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

That caveat, the subject two was the next point -- it was going to be there was no express provision that Article 50 notice or withdrawal is subjected to legislative conditions and must thereafter be exercised accordingly. Of course there are the controls which my Lady has just reminded me about, but, in relation to the exercise of our powers, there is no control in that way. The clear position indeed is directly to the opposite effect. The controls and the limits of the controls have been decided upon and made the subject unsurprisingly of express provision. The rest is prerogative.

That was the basis on which the 72 Act proceeded, that was the basis on which each of the pieces of legislation thereafter proceeded and that was the basis on which the 2015 Act proceeded, albeit with its additional constitutional significance of the kind that I have indicated and there is therefore, we submit, no necessary implication, no necessary implication because, in this sphere, this is the force of the reasoning of Lord Justice Lloyd in the Rees-Mogg case, Parliament when it wants to exercise control has done so very deliberately and very expressly.

So we are not in the sort of territory that you had in all of those earlier De Keyser type cases. We are not dealing with a situation in which Parliament has said, "This is the activity that you can do and, if you are going to do it, these are the controls, these are the regulations, these are the preconditions, you have to jump over hurdle A, B and C, and then you can exercise the power." That is what has created the necessary implication or something virtually analogous to that in the past and we are simply not in that territory. We are nowhere near it, because what that requires, as we saw from De Keyser, is a very precise identification of the nature of the act in question.

What is the act in question here? It is the giving of Article 50 notice and there has been no control over that at all. There is no direct regulation, there is no regulation at all of that activity, and so there is no necessary implication, (a) for the reason given directly transposable into our context by Lord Justice Lloyd in Rees-Mogg, but, (b) and in any event, were one to apply properly the reasoning and principles laid down by the House of Lords in De Keyser and subsequent cases, for the reason I have just identified.

It is self-evident, we submit, that withdrawal or revocation of the treaties has the potential to affect EU related rights and obligations in a very serious way, and Parliament knew that and yet left that power untouched, that prerogative power untouched.

No one can pretend they were not fully aware of what would happen if Article 50 notice was given, it was one of the principal changes made by the Lisbon treaty noted in the explanatory notes. If its intention truly had been that to subject leaving or withdrawing to a requirement for primary legislation, not merely could it have said so, but we submit it undoubtedly would have said so -- undoubtedly because it is evident that in those pieces of legislation I took you to, particularly the 2008 Act, it was specifically considering both -- and they are distinct aspects -- the mechanisms of transposition into domestic law and conduit, the stuff of the 72 Act part 1, and section 2 in particular, and the stuff of the later legislation in particular, the controls it wished to impose on the exercise of prerogative powers by Government on the international plane.

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