation, treaties to put them before Parliament because they contain fiscal obligations or change the law of the land, and separately the treaties which do not require to be so put forward, but are under the new Ponsonby rule which is coming.

    We had that at 9696, and at the top of the page I come therefore to the inauguration of a change in custom and procedure. Then about eight lines down, he says:

    "There are two sorts of treaties. There is the present treaty out of which a bill and a financial resolution arise which necessarily comes before Parliament and in regard to which no change is necessary ... there is another sort of treaty out of which no bill arises, and that is the sort of treaty which, according to the present practice, need never have been brought before the House at all."

    That then becomes the Ponsonby rule.

    So we are dealing with the accession treaty with a situation where there was in our submission a constitutional obligation to bring it before Parliament so that domestic law could be changed.

    There is just one further reference. My learned friend Lord Pannick took you to the green paper in relation to CRAG. There is also a relevant passage in the white paper, which is at bundle 15, tab 167. That is electronic 5213. The relevant electronic page number is -- in this document we are looking at the white paper -- 5282 and it is paragraph 119 of the white paper. Under the heading, "Treaties in domestic law":

    "In the UK international treaty rights and obligations are not automatically incorporated into national law upon ratification. They are given effect in national law where necessary by primary or secondary legislation. The Government practice is not to ratify a treaty until all the necessary domestic legislation is in place, to enable it to comply with the treaty, since to do otherwise could put the UK in breach of its international obligations. Parliament, including where necessary the devolved legislatures, had the opportunity to debate enabling legislation ... this practice applies equally to all EU treaties that require enabling legislation. Most parliamentary debates take place under this process rather than the Ponsonby rule."

  • Can you just say again what paragraph that was.

  • 119, my Lord, forgive me.

  • That is all right. Thank you.

  • So even before the Ponsonby rule came into effect in 1924, there was this constitutional requirement, we submit, for Parliament's consent to be given to ratification of the accession treaty. Now, neither the Ponsonby rule nor CRAG apply to treaties which are required to be implemented under domestic law. Contrary to my learned friend Mr Eadie's submissions, CRAG and the subsequent legislation is nothing to the point on the question of withdrawal from a treaty under Article 50. There is this prior fundamental lock, we would submit, and that lock is brought about by the fact that the EU treaties require implementation in domestic law.

    Now, the reason I go through all that history at quite some length is for two reasons. First, it demonstrates, we submit, the interaction of the doctrine of parliamentary sovereignty and the UK's dualist approach to international treaties. The treaties could have no impact on domestic law without the 1972 Act, but it was an absolutely essential feature of the treaties, as international law instruments, that much of them should have and should be given effect in domestic law.

    So the 1972 Act was essential. If the treaties could not have had effect in domestic law, without Parliament passing the 1972 Act, so it must be that the effects of those treaties in domestic law can only be removed by Parliament and not by the executive. The key point about the dualist system from a parliamentary sovereignty perspective is that, when the UK enters into a treaty which requires domestic implementation, Parliament remains in control of the process. It remains in control if the necessary enabling legislation is passed or not. Parliament has a free choice. If Parliament refuses to pass the legislation, the treaty is not ratified.

    Now the corollary of Parliament having that control is that parliamentary control must equally apply to the withdrawal process. It is for Parliament to choose whether it will repeal the legislation which implemented the treaty in domestic law.

    For that reason, Parliament remains in effective control, whether the UK withdraws from the treaty or not.

    The difficulty with the appellant's argument is that the triggering of Article 50 by the Government alone will bypass that parliamentary control, and it will rob Parliament of any substantive choice as to whether or not to repeal the 1972 Act.

  • Isn't there a missing middle or -- in that proposition? Take the example of the double taxation treaties and the legislation giving effect to them, it gave effect to them, I think you argue, on the basis that the double taxation treaties would confer domestic rights so long as they were in existence, ie it remained in the executive's power what double taxation treaties to enter into and whether to abrogate them.

