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

  • My Lords, my Lady, really the final lap this time. You have had what I am sure we all hope are useful submissions from all the parties in these appeals, including, it might be thought, particularly useful submissions from Mr Gordon this morning on child rearing, distinguished, it might be thought, by their overstatement of parental power, but I will be short as I possibly can.

    Can I start with the basic case, and it is as well, we submit, to be clear about the nature of the issue and what it is that our case does and does not assert or entail.

    We do not assert, and our case does not entail, a power to repeal or amend or in any other way to alter the Dangerous Dogs Act. By the Dangerous Dogs Act, I mean any act equivalent to the Dangerous Dogs Act. We do not assert a general power to alter the law of the land or to alter common law rights by exercise of the prerogative.

    We do assert a specific power to notify under Article 50(2), and so to start the process of withdrawal, notwithstanding that that will result in changes to domestic law, which was introduced to implement those treaties.

    It is plain, we submit, that Parliament can intervene -- I use the word "intervene" deliberately because that was the word used in the JH Rayner case by Lord Oliver -- in a particular context to set up domestic law, and to cater for its alteration as it sees fit, and no one denies its authority, its sovereignty, if you will, to do that.

    It can do that by express provision, of course. Its legislation and the techniques it uses, are, it is trite, to be considered in their proper constitutional context, including, we submit, a clear understanding that under our constitution, there are other sources of power. Other organs of the state that share the responsibility of Government. That is why it is often highly significant to consider what powers Parliament in its legislation has left in place under that regime, under that constitution.

    What that introductory section leads to and what it indicates, we submit, is that the true question in this case is as to the nature of the parliamentary intervention that there has in fact been in this case. By this case, I mean our own very particular and very special legislative context.

    What does that parliamentary scheme, properly viewed and considered, tell the court about the single issue at the heart of this appeal? Namely, has Parliament decided that prerogative power cannot be used to give Article 50 notice, or has Parliament decided that it can be used to give Article 50 notice?

  • Or has Parliament decided neither of those things, but left it to the ordinary law governing the exercise of the royal prerogative.

  • My Lord, that is why I started precisely where I did, because in my submission, once you recognise that there are different sources of power and that Parliament can intervene in that way, and we are not making the submission that has been attributed to us, that is precisely why I set up the question in the manner that I did, making it in effect a question about what Parliament has decided to do.

    Now, if Parliament has decided, and I am going to take you back to some of the legislation, to set up an intricate regime in a variety of different ways, it might be thought to be tolerably surprising if the answer to this appeal is the one that my Lord poses, which is in effect the a priori point that has been taken against me again this morning, in the light of the interventions that my Lord has made in the course of this appeal.

  • But my Lord's point to you surely is that underpinning your argument is that Parliament must have decided one way or the other.

  • My Lord, Parliament does not have to decide. The question for the court is whether it has in fact done so, having regard to the nature of the legislative regime which is in place in the particular context.

  • What if it has not decided? What then?

  • My Lord, if it has not decided, then you are thrown back on to the nature of the prerogative power, of course.

  • Do you accept that if Parliament has not decided one way or the other what the answer to that question is, then having regard to the way you introduced your submissions, you lose?

  • My Lord, if Parliament has not intervened in any way --

  • If Parliament has not decided implicitly or expressly whether an Article 50 notice can be given by ministerial authority, one way or the other, do you accept that that means you lose?

  • If you ignore all the EU legislation, if you ignore CRAG, if you ignore all the rest of the legislative regime, we do not assert a power to amend the Dangerous Dogs Act.

  • By the Dangerous Dogs Act, I take it you mean the European Communities Act.

  • No -- because that drags back in the very legislation that your question sought to exclude.

  • I think what is being put to you, which you may say is a non-question, is if, when we look at the Act, we come to the conclusion that Parliament has not decided to exclude the royal prerogative or has decided to let it continue or apply, we cannot decide which, or Parliament has not gone either way, then what? Or do you say we have to interpret the Act one way or the other?

  • You say it is a non-question.

  • Yes, that is the legislation that governs.

  • We are looking for hypothetical intention effectively, aren't we.

  • I just want to ask one point, because I came across actually a textbook on European law written by the current President of the court and I notice actually in relation to the treaties before the treaty of Lisbon that he asserts, bluntly, that under European law there was no right of withdrawal before Article 50 was introduced.

    Now, of course, from our parliamentary, in our parliamentary system, we would say that you can always repeal the 1972 Act, but it just puts a slightly different complexion, if that was the attitude, on the position, the background to the 1972 Act, if it was recognised at that stage that -- I don't know whether it was, or whether --

  • I think my answer to that is that that would open up an area which was controversial before the divisional court, which I don't much want to get back into --

  • On what basis is it common ground here that there could be withdrawal?

  • The divisional court put it ultimately -- we put in a note on the Vienna convention on the law of treaties and how that might work and whether we could leave unilaterally. I think the way they left it was rather compromised by saying -- I put it wrongly. The way they left it in their judgment, I think, was a compromise solution, as it were, which was to acknowledge that we could have left at the very least by consent, and then have moved on, and therefore withdrawal was in the minds of those --

  • It is a bit difficult to say withdrawal was in the minds -- if it could only be done by consent at that stage, I would have thought it was the last thing that was in your mind when you were getting married.

  • I am not going anywhere near that one.

    I sincerely hope Mrs Eadie is not watching.

    My Lord, I think that is the way the divisional court left it. It is a controversial issue, no doubt, as to whether or not withdrawal could have happened in another way.

  • In fact, Professor Lenaerts, or President Lenaerts, does consider the Vienna convention and he discounts it. He says it wouldn't -- but anyway I've got your position, you say at least by consent.

  • At least by consent. If there needed to be a submission, our submission on the Vienna convention was that we could have done it unilaterally, and indeed Parliament was certainly contemplating it, it might be thought. That they were is illustrated by the fact that three years later, they were worrying about a referendum to come out.

  • That is presumably under a different change of government.

  • It may be under a different change of government --

  • Anyway, it proceeded before the divisional court, and nobody is challenging it here, that the United Kingdom could have got out, albeit by agreement with the then other members of the Community.

  • That was the way the divisional court left it, and the controversial issue is could we have done it another way.

  • Then you come back, in answer to Lord Sumption's point, you have to take the Act as you find it and come to a conclusion one way or the other.

  • Exactly so, and you take the scheme of legislation. It is going to be very important how you approach the scheme of legislation, and I am going to come to that, but for the moment, and just on the basic approach, our submission is that Parliament can control Government's prerogative powers, it can decide what domestic legal effects should be attached to the exercise of those powers. Those two things are different and distinct.

