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

It has, as we know, been subject to specific limitations, I have taken you to them, in CRAG and in the EU legislation, but it is in nature a general power. That is the first point, part of the answer.

The second part is that when specific limitations of that kind are imposed, they are imposed in the legislative scheme that you have seen, both general and specific, on a particular step on the international plane. For example, ratification, in CRAG, which is all it seeks to do. They are not imposed on some ratifications but not others, depending upon the consequent impact on domestic law. That simply is not how it works.

Thirdly, the Lord Oliver quote from the Tin Council case, the JH Rayner case, is not authority, we submit, against there being a general power. His point was, and was only, that the making of a treaty is not capable without parliamentary intervention, as he put it, of changing domestic law to incorporate that treaty. It is not and was not that the treaty-making prerogative is limited to circumstances where it can be exercised without affecting domestic law; that was not the way he cast the principle at all. All of that, we respectfully submit, leads to the question truly being whether the general power has been limited or excluded or controlled by Parliament.

That must be, we respectfully submit, the right question to ask and that is the right question, the right question in principle, I mean, because that is the way the world works: broad principle of prerogative, foreign affairs, specific elements, Parliament taking, as it were, bites out of it. That is the right answer therefore in principle. You look to the legislation to see whether control has been imposed. But we also know that is the right question, at least, to ask, because of the De Keyser line of authorities.

In each, the question for the court could have been framed, and the answer that the court gave could have been framed as being: well, the prerogative could never have existed to deprive the individual of his rights, and we know that in De Keyser itself; one can take other examples, Laker, FBU, particularly Laker, FBU is the criminal compensation scheme so it may be rather different in this respect but Laker, De Keyser, Burmah Oil, they all involved interferences with domestic legal rights.

The answer given by their Lordships was not the one-line answer that says: frightfully sorry, you cannot have this, because the prerogative power to affect legal rights in this way never existed. What did they do? They look to see whether the interposition of the statutory scheme -- they look first of all in Burmah Oil, the common law exercise, to see whether the nature of the prerogative was not you cannot take away -- you could, that was the premise on which they proceeded. That was the nature of the prerogative.

The question for them was whether in truly defining that prerogative as a matter of common law, that right to take away had to be accompanied by a concomitant right to compensate. That was the nature of the common law analysis, and you get to De Keyser, and the question is not has the right ever existed to affect domestic law; of course the right existed to take it away.

The question was in De Keyser, on the assumptions on which their Lordships were operating: has statute intervened to require the right of compensation; answer, yes, it has, because the 1842 Act and the 1914 Act did so. But they were analysing that in precisely the way that I have indicated.

They were not saying: you start with the prior question and if it affects rights, you stop. They were acknowledging that the exercise of the prerogative could indeed affect rights; and the question then was the secondary one, if you will, that -- the important one, which is whether or not Parliament had imposed constraints upon the exercise of that general power.

Here, as we know, I am not going to keep repeating the points, Parliament has set up rights, in our context of its particular kind, with its two necessary ingredients, the two-legged stool, one goes, it all falls down. The legislative premise on which that legislation operates is that the prerogative continues, and Parliament well appreciates the continuation of the suite of powers that exists within the generally expressed power to exercise foreign affairs and conduct foreign affairs. That is precisely why it legislated to control the individual ingredients as it did.

It didn't interpose control, and nor should the court interpose, as it were, some overarching form of control on this by saying: if ever any of these ingredients act so as to have an impact on domestic legal rights, that is the end of it. They were well aware that because of the structure that they created, and there had been parliamentary intervention, the way in which that structure worked was that if we exercised certain powers, it would have direct impacts.

That is my best attempt, as it were, at an answer to my Lord, Lord Sumption's question of yesterday. That is the third point.

Second point is it is clear that the exercise of prerogative in a variety of spheres can have effect on domestic law in a variety of different ways. Again, I am not going to take you to them, given the time, but I have made already the points about De Keyser and Burmah Oil. There, the taking of property was lawful, through the exercise of prerogative power directly interfering with those rights to property. The only question was, could that impact on domestic rights which occurred through the prerogative, no statutory basis; was that then subject to statutory conditions?

So those are examples. Post Office v Estuary Radio, I have mentioned it on lots of different occasions, I described it yesterday, can I just give you the reference to that. That involved altering the extent of territorial waters, and the result of that was to alter directly rights and obligations under domestic law, and indeed to create a broader category of criminal offence, if you will, because the criminal offence applied more broadly to a broader set of waters.

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