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

  • I am most grateful, my Lord. My Lady, my Lords. I appear as an intervener, on behalf of the Expat Interveners who are distinctly affected by the removal or the prospect of removal of the rights that will be lost as a result of the triggering of Article 50, rights which Parliament is not able to replicate for them beyond these shores.

    In the time I have available, I shall not trespass upon the submissions already made and gratefully adopt those of my learned friends Lord Pannick, Mr Chambers and Ms Mountfield and Mr Gill, and I am rather hoping, my Lords, my Lady, that those submissions that I do not manage to develop fully may develop rather better in the minds of the court than perhaps if I develop them myself.

    Briefly the key issue on which I wish to focus is the anterior question identified by Lord Kerr and mentioned indeed by Lord Sumption on the first day, as to whether there was ever any relevant prerogative; and to answer that question by relying, of course, on the principles advanced by Mr Chambers and Lord Pannick and my learned friends, but also specifically by reference to a facet of the 1972 Act upon which attention has not yet fully focused, and that is the conferral of legislative power on the EU institutions. Because of course it is right that the 1972 Act invested rights or conferred rights on individuals and obligations and so forth domestically; but it is also true, and, we respectfully submit, vitally important to a proper understanding of whether there was a prerogative at all; and a proper understanding of the legislation that follows which I will come to, to identify structurally and constitutionally what was happening in 1972 when the legislative competence was conferred on the EU institutions.

    In summary our submissions are these.

    First of all, Parliament gave its consent to EU institutions with the participation of representatives of member states in accordance with the provisions of the treaties listed in the 1972 Act. It gave its consent to the making of law which would have direct effect, not in the technical term but in the real term, within the United Kingdom.

    It gave statutory authorisation to the Government of the day to participate in that process. Indeed it went further; it gave statutory authorisation to representatives of governments of other countries potentially to outvote the United Kingdom and legislate.

    It is through the prism of that analysis that we respectfully make one short but, we say, important submission, and that is that the upward-facing facet, if I can call it that, of conferring legislative competence on the EU institutions, reflected a fundamental constitutional change.

    It can be summarised thus: the legislative power which Parliament was conferring on the EU institutions was, prior to the Act, only Parliament's to confer, because it was only Parliament's to exercise. We respectfully say that, because it was only Parliament's to exercise and only Parliament's to confer upon those institutions, it is only Parliament's to take back. We respectfully say that that analysis is dispositive of the appeal and we respectfully invite the court so to find.

    That analysis is also important when one comes to consider the subsequent legislation which your Lordships and my Lady have already heard submissions on, namely the 2008 and 2011 acts, because those acts, properly understood through the prism of conferral of legislative competence and the voluntary limitation of sovereignty of the United Kingdom in that respect, those acts are in fact, to my Lord, Lord Carnwath's points, in pari materia in the sense that, together with this aspect of the 1972 Act, the conferral of legislative competence, those acts regulate the legislative competence so conferred.

    My Lords, it is quite important to distinguish between different aspects of that legislative competence and we respectfully say that the appellant starts in the wrong position. Because the acts, because the 1972 Act, specifically lists the treaties to which effect is given in section 1(2), and because primary legislation therefore needs to be amended to add a new treaty to that list, from the very beginning, Parliament had control over whether any additional treaties could be included in the scheme which it created through the 1972 Act.

    What is salient about the 2008 and 2011 acts is that Parliament then seeks to control not the addition of treaties but the way in which the legislative mechanisms which it has itself authorised, operate internally within the European Union institutions; and through that prism a picture immediately emerges which we say, with respect to the appellant, is not just inconsistent but irreconcilable with the appellant's overarching case.

    The reason for that is this: that we see a picture in the 2008 Act and the 2011 Act, of increasing control where the legislative facility internal to the EU institutions is increased. Therefore Parliament is seeking to control that which might only otherwise have happened by the addition of a new treaty by primary legislation in section 1.

    That analysis is quite important because if I can use possibly slightly evocative phrases, the section 1 listing of the treaties, and I respectfully adopt my learned friend Ms Mountfield's submission on this, the words "time to time" that we find in section 2, refers to time to time, the rights derive from the treaties which Parliament has listed in the 1972 act. Section 1 operates as, if I may say so, the castle walls, so that no new treaty may be admitted other than with the assent of Parliament.

    Then what the 2008 and 2011 acts are seeking to control is the operation of, without any disrespect to the EU institutions, what some people might view as the Trojan horse provisions, which are quite different in nature. They are provisions where internally treaty changes and competences may be taken by the Community effectively for itself. The procedures are varied, but that is the essence of what those two acts were directed to achieve.