    In relation to the latter, in other words what legal effects should be attached to the exercise of the powers, and that that is for Parliament, it is evident, we submit, and no one has really quibbled with this, that parliamentary intervention, Lord Oliver's word again, can create the situation in which serious domestic legal impacts, to put it neutrally, flow from Government acts on the international plane; and that those serious impacts, flowing back into domestic law as a result of Government action on the international plane, do not need, they never have, parliamentary intervention again, prior to them doing that.

    So one can take examples which you are well familiar with now, you can take the Post Office v Estuary Radio case, the territorial waters was left by Parliament if you want to analyse it that way, in the hands of the Government. When those are extended, without prior parliamentary intervention, the nature and the scope of the criminal offence to which that Act gave rise, so a pretty extreme example, expanded.

    You can take the Lord Haw-Haw example that Lord Millett gave in his article, and Lord Wilson put to me when I was opening the appeal, that isn't that different because the prosecution in that case was under the Treason Act.

    True, of course, that is exactly the way the prosecution would have happened, but if Lord Haw-Haw had been broadcasting in 1938 a series of broadcasts that were adulatory of Adolf Hitler, he would have committed no treason and no criminal offence.

    The reason his offence was committed was because in 1939 Her Majesty's Government had declared war on Germany, a state of war. You may say that that is an international fact, that was the point that was put to me by Lord Sumption, but we respectfully submit that that is a difference and not a distinction, so far as this is concerned, this aspect of the matter is concerned. In the Haw-Haw case, in the Post Office v Estuary Radio case, of course it created a different state of legal facts on the international plane, if you will, but those different international legal facts only were created and only arose because of the exercise of Government prerogative power on the international plane.

  • I think what is said is that the prerogative can certainly bring individuals into or out of laws that have been made, and that is said to be quite different from this proposed situation.

  • My respectful submission is it is not so very different.

  • I wonder, I mean the real point being made, I think, is this, that it is very simple. There is a common law rule that the Crown cannot, under the prerogative, alter the law of the land. EU law is the law of the land; therefore the prerogative cannot be used to alter the effect of EU law in the United Kingdom. That is the synergism.

    As I understand it, your analogy with the Dangerous Dogs Act is designed to illustrate that EU law is not the law of the land in the same sense as the Dangerous Dogs Act is. You cannot under the prerogative alter the Dangerous Dogs Act; you can, you say, alter EU law precisely because it is not part of the law of the land in that sense.

  • Precisely because it is not the law of the land in that sense; that is in truth coming close to the Finniss/Millett analysis, if I can put it that way without disrespect in adding titles, but also to illustrate a basic truth, which is that Parliament has intervened. And so you have the mechanism set up in the 1972 Act, you have the various forms of legislative control, so it goes to both of those things.

    The reason that I introduced the Dangerous Dogs Act and my learned friend Lord Pannick introduced the Dangerous Dogs Act into the debate was to draw the distinction between parliamentary intervention, as it were, which creates a situation under which international acts by Government in the exercise of prerogative powers flow back into domestic law, and the Dangerous Dogs Act which has nothing of that form of parliamentary intervention about it.

  • But if, for example, there were an EU regulation called the dangerous dogs regulation, you would say that could be deprived of effect in the UK by exercising the prerogative, because it is not part of UK law, it is -- what is part of UK law, as I understand your argument, is the 1972 Act, and that gives effect to the EU law within the UK.

  • My Lord, exactly so, exactly so. That is the nature of the argument, for good or ill. That is the nature of it.

  • Whereas the position would be different if it was the dangerous dogs directive.

  • It would. It would. It would be different if it was a purely domestic Dangerous Dogs Act, so I should have clarified that by Act, I meant domestic legislation rather than Act on the EU level; if it is dangerous dogs regulation it flows back in through 2(1) and it becomes directly effective. My Lord, Lord Sumption is of course right, if it is the dangerous dogs directive, it requires free-standing secondary legislation no doubt enacted using section 2(2) of the 1972 Act.

    But those are fundamental constitutional distinctions, and what they illustrate is that there is a different species and form of parliamentary intervention in each of those situations. What that also illustrates, we respectfully submit, is the basic proposition that all depends on the nature of the parliamentary intervention that there has been. If one wants to break that down a little more in our foreign affairs context, in the sphere of foreign affairs, that requires consideration of two separate things, to do with the nature of parliamentary intervention.

    (a), has Parliament intervened to control the exercise of the prerogative power itself, on the international plane, and (b) what is the nature of the parliamentary intervention in relation to the effects that the exercise of prerogative power on the international plane might have, in domestic law.

  • Can I just go back, behind regulations and directives, because that is the result of the European law, but the basic point which was surely decided by the 1972 Act was that Parliament was prepared to entrust legislation to a different order of institution, and that required a parliamentary choice, didn't it? It is slightly odd, isn't it, to think that that could be undone by an executive decision; Parliament has introduced a new source of law-making.

  • My Lord, that is, as it were, a question that can only be answered by properly looking at both of the aspects that I have just identified and tracing it through the legislative scheme as a whole. I mean, you know my basic submission on the 1972 act not to jump too far ahead, but you know the basic submission that I make about that, which was it was all to do with transposition. It didn't give us, as it were, permission to ratify, it didn't seek to control the exercise --

  • It was a radical thing for Parliament to do to effectively -- you can use the word delegate or assign or confer -- legislative authority on different bodies, it was a submission we heard earlier today and it is -- it required a parliamentary choice, it required a parliamentary decision; and it is a point I am putting, that it is a bit odd to think that that could be undone by an executive decision?

  • My respectful submission in answer to that, and I will come to the scheme of the 1972 Act in due course, but my respectful submission in answer to that is that that depends on what the 1972 Act was doing --

  • You say it is all embraced within your submissions about the 1972 Act being a simple conduit which can be cut off.

  • A simple conduit and not controlling the exercise of prerogative power on the international plane, and so not surprising in that way that it left that other side of things to Government. But to come directly to the point my learned friend Mr Green was making, which I think was the one my Lord was putting to me, which you heard today about it conferring legislative authority on other international institutions, with the greatest of respect, that is not on any view what the 1972 Act could possibly have been doing. Parliament has never purported to legislate, to confer legislative competence in that sense on other sovereign states or other institutions.