    So that merely because treaties would not have had an effect without an act does not mean to say that they could only be disapplied by an act; the initial Act may itself contemplate, permit, their disapplication because it has a limited effect, the initial Act, and the question in this case comes down to whether the 1972 Act is that sort of limited legislation.

  • My Lord, yes. I am coming on to that, but specifically so far as the double taxation treaties are concerned, under TIOPA, of course there is the enabling legislation, and then orders in council are made and so the Government has authority.

  • Yes, that is because TIOPA says that, and, I mean, TIOPA could have been formulated differently, perhaps, but for good reason, no doubt, it was formulated as it was.

  • Yes, it could have been but we have the 1972 Act, and when I come to the point, my stage three, we will say there is nothing in the Act to deal with that.

  • Secondly, the reason I go through this history, is because it throws into stark reality in our submission, our respectful submission, the fallacy in the appellant's proposition that the EU law rights enshrined in the 1972 Act are somehow not domestic statutory rights, or they are a conduit, to use my Lord, Lord Carnwath's point.

    It is absolutely essential to the whole function and the purpose of the 1972 Act, and to the operation of the treaties themselves, and to the UK's membership of the EU, that these rights are precisely that, domestic law rights. That is fundamental to being a member of the EU. They have to be put into domestic law and only Parliament can do that.

    That is how the position has been understood by the courts in this country over a number of years, and I give two examples, again without asking the court to turn them up but just for your note. The first is Thoburn in core authorities 3, tab 22, it is paragraph 66 of the judgment, electronic page 746; and the second one is McWhirter, which is paragraph 6 of the judgment, which is in core authorities 3, tab 46, electronic 1849.

    The position is also clear, we submit, from the European Union Act of 2011, section 18, which my learned friend Lord Pannick took you to yesterday. That is the declaratory provision which says that EU law rights fall to be recognised and available in law only, and I stress the word "only", because of the 1972 Act.

  • I have to say that I still don't really understand what Parliament was getting at --

  • I am just about to hopefully enlighten your Lordship because I am going to take the court now to the explanatory notes, which is helpful on this, certainly in the parliamentary sovereignty context.

  • You set them out in your case and having read it this morning, I still don't understand it.

  • Then I am determined to make sure that your Lordship reaches the short adjournment hopefully with a better understanding.

    The explanatory notes are in volume 30 of the authorities, tab 403. And it is electronic 10362, they start at 10352 and the relevant provisions are paragraphs 118, 119 and 120, and that is at page 10362. Perhaps I could just ask the court to read very quickly 118, 119 and 120 and I hope that will answer my Lord, Lord Wilson's question. If not, I will do my best to answer any further questions.

  • (Pause)

    Does my Lord, Lord Wilson have the relevant passage?

  • So we see from that in parliamentary sovereignty purposes, the reason this has been done was because although it was thought the doctrine of parliamentary sovereignty was sufficient to ensure that EU law was not supreme in the parliamentary sovereignty sense, section 18 is declaratory, and it is really belt and braces, to make it absolutely clear to everybody that EU law rights solely take effect under English domestic law through the will of Parliament.

    It is --

  • What has been said to the contrary which concerned Parliament?

  • My Lord, I imagine various noises in certain sections of the House of Commons, by certain MPs who may have been concerned about what they might term the encroachment -- this was --

  • It had been suggested at one stage, had it not, that the doctrine of primacy, combined with the statements of principle in cases like Costa v ENEL, did have precisely that effect, and indeed Ms Sharpston made a submission to that effect to the divisional court in Thoburn which was rejected.

  • Yes. My Lord, that is very helpful. Of course there is also Factortame which is in a similar vein.

  • There is the long-standing discussion between constitutional courts around Europe and the European Court of Justice as to which is supreme in areas falling within the scope of the local constitution, isn't there; it is the same point?

  • It generally resulted in the conclusion which is the same as the one that exists here, essentially based on the local constitutional arrangement.

  • Yes.

