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

My Lord, it does, and we have addressed that head on and in terms in all the submissions that I have been making, but the reason for the -- well, the significance that we attach, and I will come to this directly, that we attach to the double taxation treaties -- the Post Office v Estuary Radio is slightly different, but double taxation treaties and the EFTA note -- is to indicate that this model, this way of doing things with its potential effect upon rights immediate and direct, as a result of international action, is not some constitutional anathema, but is actually a perfectly acceptable and accepted part of our constitutional arrangements.

Can I come directly to the fifth of my topics, then, with that lead-in, which is: is there a background constitutional principle of the kind that the divisional court identified? Of course that lies at the heart of the case against me; it lay at the heart of the divisional court's reasoning because as we saw, as you have seen, they do not in truth, despite that description, treat this as a background principle.

It was in effect dispositive of the case on their reading of it, and it was dispositive because it had the effect of reversing De Keyser, of turning legislative silence against me, if you will. The question was: no longer has Parliament expressed or by necessary implication taken away a pre-existing prerogative. The question was now: has it expressly allowed you to create a state of affairs on the international plane that has an impact on current domestic legal rights.

Can I turn directly in that sphere, and it is the first of the points I wanted to make, back to the question Lord Sumption asked me yesterday which is: is there is a prior question to be asked, do we need therefore to get into any of the legislative scheme, any of that; because the prior question is can you ever have a prerogative; did the prerogative ever exist in a way that allowed you to impact on domestic legal rights. If the answer to that question is no, then all of the statutory scheme and all of that analysis rather falls away.

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