    What it does is to set up a scheme in the 1972 Act under which actions by the United Kingdom Government and other sovereign states on the international plane may create effects flowing back into domestic law. It is not purporting to authorise in a legislative sense another sovereign state to act in any way, shape or form, still less an international institution such as the EU. It is dealing with the consequences of the exercise of power by the UK Government, and that is the limit of its competence legislatively, by the UK Government on the international plane.

    Now the fact that that involves them liaising with, dealing with, negotiating with, making agreements with, cooperating in a legislative process within the EU, is neither here nor there. It doesn't alter the basic characterisation.

  • Are you saying then that the relevant source of law remains statute? Namely the 1972 Act.

  • In relation to the effects in domestic law, yes.

  • And that is confirmed by section 18 of the 2011 Act?

  • That is why I thought -- no one else seems to be interested in Youssef, but that case is a very good example, the proceedings of the UN committee, which -- there is no question of us authorising the UN committee to do anything, it is just that once it has effect, it then comes into UK law via --

  • Via EU law and the regulation.

  • -- and the Act, so it is a really good example of that process going on.

  • Exactly so, my Lord, and lest it be thought we were not interested in Youssef, we are for that very reason.

  • Thank you very much.

  • I am grateful.

    What this analysis also illustrates is the staggeringly obvious constitutional truism which is that context is everything, so it is no good turning up with The Parlement Belge or Walker v Baird and burning down lobster factories in Canada; what you actually have to do is to look at the legislative scheme that is before you and work out what the nature of parliamentary intervention in the particular sphere, in the particular context, has been.

    What you cannot do is to derive a big, broad proposition which is uncontroversial, that says, as a general proposition, the Government can by prerogative alter the law or create a new source of law, I will come back to that, but -- and then say: and that solves the problem in this case; it plainly doesn't. The question is what has Parliament done, what has the parliamentary intervention created.

    Of course the reason that I am passionately concerned about the suggestion that there is an a priori answer to this case of that kind is because the consequences for Government and for the pursuit of foreign affairs by Government, of the discovery by the courts of a principle that effectively says that the prerogative power to conduct our foreign affairs cannot be exercised if it would, might, potential, has the potential to affect domestic law; what is the difference between affect domestic law and alter the law of the land; if that is the principle, uncertain in its scope as that description I hope has indicated, then that does have very, very serious consequences.

  • But the argument is that if it arises where rights are given by act of Parliament, you have left that qualification out of your formulation.

  • There are two -- I don't want to keep going back and repeating the point, but I respectfully submit there are two separate things: have they controlled the exercise of power on the prerogative plane, can you do that; and the second thing is what has the parliamentary intervention told you about the nature and consequences and effects of any such exercise. Of course I accept I've got to confront that; that is why I started where I did with the Dangerous Dogs Act and the exploration of the issues surrounding it.

  • The argument is really put rather simply. Parliament has given the citizens of the United Kingdom these rights; they cannot be taken away, other than by act of Parliament. Now, do you accept the first of those propositions and if not, why not?

  • My Lord, no. My submission, as you know, and I am not going to go back over the all the points I made in opening but my submission, as you know, is that this is a particularly special type of right; it is contingent, it is inherently limited and it depends on my two-legged stool. It depends, of course, on parliamentary intervention to create the conduit, but as section 2(1) itself positively and expressly asserts and says, these are rights that are created on the international plane. How are they created on the international plane? By the United Kingdom Government exercising its prerogative powers within the EU institutions.

  • Even though they come through the medium of the 1972 legislation, you say that it is possible to argue that they are not given to the citizens of the United Kingdom by Parliament?

  • Well, again, one can put it any which way. They are in the sense that Parliament has intervened to create the conduit. That is a necessary but not sufficient condition for the continued existence of the right.

  • You can call it a conduit or whatever you like, but the ultimate question has to be confronted. Were they or were they not given by Parliament?

  • My Lord, Parliament plainly enacted the 1972 Act and it created the conduit that it did so as to allow -- sorry, my Lord.

  • Not at all, carry on.

  • I have made the point.

  • I thought your answer was: yes, they are rights given by Parliament, but they are rights which were given on a conditional basis, the condition being the continued membership of the EU.

  • So that is the consequence of section 2.

  • Precisely. That is what it says, such rights as in accordance with the treaties are ...

  • From time to time exist.

  • Are to be implemented in the UK.

  • So again, I will come back to the point, but the direct answer to my Lord, Lord Kerr is contingent, inherently limited. Contingent upon two things: one, our participation in the EU processes to create the rights and obligations from time to time, shrinking as that corpus of rights does, or expanding as it does and has done over the years; and secondly and more fundamentally, contingent upon our continued membership of the EEC or what it became, the European Union.

  • That is building quite an edifice on the phrase "from time to time", because "from time to time" in a different connotation could equally mean as the rights are adapted by the treaties.

  • My Lord, it is not only building it on that. It is building it on the nature and the structure of the Act, it is building it on what it was doing by way of transposition and what it was leaving to the royal prerogative to deal with. It goes to all the fundamental points I made about the 1972 act when opening. I don't want to go back over --

  • Sorry, we have probably taken it as far as we can.

  • It is helpful to have the questions.

  • Would it help you if you are right about this, because obviously what comes through your conduit pipe is the question of EU law, but whether the conduit pipe exists is a question of English constitutional law; and you have to show, surely, that a ministerial decision can, to use Lord Mance's words, effectively alter the sources of EU law, in other words alter -- of English law, British law, it has to alter the constitutional question: what are the sources of our law; and not just the question: what rights happen to exist?

  • I respectfully submit, I have to show that the nature of the parliamentary intervention that there has been in this context, from 1972 onwards, allows the Government to continue to exercise its prerogative powers on the international plane, and I have to show that the nature of that parliamentary involvement can and does, as it were, with Parliament's permission, create effects into domestic law.

    I say that is not a question of analysing it as though there were some freestanding constitutional principle which provided the answer. I say that the correct approach to answering that question is not to ignore the entire legislative scheme and come at it on the basis that there is an a priori constitutional principle in play.

    The reason that the constitutional principle is advanced in the way it is by my learned friend Lord Pannick and others is because, when they get to the statutory scheme, the argument becomes extremely difficult for them. For reasons I will develop, they have a great deal of difficulty explaining away what on earth Parliament thought it was doing if they are right in the 2008, the 2011 and now the 2015 Act.

    So what they do is to say: you don't need to go anywhere near that, you don't go near De Keyser, you don't go near the legislative scheme that Parliament has seen fit to enact; and the solution to this case involves standing back, sweeping all that away and just saying: there is the constitutional principle.