    My Lord, moving on, the appellant's argument based on the phrase "from time to time" in section 2(1) of the 1972 Act, in our submission, does not detract from parliamentary sovereignty. You have our printed case on that, I will not ask you to turn that up, but it is paragraph 38 of our printed case, at 12470. But I do want to deal with one particular argument which was in fact raised by Lawyers for Britain in its written intervention, and that argument to a certain extent was taken up to a certain extent by Mr Eadie. The argument is that from the passing of the 2008 Act, the rights given by section 2(1) must be read as rights granted from time to time subject to the operation of Article 50.

    Now, you have heard from my learned friend, Lord Pannick in relation to that, and the broad point is that Article 50 throws you back to domestic constitutional requirements, but I want to add this, that the introduction of Article 50, specifically in the context of the doctrine of parliamentary sovereignty and the 1972 Act, was considered by Parliament. It was considered by the House of Lords select committee on the constitution, during the passage of the bill which eventually became the 2008 Act. The select committee's report is at volume 17 of the authorities at tab 198.

  • Does this get a mention in your case?

  • My Lord, it does, I believe, get a mention in our case. I will just check, certainly we have referred to it below but I believe it is in our case as well. I will give your Lordship the reference. It is electronic 5977. This is 17 at 198 -- sorry, it actually starts at 5917 which is the sixth report of the select committee. It is a report with evidence.

    If you start, please, at page 5922 and paragraph 6, you will see that the committee wrote to the foreign secretary to ask him to set out the Government's view of how the Lisbon treaty would affect the UK constitution, and his reply is produced and the court will find that at 5974. The relevant passage is at 5977, and it is the final two paragraphs above the heading, "Courts and the judiciary":

    "The Lisbon treaty has no effect on the principle of parliamentary sovereignty. Parliament exercised its sovereignty in passing the 1972 Act and has continued to do so in passing the legislation necessary to ratify subsequent EU treaties. The UK Parliament could repeal the 1972 Act at any time. The consequence of such repeal is that the UK would not be able to comply with its international and EU obligations and would have to withdraw from the European Union. The Lisbon treaty does not change that and indeed for the first time includes a provision explicitly confirming member states' rights to withdraw from the European Union."

    That then led to the committee's relevant conclusion in paragraph 95 of the report itself, which is at 5943. In paragraph 95 the committee say this:

    "We conclude that the Lisbon treaty would make no alteration to the current relationship between the principles of primacy of European Union law and parliamentary sovereignty. The introduction of a provision explicitly confirming member states' rights to withdraw from the EU underlines the point that the United Kingdom only remains bound by European Union law as long as Parliament chooses to remain in the Union."

    Now, in our submission, that explains at a general level why there was no need for any parliamentary control under article -- control of Article 50, under section 6 of the 2008 Act. Because Parliament was proceeding on the basis that under the doctrine of parliamentary sovereignty, it was for Parliament to decide whether or not to remain in the EU.

    So my Lords, that is the position in relation to the 1972 Act. The point can also be illustrated in relation to the European Elections Act 2002 and there, I don't ask you to turn it up but for your note it is at core volume 1, page 128, electronic 4434, the rights granted under that Act, rights to stand for election and to vote, are conferred by the 2002 Act itself.

    There is no reference made to rights deriving from a different legal system, or rights obtained in any other instrument; in other words, the source of the rights in every sense is legislation enacted by Parliament. And that is all that is required to engage the doctrine of parliamentary sovereignty.

    I have already dealt with the existence of the European Parliament point and my learned friend, Lord Pannick, has dealt with the other point which arose on this, which is the rights are contingent on the executive deciding to exercise the prerogative to withdraw. That, as Lord Pannick submitted, simply begs the question of whether the executive can give an Article 50 notification without the approval of Parliament.

    For parliamentary sovereignty -- so far as the 2002 Act is concerned, the rights which are granted to citizens take effect of and function under the domestic legal order. It is precisely because those rights take effect under the domestic legal order that the principle of parliamentary sovereignty has been engaged. It is important to note that the "from time to time" argument could not in any event work in relation to the 2002 Act, and nor could the supposed impact of the advent of Article 50 have any impact on the 2002 Act, because the point there is there is no warrant to make those rights contingent on the introduction of Article 50; the 2002 Act is such that the rights are set out in stone.

