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

I am not saying it is identical in all respects, it is an example, but it does at least serve to demonstrate that one can have that sort of set-up without throwing one's hands up in constitutional horror.

In summary, if I may and before coming to my final brief topic which will be parliamentary sovereignty, can I summarise ultimately where we are on the statutory scheme, and we do submit that it is at least of interest to note the stages in the tightrope walking that the other side's case involves.

Their arguments, we submit, involving -- ignoring legislation altogether, in other words ignoring the legislative scheme altogether, CRAG and EU, on the basis that they say in effect that the prerogative never existed to change the law, and so you don't need to bother with the legislative scheme.

It involves them saying: well, the next stage in the argument, even if that is wrong, is stop the clock at 1972. It involves saying that in 1972, even if you do stop the clock there, you ignore the basic dualist structure on which that Act was fundamentally premised. It involves saying that you ignore all of the legislation that followed the 1972 Act, and all of the confirmation of the dualist structure which that subsequent legislation entailed, and all of the fact and nature of the controls that that legislation subsequently brought with it.

It then involves saying you also ignore the constitutional elephant in the room with its dualist premise, which is the 2015 Act.

Finally, or perhaps consequentially, it involves saying, ignore also De Keyser, and that line of authority and its careful and principled approach to the alteration of the delicate constitutional balance between the powers of the Government and control by Parliament.

What we respectfully submit is that the divisional court did not properly take a long established constitutional principle and apply its inevitable logic; what they did instead was to take a number of different and generally expressed principles, and invented a new principle. They took those general principles and, if you will, pressed them into service as absolutes, and outside the context in which they were deployed, and in the cases for which those general statements of principle as general statements were sufficient unto the day.

We do submit that the principle that they identified as a background but in truth dispositive constitutional principle as they put it, is not sound and should not have dictated the answer to this case.

Finally, if I may, parliamentary sovereignty as the last topic; it is not a separate point, we submit. It is said that the Government giving Article 50 notice is an affront to parliamentary sovereignty, because Parliament has created rights, and only it can alter them. My submission is that our case fully respects and offers no affront to parliamentary sovereignty.

Four short points on that.

Parliament has indicated -- the first of them is that Parliament has indicated those matters on which it is required to be involved further. It has specified when, it has specified in relation to what, and it has specified how it is to be involved, and the scheme is as described, and Government giving the notice under Article 50 is entirely, it might be thought, expressly, in accordance with that scheme and its specific consideration of Article 50.

Secondly, that consideration by Parliament has included most recently the 2015 Act. I have made my submissions on that, the various ways in which you can view it, the fundamental aspect of it and Lord Dyson's accurate description of it as being --

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