    So we fundamentally do not accept that way of approaching the case. We say that the right way of approaching it is to look at the legislative scheme in its entirety and to ask what that scheme tells you about Parliament's intention on the base question that I identified at the outset.

  • What you say ultimately, I think, is that the statute creates the conduit pipe, but Parliament effectively, by the way it has designed the Act, is to say: we have control of the conduit pipe, but the Government has control of what goes through the conduit pipe.

  • So if the Government pulls out of the treaty, the conduit pipe stays there, the statute stays there, but nothing comes through.

  • It is the empty vessel argument.

  • That is how we read it.

  • That is how you do it, on the 1972 Act?

  • The reason I have started here, I have to go a bit, but the reason I have started here is because I am aware, I am well aware that the point has been made on a number of occasions by Lord Sumption, with the usual conviction and convincing nature of it, but with the reason I started there is because there is quite a fundamental question about basic approach, and about precisely how the court should go about analysing the basic question that I identified at the outset. We do respectfully submit that that is right way of doing it.

    Look at the statutory scheme as a whole, don't sweep it away, it is not answered by identifying an uncontroversial, basic constitutional question. The true question is what does Parliament intend looking at that scheme, and can I move to the nature of the approach.

    If that is, if you are at that place, and I appreciate that some of you may not be, but if you are, what is the correct way of looking at the legislative scheme, and before you -- if you get to that place, that does not seem to be an unduly controversial issue. We submit that the correct approach to that question is to consider the statutory scheme as a whole (a), and (b) as it exists today.

    That means considering as a scheme CRAG and all the relevant EU legislation as it has developed today, and then you ask: having regard to that scheme, would it be unlawful for Her Majesty's Government to give Article 50 notice? The reason that my learned friends don't much like that is because they would much rather stop the clock in 1972, but the fact of the matter is that they haven't really sought to challenge in any significant way that as the correct approach to the question of: how do you go about considering this legislative scheme?

    I advanced a whole succession of arguments, none of which have been quibbled with by my learned friends or any of them, as to why that was the correct approach in principle in this appeal. Because the question is about the present state of the division of responsibility between our pillars of state, legislative, executive, and indeed judicial, and that demands a current answer and not a historic one. Because it is a constitutional question that is raised by this appeal, and so it is to be answered per Robinson and Lord Bingham in the light of the current state of the constitutional arrangements.

    That is no doubt why the devolved administrations were interested in supporting this approach, because if you freeze the clock in 1972, they don't have their devolved legislation, but we respectfully submit it is correct. It is a constitutional question to be answered in the light of current constitutional circumstances, because it will, we submitted, as you will recall, be wholly artificial to address the question of triggering Article 50 to implement the referendum, without any reference to the very legislation which established the referendum.

    Because it is common ground between us that the valid exercise of prerogative powers is a matter to be considered itself from time to time, and according to the legislation then in force; and in any event, and this is quite a long way down the sequence of arguments, because the 2008 Act, to take but one example, amends the 1972 Act.

    So even if you were on ordinary principles of legislative interpretation, that would be the right answer, and because, although I don't want to spend too long on this, the in pari materia principle applies. Again, I am not going to go back to the cases that my Lord, Lord Mance identified in relation to that. It might be thought that the true principle to be derived from those cases is, it all depends what you mean by materiae(?). But my Lord will have his own views on that, I am sure, not assisted we respectfully submit, by another case which I lost in this court, called JB (Jamaica), which some of you may recall well.

  • I think it has a name now.

  • Has it got a name other than JB (Jamaica)?

  • Yes, I think it is called Jamar Brown.

  • That is helpful.

    But we respectfully submit that paragraph 24 of that doesn't actually advance matters unduly in relation to that.

    Our submission is as a matter of basic approach, you don't freeze the clock at 1972; you look at the statutory scheme as a whole and then you make your mind up.

  • Mr Eadie, there have been brief references over the last few days to our right to vote in European parliamentary elections. Some of us may have thought that in the big scheme of things, perhaps that is rather unimportant, but perhaps it does have an importance, because, correct me if I am wrong, that is securely founded on a conventional domestic statute which you are proposing to repeal or empty of content. If you are saying look at everything, should we briefly look at that too?

  • My Lord, you can briefly look at it, or you can look at it in detail. Our answer will be the same. Our answer is that is of course a freestanding piece of legislation, and it will continue to stay on the books, as it were, after withdrawal and after the two-year period, even if no agreement is reached. So it sits a bit like regulations that are made to implement directives but in primary legislative form.

    Our respectful submission in relation to the 2002 Act is that its fundamental premise is that we continue to be members of the club, so it is of course different in form, but my answer is essentially the same.

    Can I turn briefly to the scheme itself and its relevant components. I have a bit still to get through. I have made my submissions in answer to Mr Green, and whether or not in truth what Parliament was purporting to do in 1972, which is where we start.

    My Lord, I am sorry, I am reminded by Mr Coppel very helpfully that we have dealt with, I think, the question, or certainly that 2002 Act in paragraph 63 of our case. Can I leave that there.

    I have answered Mr Green in relation to the 1972 Act, and of course one can seek to examine and to imply matters into it, both parties are deeply divided and hold deeply divided views about its effects and about the correct implications for the exercise of the prerogative power to withdraw from 1972.

    Of course my learned friend Lord Pannick becomes a bit ambivalent at this point because when he gets to 2015 he insists upon language as a matter of interpretation, but when he goes to 1972, because there is no language dealing with -- jolly good reason -- the exercise of the powers to withdraw or ratify or anything else terms of international plane actions, he is prepared to imply and to look at purpose and effect.

    But, leaving that on one side, you know our basic case in relation to the 1972 Act. We submit that the ECA is legislation which was fundamentally designed to implement -- it's an implementing statute -- to implement UK treaty obligations. It was not seeking to control, it contained no provision seeking to control, the prerogative -- in other words, the action by Government on the international plane. There is nothing of that kind in it. So that is one part of the dual analysis that is of interest.

    What about actions on the international plane? The second part of that, the distinct part, is what about domestic rights, how do they all work? My submission on that is it creates rights, certainly, or recognises rights, more accurately, but of a very special kind, contingent, inherently limited, created and taken away on the international plane, as the corpus of rights expands, and contingent at a more fundamental level on the premise, which is our continued membership of the EU, or of the EEC as it then was, and both my learned friend Ms Mountfield and my learned friend Lord Pannick promised, as it were, to answer that feature of the 1972 Act. Lord Pannick promised to answer Finniss, I think is the way it was put, in response to a question that Lord Hughes asked and Ms Mountfield promised that she would deal with that answer, and neither did so. Neither has explained why it is that that analysis is wrong, the Finniss/Millett analysis, contingent or inherently limited rights.

