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

My Lord, I accept that they are at least arguably different in kind to the kind of thing that is contemplated by the ECA and our particular legislation that we are considering, and that needs to be viewed on its own terms, so I am going to come to that as my third point.

The point I am making here is a slightly lesser one which I fully accept broadens out the point, so it becomes a question of whether or not the law can be altered or affected directly by actions of the prerogative; and true it may be that sometimes that effect is created by altering a legal fact, and sometimes that legal effect is created, because the right in question under domestic law is inherently limited anyway or is contingent upon the exercise of the prerogative, eg the right to property being contingent upon the ability of Government to take and blow up your oil wells if the Japanese are advancing.

So I fully accept that they are different and we have another example, just to mention, which is the Vienna Convention on Diplomatic Relations. I know my Lord's point would be similar if not the same, and you know the structure of that, and we set it out in our case at paragraph 40(b), but the structure of that was to create, as it were, on the international plane an ability or a power within Government, because it could only be Government that exercised it, a power conferred by the convention itself on diplomatic relations in that case to say who was allowed to be or who was to be treated as being the head of mission, and who, if anyone, should be deemed to be persona non grata thereafter.

Those were rights, as it were, on the international plane that Government had. They were not brought into domestic law. The structure of domestic law was rather to create a series of rights and immunities for those who benefited from the characterisation that those international steps would give them.

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