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

My Lords, my Lady I have still got a bit to get through, I am afraid.

Submission three I was on, on the principal submissions on the statutory scheme. Submission three is a broad submission which is that it is fundamentally inaccurate, we submit, to conclude that by the 1972 Act, Parliament intended to legislate, and I am quoting from the divisional court, "so as to introduce EU law into domestic law in such a way that this could not be undone by the exercise of prerogative power".

That is the issue we were talking about yesterday.

In relation to that point, we submit first that it did not do so expressly; secondly, therefore, that if there is such a restriction, if there is such an intention in Parliament to be found from the 1972 Act, it can only be by implication; and if you are approaching the matter as a matter of implication, we submit that the implication is impossible if the later scheme of the legislation is taken into account.

In any event, any implication just viewing the 1972 Act in isolation would have to be based on the fact that it introduced or recognised rights created under treaties, and the implication that is said to flow from that is that therefore you can not drain the Act of significance; it is that point.

We respectfully submit that nothing flows from that fact, that it recognised or introduced those rights in that way, once it is clear, as it is, that the rights in question are created on the international plane, and that they depend upon the continuing relationship between the sovereign states, which were parties to the European Economic Community as it then was. The consequence of that is that the 1972 Act is merely, we submit, providing the mechanism for transposing, and I dealt with that yesterday.

It does not and was not intended to touch the exercise of the powers on the international plane. Indeed, the relevant provisions of the Act are not directed to that level, international action, at all. They are directed solely to the transposition into domestic law issue. For that reason, the 1972 Act does not even authorise the Government to make the United Kingdom a member.

Instead, its fundamental nature is to operate on the clear understanding and application of the dualist principle, and it on any view recognised rights of a very particular kind; rights having existence as a result of international processes in which Her Majesty's Government participates in the exercise of sovereign powers. So it is premised on the continuation, the active continuation of that sort of action, by the Government on the international plane. On any view, that aspect of the foreign affairs prerogative was not merely to continue but was an integral part of that legislation.

It is that that led to the submission I made yesterday about the rights being in that way inherently limited. The Government could on any view, exercising those powers in that way consistently with the scheme of the Act, have removed rights, have removed a swathe of rights introduced into domestic law through the Act.

So the case has to be against us that prerogative powers continue to be available, and recognised as continuing to be available, for all purposes to do with our participation in the functioning of the EU, but somehow nevertheless implicitly excluded the power to withdraw.

Just before I come directly to, is withdrawal different in scale or in kind; and it is a matter we have given some further thought to overnight in light of the fact that my Lord, Lord Wilson was interested in it yesterday, can I just divert briefly back into a question that Lord Mance raised yesterday about the Fire Brigades Union case.

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