    So just before the short adjournment, I can now return to the core of my stage two argument, which is that once it is understood that the source of the relevant rights in domestic law is primary legislation passed by Parliament, then the legal effect of the appellant's concession in paragraph 62A of his case can be properly understood, because what it amounts to is that rights granted by Parliament under primary legislation will undoubtedly and inevitably be lost or removed by notification under Article 50.

    Not just EU law rights, but rights granted by Parliament under acts of Parliament.

    So that brings me to stage three which is whether Parliament has authorised the executive to bring about the inevitable loss of rights. Under the doctrine of parliamentary sovereignty, the authorisation of Parliament is needed because only Parliament can override, set aside or nullify legislation. It is important here to underline that the appellant does not claim any parliamentary authorisation; he says he doesn't need it, he says that the prerogative power suffices.

    But this, in our respectful submission, goes back to the flaw in the appellant's argument because the appellant's approach, we submit, betrays a fundamental misunderstanding of the doctrine of parliamentary sovereignty. Looked at through the prism of parliamentary sovereignty, the prerogative is nothing more than a label for executive action. The prerogative can only be exercised through executive action. And executive action is unlawful if it contravenes the doctrine of parliamentary sovereignty, and given that in this case, in our submission, the exercise of the prerogative will lead to this loss of rights in primary legislation, the only question which remains is whether or not there is parliamentary authorisation. And under the doctrine of parliamentary sovereignty, that is the correct approach to the issue, but the appellant seeks to persuade the court to look at matters from the wrong end of the telescope.

    The appellant says that the starting point is to look to see whether there a prerogative and, if there is, he says the issue becomes whether or not the prerogative power has been limited by Parliament in the relevant respect.

    But that, in our submission, looks at the matter completely the wrong way round, because it turns the doctrine of parliamentary sovereignty on its head. No, once it has been accepted, as it has here, that executive action will override primary legislation, the correct approach in our submission is for the executive to show that Parliament has authorised the loss of rights in question.

    It is not a question of looking to see if there a prerogative power which has or has not been limited, it is for the executive to show in clear terms that Parliament has authorised the loss of statutory rights intended to be brought about by this executive action.

    So just to finish this point off, in answer to a question my Lord, Lord Reed raised yesterday, and that was whether or not the referendum result could provide a basis for the rational use of the prerogative, if there was a prerogative. Well, we submit this case does not involve the question of whether or not what the appellant proposes to do is a rational use of the prerogative; without parliamentary authorisation, the proposed executive action is not lawful, so there is simply no prerogative at all, in our submission, in that respect.

  • Is that a convenient moment?

  • My Lord, I was just about to ask.

  • Could I mention the Youssef case, if you want to come back to, I think it is at 36, 496 in the supplementary bundle, MS 67.

  • That is very helpful, thank you.

  • Thank you very much. Court is now adjourned.

    We will resume again at 2.00 with Mr Chambers. Thank you.

  • (The Luncheon Adjournment)

  • We are going to try a new angle, Mr Chambers.

  • My Lady and my Lords, in accordance with the registrar's excellent ambulatory seating plan, I have moved slightly to the right -- or the left.

    In answer to my Lord, Lord Carnwath.

  • I thought you were trying to escape from me.

  • My Lord, the reference to Youssef, as your Lordship very kindly pointed out, is in tab 496. At paragraph 34 of the judgment, supplementary electronic page 693, it was the Secretary of State who exercised prerogative powers at the international level to sanction or to list Mr Youssef on the sanctions list. The effect of that was to cause alterations to his domestic law rights under the EEC regulation 881, or EU regulation 881, which of course comes into English domestic law through section 2(1) of the 1972 Act. So it is no different in our submission to any European Union law which is given domestic legal effect through section 2(1).

