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


My Lord, I am going to turn now to the 2015 Act, and if at the end of that I have not answered my Lord's question, someone will make a note and nudge me and I will do it first thing in the morning.

The 2015 Act is in the same volume of authorities, at tab 7, MS 160, and we don't need to spend long on the body of the Act itself. It contains all sorts of provisions about all sorts of things and it makes no express provision about the legal consequences of the referendum.

So the significance, if any, in our context of the Referendum Act is not in relation to what it says, but what it doesn't say.

My fundamental submission on the 2015 Act is that that absence does not mean that the 2015 Act is legally irrelevant. That is how it was treated by the divisional court.

Indeed we make the submission that it would be little short of bizarre if that were to be the position. Little short of bizarre, because the 2015 Act posed and put to a vote of all the people of the United Kingdom, the very question which the divisional court and the respondents say has to be reput to Parliament. And that prompts the question: was Parliament really in 2015 in passing that Act, in setting up the referendum, doing no more than simply reserving to itself the right to decide whether to leave or not as it saw fit.

Not merely is that highly improbable, but it would lead, it would run counter, we respectfully submit, to the repeated statements by ministers and by the Government, both in the debates leading to the Act, in Parliament, and in statements outside Parliament.

We have, in our case, if you could just find that for a moment, in footnote 4, a characteristic understatement -- a footnote, at the various statements upon which we rely.

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