    My Lords, it is significant that the ordinary revision procedure which is one of the procedures to which those acts relate, specifically contemplates the increase or reduction of competences which your Lordships will find at page MS 222, core authorities at the very front.

    I think those provisions are actually in there because of Article 50 being rather important in this case, but we helpfully have Article 48 beginning at 221 and at the top of 222 --

  • Which statute are you referring to?

  • I am so sorry, my Lord, this the treaty of the European Union. It is the very first tab in core authorities volume 1; at the very top it has the number 8 on it.

  • At the top of page 222, the court will see there the provision made by Article 48 for the ordinary revision procedure, a procedure which is not just increasing but also reducing the competences conferred on the union in the treaties.

  • The ordinary revision procedure was not new with Lisbon.

  • That was the old tradition of inter-governmental conferences and the new treaty. It is the simplified revision procedure that is new.

  • My Lord, yes and the point I am seeking to make is not the novelty of the ordinary procedure, but the increasing parliamentary control over participation in the legislative processes of the Union in relation to the use of these various procedures.

    So that the underlying submission is simply this, that not only do we respectfully say that the constitutional architecture of the conferral of legislative power that belongs to Parliament upon the EU institutions, not only do we say that that conferral is a very important facet to add to my Lord, Lord Kerr's observation about the point being advanced by Lord Pannick, that investing rights on individuals might be an anterior point by which there could be said to be no relevant prerogative; we say the conferral point puts that almost even more strongly because it was only ever Parliament's power to exercise, only ever Parliament's power to confer and only ever Parliament's power to take back.

    But we then go further and say that the direction of travel of the 2008 and 2011 acts, which insofar as they regulate the legislative power of -- the exercise of the legislative power conferred, those acts themselves are swimming in a different direction to that contended for by the appellant.

    My Lords, my Lady, we also respectfully say, and I adopt my learned friend Ms Mountfield's submission, that there was a consistent understanding, insofar as one can be discerned, from the courts that it would be Parliament that would decide whether to leave the European Union, as it has now become. In that respect we rely on Blackburn which predates the 1972 Act, because it is in 1971, all the way through to Shindler which postdates the 2015 Referendum Act.

    The court will already have identified the materials to which my learned friends Lord Pannick and Mr Chambers have already referred in terms of the green paper and the command paper.

    So there was a consistent understanding in the background that it would be Parliament that would leave the European Union. So as to my Lord, Lord Mance's questions as to whether the 1972 Act was neutral or perhaps agnostic as to the United Kingdom joining the European Union, as it has now become -- the European Community as it was then -- the answer, when viewed through the prism of the conferral of legislative power of Parliament, can only be: no, it was not neutral, at all.

    The conferral of the sovereign legislative power of Parliament on the EU institutions speaks only to the Act being consistent and only consistent with the United Kingdom joining the European Community.

    My Lords, as to the 2015 Act and its significance, my Lady, Lady Hale has already identified, of course, that the Referendum Act did have legal consequences in that a referendum was held and the political significance of that has already been identified. But we would respectfully say that at the moment that Parliament exercises the legislative choices which we say properly belong to Parliament as to the consequence of the referendum, Parliament might do that a number of different ways. Parliament might mandate the Government to trigger Article 50, or it might grant a power to the Government to trigger Article 50.

    If it were to grant a power, and I think this maybe speaks to the analysis that my Lords, Lord Reed and Lord Carnwath were canvassing, if it were to grant the Government a power, there is no doubt whatsoever that the referendum undertaken under the 2015 Act would be of very considerable significance in the exercise of the Government's power and the lawfulness of the exercise of that power in deciding, if it did, to notify under Article 50.

    But that is a very different matter to the question which is before this court, which is whether or not there is a prerogative power for the Government to notify under Article 50, and that is not the question asked by the 2015 referendum, and it is not the question upon which the people have spoken.

    The question before this court is a legal question, and we respectfully say that because of the nature of the 1972 Act in doing everything that has already been described in the field of rights, which are extremely important, but also conferring legislative power on the European Union institutions as it did, for those reasons, the only answer to the question of whether there was any relevant prerogative in 1972 can be that there was none.

    This point was squarely before the divisional court, and the sheet of references refers to the relevant part in core volume tab 8 where that point was taken.

    We respectfully invite this court to understand the divisional court's treatment of its general appraisal of the normal rules that apply when the Government acts on the international treaty plane, in the exercise of the prerogative powers, as setting the background from which it then clearly distinguished this case, for the reasons that my learned friend and I have hopefully satisfactorily identified as completely distinct. My Lords --

  • What was the role of the 2008 Act in all this?