    My Lords, I am going to go back to my stage three, and that is parliamentary authorisation. In our submission, there is nothing in the 2015 Act which could provide parliamentary authorisation, whether it is viewed through the prism of the prerogative or parliamentary sovereignty. Parliament passed the 2015 Act knowing full well that in our system of representative parliamentary democracy, referendums are not legally binding.

    That was the legal position back in 1975, when the 1975 referendum was held on then EEC membership, and the 1975 Referendum Act is in volume 12 of the authorities at tab 111, electronic 4213. The reason I am taking you to that is because it is in materially identical terms to the 2015 Act, which is in core authorities 1, tab 7, electronic 1601.

    Both are in section 1 and both say:

    "A referendum is to be held on whether the United Kingdom should remain a member of ..."

    "the European Union" for 2015, or "the EEC" for 1975.

    Under the terms of the 1975 Act, in our submission, the 1975 referendum was not legally binding. This is clear from a variety of sources but I will take the court to two, if I may. The first is Professor Vernon Bogdanor's book, "The new British constitution", which the court has in volume 15 at tab 168. That is electronic 5308.

    Unfortunately the front page to the book is missing, and we can have that copied, but "The new British constitution", Professor Vernon Bogdanor, 2009.

    This is in chapter 7, the referendum. The relevant passage is at 5325. It is the last paragraph on 5325:

    "In countries with codified constitutions, the outcome of a referendum generally binds both Parliament and Government. In Britain, however, with an uncodified constitution, the position is much less clear. Although neither Parliament nor Government can be legally bound, the Government could agree in advance that it would respect the result, while a clear majority on a reasonably high turnout would leave Parliament with little option in practice other than to endorse a decision of the people. Shortly before the European Community referendum in 1975, Edward Short, then leader of the House of Commons insisted to the House that 'this referendum was wholly consistent with parliamentary sovereignty. The Government will be bound by its result but Parliament of course cannot be bound'. He then added 'although one would not expect honourable members to go against the wishes of the people, they remain free to do so'.

    "That was an accurate statement of the constitutional position only on the assumption that Short meant that the Government would be morally bound. It could not be legally bound for in the purely formal sense, it was still the case that the British constitution knew nothing of the people."

    There are echoes of Dicey there which I took the court to this morning.

    At footnote 19 there is a reference to Mr Short which I would like to take the court to; it is volume 17 at tab 195. Electronic reference 5904, it is volume 17, tab 195. This is the Lord President of the council and the leader of the House of Commons, Mr Edward Short, and the relevant passage is at 5905, the very top of the page:

    "I understand and respect the view of those devoted to this House and to the sovereignty of Parliament who argue that a referendum is alien to the principles and practices of parliamentary democracy. I respect their view but I do not agree with it. I will tell the House why. This referendum is wholly consistent with parliamentary sovereignty. The Government will be bound by its result but Parliament of course cannot be bound. Although one would not expect honourable members to go against the wishes of the people, they remain free to do so. One of the characteristics of this Parliament is it can never divest itself of its sovereignty. The referendum itself cannot be held without parliamentary approval of the necessary legislation, nor, if the decision is to come out of the Community, could that decision be made effective without further legislation. I do not, therefore, accept that the sovereignty of Parliament is in any way affected by the referendum."

    Then, to follow the history through, we have the Government's response to the House of Lords select committee's report on referendums of 2010. The court will find that in volume 18 at tab 201. That is electronic reference 6265. Tab 201, 6265, this is the fourth report of 2010 to 2011, the Government response to the report on referendums in the United Kingdom, published on 8 October 2010.

    This report is incorporating the Government's response to the select committee's report on referendums. What the committee does is it sets out its conclusions and the Government's response to each of its conclusions. The relevant page is 6275, where, if you go to 6275, you will find two columns, one headed "Recommendation" and one headed "Government's response". It is recommendation number 3 on that page, the third one down:

    "We recognise that because of the sovereignty of Parliament, referendums cannot be legally binding in the UK and are therefore advisory. However, it would be difficult for Parliament to ignore a decisive expression of public opinion."

