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

I will try not to give too many inconsistent answers in the same five minutes if possible.

I was trying to deal with Lord Mance's points yesterday about Fire Brigades Union, whether it stood for a broader principle. The point that I was making was that it doesn't, we respectfully submit. It does involve the court concluding that the home secretary could not exercise his prerogative power in the circumstances in which the legislation said what it did in section 171(1). We would invite you, without going back to it, to read or to reread Lord Browne-Wilkinson on that issue at 554 F, Lord Lloyd at 502 E, and Lord Nicholls at 506.

They all effectively concluded that it would be an abuse of his statutory power under section 171 for the Secretary of State to announce that he would not introduce the statutory scheme, and to introduce the prerogative scheme instead. Lord Nicholls specifically held -- that was Lord Lloyd's analysis and Lord Nicholls specifically held that it imposed that section, a duty to keep under consideration when to introduce a statutory scheme, and by introducing the new scheme, he had set his face against that. So in short there was a specific statutory duty to which the home secretary was subject, and from which he had disabled himself from exercising.

So there is no broad principle of frustration of rights or changes to domestic law; the straightforward, if you will is a -- principle is a straightforward public law principle, and the House in that case was only divided on the interpretation of the facts, had the Secretary of State in fact disabled himself.

So to be analogous, the ECA in our context would have to contain a provision to the effect that the foreign secretary either must ratify or should keep under review when to ratify. There is nothing indeed in the ratification at all in our particular context. That is what we say and I wanted to go back on Fire Brigades Union in that way.

Can I then turn to scale, and I don't mean to diminish the force of the point that Lord Wilson puts to me. It is a genuine and real one that the other side takes. So scale or difference in kind, however you choose to put the point, you are actually withdrawing, you are not just altering in a small way, as it were, the corpus of rights in and out; you are actually withdrawing, is the force of the point against us.

Our answers to that are these. Firstly, we say, the ECA does not touch withdrawal. The fact that it is, that it creates rights which are contingent on the shape of the corpus of EU rights and that they can be removed as well as added to, may not provide a complete answer but it is a step along the way because it shows that Parliament was contemplating removal of rights. We also submit, as you know, that it was contingent on the international relationship between the UK and the other EU member states remaining the same. For that reason, the process of withdrawal, the giving, commencing of that process by giving notice, is not inconsistent, we submit, with legislative intent.

You have got our point about the basic structure of the Act and its dualist features, focusing purely on transposition, not on controlling those international powers.

That is the view of the ECA in isolation, in answer to that point, and as you know, our case is you don't view it in isolation properly; you take into account also the scheme of legislation in its entirety, so the subsequent pieces of legislation. We know, I took you to them yesterday, that the later legislation absolutely plainly does address and consider what powers to take back into parliamentary control of whatever kind, and what powers to leave in the hands of the Government.

It specifically considered, as we saw, in the 2008 and 2011 acts, Article 50, which is the very process of withdrawal, and we saw yesterday that it made provision for Article 50(3) as one of the rights, and all of that.

That is the second of the answers. The first is viewing 1972 on its own; the second is look at the later legislation; and third is, if the concern constitutionally is scale or a different kind of thing, a different kind of change, then the constitutional answer for that is the 2015 Act and the referendum.

That rather leads into the point that was also made yesterday about joint effort, have we got mirror-images, joint effort and matters of that kind. Again, three short points if I may on that.

Firstly, on any view, there has been a joint effort, and there will continue to be a joint effort at this end of the scale. In other words at the withdrawal point, 2015 Act again, the referendum and the continued involvement of Parliament in the necessary process of implementing the withdrawal.

Secondly and strictly, what will happen on exit will reflect closely what happened on entry. The decision to enter involved an international act, the signing of the accession treaty, domestic legislation to come into force on entry, the ECA, and the final international act, ratification.

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