    The third point we make about the Act is that its character is not changed by the thought that it introduces a new source of law into our domestic system. It is not changed because that doesn't fundamentally change the nature of the best. A new source of law involves simply asking the same question in a slightly different form. Can you alter domestic legal rights and obligations and, if so, how. We do respectfully entirely agree with the point that was made, I think, by Lord Reed, which is to put to Ms Mountfield, and she accepted it -- and it is significant that she accepted it -- if rights can be created under the prerogative, was the question, do you accept that they can be taken away by exercise of the prerogative? To which the answer which was given was yes, and we respectfully submit that that was a correct answer given to that question.

    We do note that it was not, we submit, a constitutional necessity for Parliament to legislate by the ECA as a precondition for ratification, just to focus on that issue which has been addressed and you thought about, I know. True it is that the position was that there were non-binding legislative motions, to put it that way, by the Houses of Parliament that preceded it but it was not a condition of ratification. That is of the essence of the latest Finniss article, which is in our little black bundle, drawing the contrast between the way in which this Act was structured -- it's the long title point -- and the way in which the Bahamas, Barbados and other independence was created. There was nothing in the Act which said you either have a power to or you are required to ratify this treaty. The reason that was done is because it is Governmental practice.

    So we respectfully agree with the statement that my learned friend Mr Chambers took you to from the CRAG consultation paper, MS 5282, paragraph 119, where it was said the Government's 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. That is a perfectly understandable practice but it is not the same as saying that you need prior legislative authority before you can take that step on the international plane and, with respect to Mr Chambers' submissions and Lord Templeman's article, to which he also took you, is entirely consistent with that analysis. So there is no implication here that the Government could not take steps on the international plane to reverse ratification without parliamentary approval.

    We know, linked to this point -- I am not going to go back to the detail of it because you have it in the note -- but we know that in schedule 3 of this very Act, Parliament repealed a series of bits of legislation, including the EFTA Act of 1960. That is precisely an example of the Government withdrawing from a treaty, the EFTA treaty, and it is a far more telling example than my learned friend Lord Pannick was prepared to contemplate. Of course the EFTA convention did not create directly effective rights in the same way as the ECA, but it is an example of the Government giving notice to withdraw from a treaty without the prior consent of Parliament and doing so notwithstanding that leaving EFTA would inevitably bring to an end rights recognised in domestic law in order to comply with EFTA, and then Parliament acting subsequently, as it were, to sort out the domestic legal effects of that Government action on the international plane. So classic dualism in action.

    All of that, withdrawal from EFTA, parliamentary intervention thereafter, repealing the 1960 Act and sorting out the domestic legal consequences, and so on, all of that expressly recognised in the very ECA itself, the very Act that we are talking about, so you have an act which is said by Lord Pannick to create implication on withdrawal giving effect by repealing it as the final stage in a sequence of actions which started with Government withdrawing on the international plane from EFTA, and that we do respectfully submit is telling.

    You have all those submissions on the 1972 Act and I am not going to go back to those. What I wanted to focus on was the later legislation, because we do respectfully submit that that later legislation is absolutely key to the issues that arise here, and I start with the basic point, which is that later legislation, whether it is CRAG or whether it is the EU specific legislation, is constitutional, to use that sense. You cannot characterise the 72 Act as constitutional without including all the other pieces in the stream of legislation governing this issue. If the one is, the others must be too. We respectfully submit that they are.

    So when you are considering issues as to whether you are more like Thoburn or more like HS2, you are truly dealing with understanding how various bits of legislation, all of which can properly be characterised as constitutional, hang together.

    I wanted to focus very briefly on two of the pieces of legislation, 2008 and 2011, and ask what do they indicate about the division of constitutional responsibility in relation to the giving of notice under Article 50. That is our issue, and it is on those pieces of legislation that I wanted to focus.

    On the 2008 Act, if I may, a couple of short points. Firstly, we know that in 2008, by 2008, Parliament is focused directly and explicitly on the controls that are to be imposed on the exercise of prerogative powers of a variety of different kinds. The controls are explicit and the scheme of control is nuanced. That is significant because it indicates precisely what one would expect -- it is not just whether but how Parliament is to be involved in different types of decision that is covered by that legislation. Previously untrammelled.

    Lord Pannick referred to section 6(1)(a) of the 2008 Act and the simplified revision procedure for amending the treaties and sought to dismiss that as indicating merely that Brussels thought that amendment should be easier and Parliament still, in any event, needed to be involved. In fact, for the first time, Parliament had, as it were, power to veto treaty amendments conferred upon itself and of course those amendments are amendments which not only did not involve increases in EU competences, the point that I think Lord Mance put to me on a couple of occasions in opening. It doesn't just go to increasing EU competences. So that is not the sole theme of this legislation. Not only does if not involve increases, but it could not do so. I am not going to take you back to it now, but if you go back to Article 48.6, third paragraph, MS 222, you will see that it positively could not by that process increase EU competence.

    So the true significance of this part of it is that this is but part of a raft of controls specifying the thing to be controlled and the nature of that control, and you will recall that section 2 stands in contrast to other bits of the Act and just says motion, "parliamentary motion".

    On my learned friend Lord Pannick's case, section 6 has to work, despite the fact that, on his argument, it would reduce parliamentary control. Reduce it down from primary legislation as a requirement to mere parliamentary motion. That is the first significance.

  • When you say "can't increase competences", it can increase the way in which competences, or change the way in which competences are exercised, can't it? Isn't that the point of Article 48.6?

  • 48.6, third paragraph, my note says.

  • It certainly says "shan't increase the competences", but that means extend the areas in which you may act, but you may nonetheless act in a particular area by --

  • They already have competence to increase.

  • Yes -- by a different route, for example a different qualified majority or a qualified majority instead of unanimity.

  • My Lord, I think you are right. So it can in a sense but can't in others, if that makes sense? What you can't do is to expand sideways.

  • I just wondered, under section 6(1) of the 2008 Act, all these provisions of the Lisbon treaty, are they new?

  • The short answer to that is I don't know. We can find out and let you know.

  • Isn't the position that they are new to this extent, that most of them provide for an option to use a different legislative procedure or a different voting system in a way that dilutes the blocking power of individual member states? That is actually the vice with which that part of the Act is concerned with.

  • Yes. This is the Trojan horse point. I don't think I dispute that basic analysis.