  • My Lord, the 2008 Act brought in, your Lordships will see it in core volume 1 at tab 4, and your Lordship, this goes to the Trojan horse point, if I can put it in those terms, at page 119, at section 5, "Amendment of founding treaties":

    "A treaty which satisfies the following conditions may not be ratified unless approved by act of Parliament. Condition one is that the treaty amends ... [it lists the treaties its] condition two is that the treaty results from the application of article 48(2) to (5) of the treaty on European Union."

  • The Trojan horse provision is section 6, not section 5. Section 5 describes what had always happened when a treaty was amended and replaced by a new one.

  • My Lord, I was just coming to section 6. Your Lordship is quite right, that the act or control of participation in the process is found in section 6, which refers specifically to the simplified revision procedure at paragraph A and paragraph B, article 48(7) of the treaty where the voting basis for the procedures can be changed.

  • Why was section 5 necessary?

  • Well, my Lords, I think the answer to that is to put beyond doubt any situation in which a -- to be simply consistent with the provisions in the 1972 Act whereby the Parliament required any new treaty to be approved by an Act of Parliament, and on that same footing, carrying that through into the 2008 act, it would equally require treaties where they amended those treaties to be approved by an Act of Parliament, so my Lord, Lord Sumption is right.

  • That would have been the effect, wouldn't it, of the 1972 Act anyway, because unless the 1972 Act was amended by legislation, the new treaty wouldn't be one of the treaties for the purposes of the 1972 Act.

  • My Lord, indeed that is right. So we respectfully say that the -- it is effectively codifying going forward in a picture of increasing control.

  • But it sort of clarifies section 2.

  • It effectively clarifies it for the amendment purpose rather than the mere listing.

  • I assume what they were concerned about is that if they only regulated the Trojan horse provisions in section 6, somebody might submit that by implication they had decided that treaties, new treaties didn't need it.

  • My Lord I think it appears to be an attempt to codify both together for that reason.

  • Section 5 is dealing with the ordinary revision procedure, because it refers in section 5(3) to article 48, subparagraphs (2) to (5); that was the ordinary revision procedure.

  • Was the ordinary revision procedure in the previous treaties?

  • My Lord, effectively it inherited -- it was originally, I think, either the cooperation procedure or the -- I think it was originally called the cooperation procedure and that developed and became the ordinary procedure.

  • I mean, the ordinary revision procedure may have been seen as a further type of Trojan horse, especially, I don't know if one compared the provisions of the previous procedure with this; this might be of a different nature or it may be that -- anyway, it would be interesting to chase that back a little, just to see why, but you can't do it now, probably.

  • My Lord, no. If it would be helpful for us to do a quick diagrammatic note --

  • It would be interesting to see why they suddenly focused on this procedure if it simply replicated the previous one.

  • I think the answer may be the codification point that Lord Sumption identified, which is if you purport to start fine-tuning controls in one respect, you do not want it to be said that you have implicitly permitted other variations which are not so Trojan, rather more fundamental.

  • Indeed, exactly what is being said in relation to Article 50, you are codifying these things but then (Inaudible) Article 50, therefore you don't want to control that?

  • The argument you are putting is indeed the argument that has been put in relation to Article 50, because it is said, rightly or wrongly, that this Act clearly indicated the things that they wanted to control but they didn't indicate an intention to control Article 50. Arguably it is much more fundamental.

  • My Lord, yes, but if one starts from the position that there has always been a prerogative to get rid of domestic rights and to take back legislative competence that Parliament has conferred on another institution, if you start from that premise, which we respectfully say is utterly unrealistic, then you do get to that point, but we respectfully start from a different premise, that there has never been such a prerogative power.

  • That has been what we have been talking about for the last three days.

  • My Lord, that is in a sense why I respectfully focus on the 1972 Act and its significance, in terms of constitutional structural change, what that Act effected.

  • My Lords, there were many other things to say. I simply mention in passing the final point on the 2011 Act which is section 18, which insofar as it assists, suggests at least that the basis for the rights to remain effective in domestic law was the 1972 Act itself; and we respectfully say it is striking it doesn't say: so long as the treaties shall remain in force on the international plane; or wording to the contrary.

    So we respectfully say that there is an utterly consistent picture from Blackburn through the parliamentary materials that my learned friends have identified, all the way through to Shindler, and with section 18 appearing in 2011, that the premise of the statutory scheme is that only Parliament may authorise notification under Article 50.

    My Lords, my Lady, unless I can help the court further, those are our submissions.

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

    I get the impression, Advocate General, that you go first, is that right?