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

Certainly but still, nevertheless, the only way we can act through those institutions is by exercising the prerogative powers; that is really the point. I think my Lord, Lord Mance put to me yesterday, it is through the institutions, we are not acting alone and that is true; but you cannot, as it were, take the first step in withdrawal, by definition that is a matter for you to act alone in. So I am not sure there is that much in the EU institutions point, although of course it is accurate to say that.

To some extent it can also be said if Parliament has authorised the making of EU legislation, then it has also authorised, as we know, by the same logic, Article 50, because it specifically considered that and introduced that and dealt with that. My Lords, I had better move on if I am going to finish within the time, if I may.

Fourth proposition, the cases on which the divisional court relied do not, we respectfully submit, establish anything like the breadth of principle which they base their judgment upon. In particular, if I can just mention three, JH Rayner, the Tin Council case, again, I am not going to go back to it in the time, I am sure you have all read it; core authorities 3, tab 43, page 1778 to 1779 is really that little segment of Lord Oliver, and you need to read it all, that segment. It is about a page, a page and a half, and you don't just take the sentence that says: you cannot use the prerogative to alter the law of the land.

The basic point that was being made by Lord Oliver was to recognise the existence of prerogative powers to make and unmake treaties on the international plane; that is really what we are talking about; but then to deal with a separate and distinct aspect of transposition. Treaties are not self-executing, absolutely self-evident, and we accept that proposition.

So it doesn't provide, as it were, a freestanding constitutional principle. Bear in mind, the reason I am going through all this is because what they did is treat the constitutional principle as in effect reversing De Keyser. The question is whether any statements by Lord Oliver can properly be taken as having that effect, and we respectfully submit not.

The Case of Proclamations and Zamora likewise; it is uncontroversial that the prerogative cannot be used simply to countermand laws passed by Parliament, but that is in truth pure De Keyser and Rees-Mogg, or, indeed, as a general proposition, common law rights. But one needs to exercise some caution, as we have already seen, in a variety of different and perhaps more or less subtle ways, and sometimes one can say it is altering a fact, and sometimes one can say it is doing something in a slightly special context, and context is all, of course.

But as a general proposition one needs to be careful, because it depends whether the executive can truly act to alter the law; it depends upon, as indeed Lord Oliver's statement of principle indicated in terms, parliamentary intervention. The question we have been debating for the last day and a bit is what is the nature of the parliamentary intervention that we have had in our case.

We also do not accept that there is any principle corresponding to that identified by the divisional court, to the effect that the prerogative to make or withdraw from treaties cannot be exercised so as to have the effect of altering domestic law. There is not any authority for that proposition. None of the cases that they cite are authority for that proposition.

All of the authorities that are cited against us in support of the proposition that the prerogative may not be exercised in a manner which is inconsistent with domestic law, domestic law rights, concern a situation where the exercise of the prerogative conflicts with some separate or pre-existing law. None of them decide that the Government may not withdraw from a treaty where this will impact upon the domestic law, and we know that there are circumstances in which that can be done.

The fifth point is that this is not a wholly unprecedented or aberrant situation and we know that because it is, we submit, orthodox, both in the UK and in international law, that it is possible for the prerogative to be exercised to withdraw from treaties, even if this might have a more or less direct impact on to domestic law.

Perhaps in that context, it may be worth just showing you briefly the case which my Lord, Lord Carnwath was interested in yesterday, which is the Turp case in the Canadian context, volume 26 if you would, tab 308.

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