  • So your argument that here they were being introduced for the first time, really, is met perhaps by the point that this was the first time they needed to be met by any legislation?

  • My Lord, what I meant by the first time is that this is the first time there is legislative control, which there didn't have to be, on this sort of exercise and this is the Minister of Crown being precluded from doing stuff on the international plane. That is what I meant by the first time. My Lord may be right, it is the first time Parliament has chosen to intervene in this way. It may have been triggered in a particular way but its significance is that, before this, subject of course to the earlier 78 Act and the 2002 Act that I went through earlier in opening, this is the first time they have imposed that control.

    So there are really two points about this Act I made in opening, you will recall; (1) they are controlling -- it doesn't terribly matter what it is -- but they are controlling particular things that are the exercise of prerogative powers on the international main, and (2) they are doing so in a variety of different and nuanced ways. This one is parliamentary motion, and go back over to the previous page and there you have examples of primary legislation being required. So it is a different thing that is controlled and it is a different mechanism of control. Look at section 5. So you have got the how and the what. That is the first point.

    The second point is that, as we know, Article 50 is introduced in Lisbon. Parliament noted it as a principle change and it approved Lisbon because it increased -- and Article 50 it focused on -- because it increased the competence of the European Parliament. It then decides what to do about. What are we going to do about Article 50? How are we going to control that, or are we? Answer: despite other controls of various kinds, nothing on Article 50, is the short and bald(?) point, and the only proper inference, we respectfully submit, is that Parliament decided therefore to leave this power to be exercised by Her Majesty's Government along with all the other prerogative powers that are not controlled in that sphere by this piece of legislation, day to day business of the foreign affairs prerogative, giving of notice; they were, that is Government were, the only organ which could if physically and legally do so and no control was imposed over that decision, despite the fact that Parliament was directly focused on it in 2008.

    We know also in that respect, that Lisbon -- this is perhaps a third point -- including Article 50, was added to the list of treaties in the 1972 Act and approved by Parliament in section 4 of the 2008 Act, and we respectfully submit that that is significant because it is a recognition at the very least thereafter, and pace the debate I had with my Lord, Lord Mance about whether withdrawal was a gleam in the eye of those who signed up to the 72 Act in 72, pace that, it is a recognition of the inherently limited nature of the rights and indeed of the basic structure and purpose of the 72 Act. From now on, the rights in section 2 are inevitably subject to Article 50 and we know that Article 50 is about the fundamental premise, as I described it. It is about withdrawing, the fundamental contingency of withdrawal is now catered for and brought within the statutory scheme.

    So we do respectfully submit that that is significant and it is entirely consistent with our scheme of analysis, which is that the royal prerogative powers, which the 72 Act had done nothing to take away, remain, subject to the parliamentary controls, specific and nuanced as they are, in the 2008 Act. It is not a statutory power, Article 50, as such but it involves Parliament in legislation recognising its existence and acknowledging its effect and all of that, we submit, is critical to the consideration of the statutory scheme as a whole and what it tells one about Parliament's intention on the division of constitutional responsibility in relation to Article 50. This was the very mechanism by which the very thing which is now challenged was to be done. Parliament decided, as it did, no control. It so decided recognising because it is absolutely obvious that, if Article 50 notice is given, then the process of withdrawal is commenced, the bullet is fired at the target, with all the potential effects that that has on directly effective rights and obligations and on other legislation like the 2002 Act, whose practical impact may remain or would be, as it were, taken away when we leave the club. But the idea that Parliament didn't know or cannot be taken to have known that that was the effect of Article 50 simply could not be sustained, we respectfully submit.

    If the respondents are correct, Parliament always intended that the Government could not give such notice, from 1972 onwards, without primary legislative authority. They say that was the effect of the ECA and, if that is right, given the controls that are introduced in 2008, it is, we respectfully submit, inexplicable why Parliament was not included. They made provision for the sorts of things that required primary legislative authority. Why would they not have included Article 50 within that if that is their view? And it is not an answer to say they were operating on the basis of an assumption that the power could not be used. That, as we know, is a highly controversial and contestable assumption with the debate still raging years afterwards in the Supreme Court with 11 of you listening. It doesn't explain in any event why it is that Parliament would not have set out quite clearly on the face of this piece of legislation that primary legislative authority was required.

    My Lord, Lord Carnwath, invited my learned friend Lord Pannick back onto the 2008 turf of the 2008 Act and its treatment of Article 50, and he gave three answers in that exchange, if we have understood him. Firstly, he said Article 50 merely expresses the power that United Kingdom has always had to withdraw from treaties. We respectfully agree but it is no answer to the points I have been making and it is important that he accepts that Article 50 reflects the prerogative power to withdraw from treaties because that was the position on that analysis in 1972 just as much as in 78, but Article 50 is now the mechanism, but point is that answer does not, that answer, address the key significance of this legislation, which is that it imposed a series of controls over prerogative powers, some of them and not this one.

  • Do you say its object was to codify all the circumstances in which parliamentary control would be required?

  • My Lord, we know that the scheme of the legislation developed and that they turned back to the issue again in 2011, so I don't make the submission that it was intended to codify, but the idea that the selection that Parliament made here is not significant, I respectfully submit, is an improbable one.

  • Because of the greater significance of Article 50?

  • But an alternative view was that both 2008 and 2011 were directed at a highly specific problem, which was the use of the internal procedures created by the Lisbon treaty in order to effect changes which would previously have required a treaty change, and therefore would have escaped the requirement that a new treaty had to be added to the 1972 Act by amendment.

  • My Lord, we respectfully would not accept that thesis. We would not accept the thesis because we respectfully submit that it has a broader purpose than that. It has the purpose of Parliament intervening to make decisions about what it does and does not want to control. You may say it had a particular focus in doing that. There were particular things that particularly concerned it, but fact of the matter is that it addressed both what it wanted to control, how it wanted to control it, and we know that, when we come to 2011, I know my Lord will say "It is an example of the same beast", but it specifically focused on Article 50 and introduced Article 50(3) in schedule 1, as we know.

    Anyway, my Lord, Lord Carnwath, put those matters to my learned friend Lord Pannick. That was his first answer. The second answer was that it is not directly effective and so effect is not given to Article 50 by section 2(1) and Lord Hodge put to me that Parliament had approved the various legislative procedures at EU level and that indeed is true, even though they are international procedures between states and not directly effective in domestic law either. But the point is that Parliament also approved in the same way the non-directly effective provisions of Article 50. So you have a direct, as it were, parallel between those two.

