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

That is certainly a -- both of those are certainly potential ways of looking at the 2015 Act. Can I answer the question, not so much directly but to accept that those are both possible and one can approach the 2015 Act in a variety of different ways, and we have been thinking for obvious reasons, particularly in the light of the questions yesterday, we have been thinking about the true nature and significance for the 2015 Act.

Another, a third way if you will, is to look at it, it might be thought, in this way: you know, just before I get to this point, that our primary case is and remains that the legal significance of the 2015 Act is entirely consistent with the scheme of the legislation as a whole.

So it recognises that the prerogative exists alongside and indeed is the premise for all of the scheme of legislation which governs. So the significance of the 2015 Act is that it is silent, consistently silent, and leaves the prerogative in place; and does so in circumstances where it is perfectly clear how that prerogative would have to be exercised, and that it would have to be exercised using Article 50. That was the only mechanism for doing so; that is our prime case, you know.

You also know that our prime case involves placing reliance upon it inter alia to meet points about scale, and the size of the change and so on, in constitutional terms, in the rather broader terms in which I opened it yesterday. You know that we accepted and positively relied upon, as an accurate description, the description given by Lord Dyson in the Shindler case, of it being part of the constitutional requirements or arrangements. We respectfully submit that was right.

But the alternative way of looking at it is to say this: let's suppose for the sake of argument, and it is an alternative submission obviously, but suppose for the sake of argument that you were against us on the 1972 Act, because you thought, well, you have to look at the 1972 Act in isolation; in isolation if we looked at it the day after it came in, we would say, per Lord Wilson if I am allowed to take the question that was put without ascribing a view at this stage; if you looked at it on that day and in that way, you would say it is too big a thing to leave, to withdraw for the Government to do, Parliament having introduced all these rights, just too big a step, you can't do it. So the implication is you cannot do it under 1972.

What that effectively means for the prerogative, because the prerogative plainly continued to exist before and after the 1972 Act; I will come back to Lord Sumption's question yesterday about whether it was a prior question in a moment; but it continued to exist before and after. So what that would involve is a conclusion by the court, as it were, as a legal construct, that the necessary implication of the Act, because of all those big things, is to hold or to put a constraint upon the exercise of the prerogative in a particular way. We know full well that the prerogative would have to continue to be exercised in the foreign affairs sphere in other particular ways, because that is integral to section 2.

Keyboard shortcuts

j previous speech k next speech