    The Government's response was:

    "The Government agrees with this recommendation. Under the UK's constitutional arrangements, Parliament must be responsible for deciding whether or not to take action in response to a referendum result."

    Then to complete the story, we also rely on the House of Commons briefing paper, which was referred to in paragraph 107 of the divisional court's judgment. The briefing paper is also in volume 18 and it is in the next tab, 202. The electronic reference is 6279. This is briefing paper number 07212, 3 June 2015. European Union Referendum bill by Elise Uberoi from the House of Commons library.

    If you go to 6281, under "Summary", the bill was introduced in the House of Commons on 28 May 2015 and requires the holding of a referendum on the UK's continued membership of the European Union before the end of 2017.

  • 6281. This is the first paragraph of the summary. This paper has been prepared as a guide in advance of the second reading debate on Tuesday, 9 June 2015.

    Then if the court would please go to 6303, in section 5, with the heading, "Types of referendum":

    "This bill requires a referendum to be held on the question of the UK's continued membership of the EU before the end of 2017. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as a pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum could be held are set out in its constitution.

    "In contrast, the legislation which provided for the referendum held on AV in May 2011 would have implemented the new system of voting without further legislation, provided that the boundary changes also provided for in the Parliamentary Voting System and Constituencies Act 2011 were also implemented. In the event there was a substantial majority against any change."

  • Do we know who the author of this was? We were referred to it before.

  • Yes on the first page at 6279 on the cover sheet, does your Lordship see "Elise Uberoi"?

  • Elise Uberoi is a member of the House of Commons library. I am being helpfully referred to the back page at 6311, where the status of this briefing paper is set out in the sense that it is a publication of the House of Commons library research service, which provides MPs and their staff with impartial briefing and evidence, based -- they need to do their work in scrutinising Government, proposing legislation and supporting constituents.

    Now, we relied on this briefing paper in the divisional court to evidence the historical fact that during the passage of the bill which became the 2015 Act, parliamentarians were informed that under the form of the bill, the result of the referendum would be advisory only. Which was consistent in our submission, which was the law as it then stood or the law as it was then understood by those who were going to consider this legislation. When the referendum is referred to as advisory only, what that means is that it was not legally binding.

    The distinction sought to be drawn by my learned friend Mr Eadie about whether it was advisory for the Government or advisory for Parliament is not to the point, because the only point for this court, in our respectful submission, is whether the result of the referendum has any legal effect. In our submission it has no legal effect, consistent with the history, with the wording of the Act, and the law as it was understood at the time.

  • What was the wording of the previous, the 2011 -- whichever date it was.

  • There was the 1975 Referendum Act but as I say, the wording is materially identical to the 2015.

  • But is there any wording which made any of these compulsory, if you like?

  • My Lord, yes, there is the AV referendum. That was the 2011, forgive me.

  • But there was no question of a prerogative, that was simply being done as a matter of domestic law, and so in a way, the question of prerogative under foreign powers, whether that exists is a separate question which didn't arise under the AV referendum.

  • No, but what one is looking at is the question of where power lies.

  • I understand your point but I am saying that is not a direct parallel.

  • My Lord, I fully take that point. All I would submit is that there are two types of referendum and this was the first type and therefore Parliament did not surrender its sovereignty to its people --

  • What was the relevant provision in the AV referendum? Do we have that?

  • We do have that and the relevant provision --

  • If you just give me the reference.

  • Yes, we will get that for you, my Lord, certainly.

  • Perhaps while that is going on, can I ask you a more general point which is one that has been troubling me, and it arises out of what Lord Reed was saying, whether really the question we are dealing with is not so much a question of parliamentary sovereignty, which everyone accepts, but whether we as a court can tell Parliament how to exercise that sovereignty. Imagine this situation, assume after the referendum vote the Government said: we think we should regard this as Brexit means Brexit, but we want to make sure that Parliament is with us on that, so we will put a motion before Parliament, rather as they did back in 1972; saying: we want your approval, Parliament, to launch Article 50 and we are not going to go ahead with Article 50 unless we get it.