    Then my learned friend Lord Pannick finally in answer to Lord Carnwath said Article 50 indicates nothing about the way the Government has to act or Parliament has to act domestically, it simply referred back to constitutional requirements. Our short answer to that is the same one: that is not the point. The point is that the domestic legislation, 2008, 2011, are key parts of those constitutional requirements and they, that is the domestic pieces of legislation and not Article 50 in terms, say a very great deal about the controls Parliament has and has not chosen to impose.

    We make effectively the same points in relation to 2011. The whole topic of what to control, the nature of the control is revisited, it is considered afresh and considered with care, and we know that it deals with Article 50 specifically in schedule 1. We respectfully submit the correct analysis is therefore the one that I have indicated.

  • Yours is really a jury point, isn't it? If you look at the first statute, you accept that there is no evidence that they thought about Article 50 in relation to the first of the two statutes but you say, well, common sense suggests they must have, members of the jury, and in the second one you are slightly better off because there is a reference to Article 50.

  • My Lord, you will not be surprised to hear me say I do not accept it is a jury point.

  • Nothing wrong with a jury point if it is a good one, Mr Eadie.

  • It is a good one either way.

  • We are at least jury-sized.

  • You are at least jury-sized. That is true.

    But you have my submission on the nature of it, these were selections that Parliament was making in the very context and indeed the idea that they didn't think about Article 50 --

  • Well, you were told, it was in the explanatory notes specifically.

  • The point that I have just been handed -- it is one of the principle changes, what are we going to do about it?

    The 2015 Act, the final part of the jigsaw, and it is against that background, 2008, 2011, that you arrive at 2015. Can I start with two preliminary points, and I am just going to give you references, given the time, if I may. Firstly, the point about whether Lord Dyson in paragraph 19 of Shindler was or was not assuming. We dealt with that in our case below, our skeleton below -- if you really want it, MS 12227 -- but the short point is the one that they were not deciding or turning their minds to that issue.

    Secondly, in relation to comparator legislation, because we know the 2015 Act was silent, we respectfully submit that there is a jolly good reason why the AV Act, the Alternative Voting Act, contained the legal consequences within it, and that was because there was no prerogative power to alter the actual voting system, so you needed provisions in legislation to work out what those consequences are. By contrast in our situation at 2015, you have the freestanding source of power under the prerogative to give the Article 50 notice. So we respectfully submit that that is the short answer, that is the short answer to that.

    Then Mr Chambers made comparison with the 1975 referendum and how that might have been set up and purported to rely upon a statement by a minister of some ambiguity all those years ago; (a) it was a statement by a minister of some ambiguity all those years ago, is the first answer. The more significant answer perhaps is that that was well before any legislation remotely similar to the 2008/2011 Acts which directly focused on the nature of parliamentary controls over specific prerogative powers and their exercise. So we submit that 2015 sits in the context of 2008 and 2011 and it sits in the context of Article 50 existing. It was the necessary first step in the process of withdrawal, it was the prescribed and the mandated process for withdrawing. If we are going to do withdrawal, that is how we have to do it, and, moreover, the 2015 Act asks the very withdrawal question and sets up the referendum to answer it.

    We pointed out that, on the respondent's case, the effect of the 2015 Act was to require the self same question to be put back to Parliament. The very question they asked in the referendum. My learned friends Lord Pannick and Mr Chambers, and I think all of the other respondents, perhaps with the exception of Mr Gill, accept that a single line would do. A single line act would sought the legal problem.

    That created a difficulty which Lord Pannick realised. It created a difficulty because that made no sense in the context of legislation in which Parliament had already decided to put that very question to the people in a referendum and had set up an act for the purpose of doing that, and so the answer which he was driven to in order to explain away that constitutional strangeness, to put it at its lowest, was that that might be or might not be the only question that Parliament was interested in. Parliament might be interested in other questions but that is not an answer. It is not an answer because it bears no relation, the possibility that Parliament might introduce amendments and the Lords want to discuss negotiating strategy, all of that, it has nothing to do with his legal case. His legal case is you need primary legislative authority just to give the notice. It is no good saying you have to go back because they might want to ask other questions, that is the solution, as he accepts, to his legal case and we respectfully submit therefore that the answer he gave is no answer at all, and indeed we submit that the 2015 Act speaks volumes about the intention of Parliament.

    Is the result of no legal significance? We respectfully submit that would be very surprising and you know what our primary case is, namely that it is consistent with the scheme of legislation. It left the royal prerogative power to give notice in the hands of the Government, it introduced no form of control of the kind we saw in 2008 and 2011, and the reason for that is because the royal prerogative exists and existed to give effect to the outcome of the referendum.

    We also say, as you know, alternatively that, even if the 72 Act had the effect that it did on the royal prerogative, the 2015 Act is still highly legally important. A flexibility of the constitution is important -- and I am not going to go back on that, Robinson. It is language and not divination, of course, but you have plenty of language in the 2008 and the 2011 Acts to work through and we know that in the context of the 2015 Act, Parliament chose to set up the referendum as it did.

    Can I address one other question just before finally coming to the significance of yesterday's events and that is that no one I think is suggesting that, in our particular context, the foreign affairs prerogative or indeed any ingredient of it has been destroyed. That is not the nature. We are not abeyance. We are a control on exercise. We are not abeyance or abrogation or cutting down or destruction because, even if Parliament had given express authority, that authority would be in nature to exercise the very power, in other words the power on the international plane to withdraw. No one is suggesting that the power to make or unmake treaties, to withdraw from treaties, has gone. So what we are truly dealing with here is not destruction forever, we are -- and it was the Lord Reed analysis I think -- but we are dealing with, on any proper view of it, we are dealing with a situation in which it is the exercise of prerogative that is controlled and, if that is the right analysis, then it is perfectly possible and we respectfully submit the most convincing analysis, if we are wrong on the 72 Act, the most convincing analysis at that stage becomes, if it is all about the exercise of the prerogative, the 2015 Act significance is perfectly obvious, because no one asserts -- and Lord Pannick accepted in questioning with Lord Reed that, if there was power, if the power continued to exist and it was a question of exercise, then after the 2015 Act, no one could possibly say that it was improper or even remotely unlawful for the Government to exercise that particular power.

  • I don't quite follow that because, if the prerogative could not be exercised except with authority in the form of an Act of Parliament, then it is not the prerogative that is being exercised, it's the parliamentary authority.