    Now, they would say: of course, we accept that is not legislation, we will need in due course, in two years' time or after our negotiations, to have a repeal bill which will deal with the rights that can be transposed into domestic law, make sure there isn't a black hole of rights which cannot, but that will all be done, but for the moment what we are doing is simply making sure that Parliament is with us.

    Now, as I understand it, you say that would not be good enough. It would be open to us, the court, to say to Parliament: no, no, that motion, even though it has been supported by a large majority (Inaudible) is not good enough, you have to have a one-line bill which makes all the difference. The one-line bill does not solve any of the problems, it doesn't solve any of the problems of what we do about all the detail; but you say that is a magic wand that makes all the difference.

  • My Lord, certainly not an magic wand. There are two stages, first of all the trigger stage and then what is going to happen after the trigger stage. Your Lordship referred to the Great Repeal Bill; that is after the trigger stage. We have to concentrate on the trigger stage itself.

  • Not necessarily, because obviously everyone accepts that there has to be legislation in due course -- as indeed the Great Repeal builds on that. So one cannot simply look at the trigger stage without having regard to what is going to follow from it. So the real question is, can we as a court say to Parliament, the trigger stage, a motion would not be good enough, even a motion supported -- a unanimous motion, that would not be good enough; there has to be this one-line bill that says: yes, you can trigger.

  • My Lord, that is absolutely correct. First of all a resolution would not be sufficient, because what one is looking at is primary legislation on the basis that rights, which are granted in domestic law, are going to be lost. But this court in our submission is the guardian of parliamentary sovereignty.

  • I understand all that, but still you are saying that Parliament over the road has voted in a motion unanimously that we should go ahead; Ms Miller or Mr dos Santos can come to this court and say: stop them, they cannot go ahead, an injunction, until they have got this two-line bill.

  • My Lord, no one is stopping Parliament passing whatever resolutions it wants, and this court is not saying to Parliament --

  • No, it is saying to the executive: you cannot do it.

  • But that is Lord Carnwath's question; what we would say in those circumstances to the executive: even though Parliament has given you a clear pass through a motion of both Houses, you still have to go back to Parliament and pass the statute.

  • My Lord, yes, that is absolutely correct.

  • That is the case. I understand it and so be it.

  • That is one way of casting it but surely your argument is that it is for this court to decide whether or not the 1972 Act can be set at nought, as Lord Pannick has put it, by the exercise of the prerogative. If we decide that is the position, it is then up to Parliament and indeed the executive to decide what to do. We are not issuing an edict to Parliament or to the executive that you must do this or you must do that; we are simply saying what the law is.

  • My Lord, that is precisely right, and obviously the divisional court was very careful to ensure that there was no encroachment on any -- Privy Council(?) and the like -- so everyone is being very careful to ensure that Parliament is not being dictated to or the executive is not being dictated to.

  • I understand that. It sounds very fine to a lawyer who understands the difference, but to the average person in the street, it seems a bit odd if one says to the Government: you have to go back to Parliament and have an act of Parliament passed to show who Parliament's will is; when you have already been to Parliament and had a motion before both Houses which approves the service of the notice. That is really Lord Carnwath's point, and it does seem a bit odd, doesn't it?

  • My Lord, it may seem odd to the man on the Clapham omnibus, if I put it that way, but for lawyers, that is the correct result, for constitutionalists, that is the --

  • It is a vital distinction, isn't it? More than for the lawyers, if both Houses of Parliament were to pass a resolution inviting the executive no longer to have any regard to the 1972 Act, that would be totally ineffective --

  • My Lord, yes, it would.

  • The reason is that resolutions do not change the law whereas statutes do. It is completely fundamental.

  • I understand that from a legal point of view, but to say that this is all in the name of parliamentary sovereignty does seem a little odd. It seems to me a vitally important legal point, but it is not about parliamentary sovereignty.

  • It is about the rule of law.