  • But they leave the prerogative in place, is the argument. The point I am really on here is, what happens if you are against me on 72? How does that work? What is the significance then of 2015? The analysis then goes, we submit, if it is all about exercise, then 2015 is not as it were reinventing something which has died -- exhuming the body, as someone I think put it -- it is simply, and again wary of my Lord, Lord Kerr's metaphors point, it is simply indicating that hereafter the exercise of the royal prerogative is entirely proper.

    My Lords, the motion. May I just briefly tell you --

  • Sorry, I don't want to delay things but I do need to clarify a point which arose on the first day, a sort of slight difference between myself and Lord Sumption about the relevance of the subsequent legislation, because I think we need to know whether there is a difference between you and the Attorney General for Northern Ireland, and indeed Lawyers for Britain, because the point made by Mr Justice Maguire is that, yes, this will result two years down the line in changes to the law, but that will be governed, or is intended to be governed, by the legislature -- and I think one would add you cannot control that but it is in the control of Parliament.

    Now, that is a point which I think is taken by the Attorney General for Northern Ireland but it is not a point which you have taken. I understand you don't need it on your hypothesis, but are you distancing yourself -- you do refer, it comes into paragraph 105 of the Mr Justice Maguire's judgment, to which you do refer to, apparently with approval, in your case but I just want to know whether that is something you disassociate yourself from or whether it is part of your case if only as a fallback?

  • (Pause)

    I know it is a difficult question to answer, but that is really the reason why I stepped in on the first day.

  • I was thinking gifts and Greeks.

  • Yes, I thought you might be. Yes. If you don't want to say anything more about it --

  • Can I say we are tolerably neutral about it. If it helps us, it helps us.

  • You want to deal with the motions.

  • You should have a copy of the motions before you on your desk, and we have given you both, because there have been two. I referred to one in October, 12 October, so the one with big writing on it -- it looks like that -- that is the one that happened yesterday.

  • What do you say about them?

  • My Lord, you see the resolution, the nature of the resolution, and you see in effect that it indicates the view of the house.

  • You see the majorities.

  • You see in particular the call from the House of Commons from the Government, final line, to invoke Article 50 by 31 March 2017.

  • The other one, which is the 2016 one, the only bit that you really need -- the rest of it is history and how you got to the place where it ended up -- is the final paragraph, "resolved", because again it was an opposition day motion which the Government amended and was then passed by the house --

  • -- in that way and we respectfully submit that that is highly significant. It provides the sharpest of focuses. No doubt it is not legally binding but that doesn't mean it is not legally relevant. It provides the sharpest of focuses on the nature of the issues now in play because Parliament has given, or the House of Commons at least has given, specific approval to the Government to give that notice and indeed it has called on them to do so by a particular date. It has done so as it did at the outset all of those years ago, in precisely the same way.

    So if one is worrying about joint effort and have you got a mirror -- we respectfully submit you already had the mirror because you had primary legislation in the 2015 Act -- but you have an even more perfect mirror now, you have not just got the 2015 Act, you have got this resolution by the House of Commons.

    It is impossible, we respectfully submit, in those circumstances to pray in aid broad considerations of the kind my learned friend Mr Chambers urged upon you about parliamentary sovereignty. Parliament has indicated its view and has done so clearly, and has done so clearly, and has done so --

  • Well, the House of Commons.

  • The House of Commons, exactly.

  • But the Queen in Parliament has not.

  • Because the House of Lords has not.

  • No, the Queen in Parliament has not. There is no statute. The argument is that, if you are wrong on your interpretation of the Act, you say this helps you?

  • My Lord, I respectfully submit that it is significant but not, as it were, as directly legally binding. I certainly do not make that submission.

  • That is not quite the question.

    Do you accept that, if you are wrong on the interpretation of the 1972 Act and the 2015 Act and other subsequent acts do not help you, then this motion does not help you?

  • I do. On that premise, I do.

  • But I nevertheless respectfully submit that it is a matter that the court can take into account and that it is legally relevant to the answering of that question because what it does in a nutshell --

  • Well, it is good grist to your general mill.

  • I am going to be accused of making another jury point but, my Lords, you see where it takes you. It takes this court effectively into a place where, if you declare the exercise of the prerogative unlawful, positively unlawful in that way, you are not just leaving the matter in the usual way to the executive and to Parliament to sort out, you are in effect, and this is the only thing that could be done, requiring primary legislation. So in order to withdraw to give affect to the referendum --

  • Well, we are not requiring it. We are saying the law of this country requires it.

  • My Lord, that is true and I accept that, but the reason I make the point is because primary legislation would thereafter be the only way to go, and so the Government would in effect have to introduce a bill to Parliament in essence to confirm that which at least the House of Commons has already called upon the Government to do.

  • If the resolution was enough for your purposes, you would not be proceeding with this appeal.

  • My Lord, we might have got to day three -- (Inaudible) at 7.00 last night.

  • If you had said it was enough for your purposes, I dare say Lord Pannick and others would have taken issue with that.

  • I hope you will appreciate, I have not made that submission.

  • Mr Eadie, what the resolutions might be said to focus is the point that we are dealing with, what is the correct legal mechanism by which it is done, and nothing else.

  • Exactly so, that was my final -- I don't want to make it an in terrorem submission because they never go down well, particularly up here, but that is indeed the position.

    My Lords, I am sorry, I have been a little bit longer than I thought.

  • You had quite a lot of questions towards the end.

    Thank you very much indeed, Mr Eadie.

  • My Lord, could I make one uncontroversial, I hope, point which is on behalf of all the lawyers, to thank the court staff for the quite extraordinary efforts that they have made to accommodate all of our demands, many of them I am sure unreasonable, before and during this appeal. It is genuinely appreciated by all of us.

  • That is much appreciated, Lord Pannick, thank you.

    We would like to thank everyone involved in the presentation and the preparation of this case, including the advocates for keeping to their allotted time. We know that a great deal of work has been done behind the scenes to ensure that -- the very large number of documents that have been made available to us in a well-organised form and in a very tight time schedule. We are very grateful for that.

    In addition to counsel, we are also grateful to all those inside and outside the court who have been converting our legal discussions into a more accessible form for members of the public. It bears repeating that we are not being asked to overturn the result of the EU referendum. The ultimate question in this case concerns the process by which that result can lawfully be brought into effect.

    As we have heard, that question raises important constitutional issues and we will now take time to ensure that the many arguments which have been presented to us orally and in writing are given full and proper consideration. Having said that, we appreciate that this case should be resolved as quickly as possible and we will do our best to achieve that.

    Thank you again, everybody. The court is now adjourned.

  • (The hearing concluded)