  • It is about what Parliament is, and I don't think that either Professor Dicey or Professor Hart would have been very surprised to find our rule of recognition defined in the way you are defining it.

  • Your point is that Parliament speaks to the people, and in particular to the courts, ultimately through statute.

  • That is absolutely right, my Lord, yes, they do.

  • Resolutions are political acts, whereas legislation is directly affects the law.

  • Life has moved on since the time of Dicey. The referendum result is the people speaking to the political institutions, it is giving them an instruction. That is one way of looking at it.

  • If that is so, then the question, if that is the right way of looking at the 2015 Act, that it has provided a mechanism enabling effectively the people to give an instruction to politicians, that they want to leave the EU, then the law then has to work out what the constitutional implications of that are. Falling back on Dicey is not going to help because Dicey didn't have to address that kind of situation.

  • Yes. My Lord, this court's task as part of this appeal is to decide whether or not the instruction which your Lordship refers to is binding or not. In our submission it is not binding because the Act is very clear, the 2015 Act is very clear, and on that point, the ministerial statements which are relied on by the appellant, we would say are not admissible because under Pepper v Hart principles, they would only be admissible if there was any ambiguity in the 2015 Act which in our submission there is not. In any event, these ministerial statements are matters of Government policy and Government policy is not the law.

  • They are not admissible any more than your House of Commons library briefing note.

  • My Lord, my House of Commons library briefing paper, with respect, is admissible, because it falls under the historical facts exception as established in many cases --

  • On that basis you would be looking at everything that was said and done there, and there is an issue as to whether the House of Commons briefing statement, library briefing statement is accurate; as soon as that issue arises we are incapable of dealing with it, it would be contrary to the Bill of Rights to go into it. I think there is a limit here to what we can look at.

  • My Lord, yes, but this does not raise the Bill of Rights issues, it doesn't raise the section 9 issue of the Bill of Rights because it is not technically a publication under a command paper.

  • It is a statement of what somebody thinks. MPs who voted on it may or may not have agreed with it, but that is why it is so unsatisfactory, looking at all this material, particularly when it is a controversial bill which has produced a lot of material, a lot of inconsistent statements and it is a classic reason why Pepper v Hart in some quarters is not very popular, and in remaining quarters is strongly to be kept to its limitations and not to go outside them.

  • Yes, my Lord, the only point I would say is that this is what Parliament was told, there was no debate as far as we know about the form of the bill. It was brought in in that respect, it is in familiar form and in our submission it is clear what the result is.

  • Your short point is this, is it, that it would have been only too easy for the legislature to provide what its effect was if it wanted to tell us. It has not told us, and it is not for the courts to try and guess what the legislature intended, leave it to the legislature to decide what the effect of the referendum is; is that really it?

  • My Lord, yes.

    My Lord, could I just finish up on this point and the court's point about the distinction between, if I may put it this way, political sovereignty and legal sovereignty, because obviously it is important that the people do not feel in our constitution that they have no power. Of course they have power; as Dicey said, their power is a political power to elect members of Parliament and it is members of Parliament who, under our constitution, make the law. So the people are not powerless, they always have the right to get rid of their members of Parliament if they want to.

  • His point was wider than that; they also have a power to bring pressure on their members of Parliament, so that politically they feel an obligation to act in a particular way which need not necessarily coincide with their personal opinions.

  • My Lord, that is absolutely correct, yes. That is one of the ways of expressing people's power.

    So my Lords, conscious of the time, our submission, my stage three, is that there is no parliamentary authorisation for this loss of rights, whether it is under the 2015 Act, or any other legislation which has been passed by Parliament, and in the absence of that authorisation, in our submission, the appeal should be dismissed because each of my stages one, two and three lead to that conclusion.

    Unless there are any further questions --

  • Thank you very much. Thank you, Mr Chambers.

  • My Lord, Lord Clarke wanted the reference to the AV referendum Act. It is volume 13, tab 136, electronic 4611 and it is section 8 of the Act which is at 4612.

  • Thank you very much. Mr Scoffield.