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

Which is the description of it as being a constitutionally important thing, and we respectfully submit that it was hard to see how parliamentary sovereignty issues could avoid considering that Act.

Thirdly, and again, these are broader points, and I am not going to get back into territory involving inconsistent answers to questions asked by Lord Sumption again, but thirdly, just as a matter of note, with the legal submissions having already been made about their legal significance, Parliament is already deeply involved and unsurprisingly involved in the whole process of withdrawal. Of course now hereafter it can choose whatever level of involvement it wishes to have in those matters, but there have, as you know, already been debates concerning withdrawal. There was an opposition debate in October, there was an opposition debate set down for Wednesday, and it is perhaps of some interest that on neither occasion has either party, or has any party, or has anyone in Parliament called for primary legislation to be enacted in advance of the giving of the notice.

Put another way and perhaps rather more contentiously, Parliament does not seem to want the obligation that the divisional court has thrust upon them.

But of course it could decide to have more, or to pass legislation on the very subject if it wishes to. The point is that its interests are protected and its sovereignty is protected by its own decisions and processes, and there is no force in the point that says the court needs to intervene to protect it.

Fourthly, it will inevitably also be involved in all the ways we have been discussing this morning, including in the detail of the legal transformation of withdrawal after notice is given. Article 50 merely starts the process. It effects in itself no change in the law once it is given. Negotiations will be needed. The outcome cannot be known. The aim will be to secure agreement but the negotiations will no doubt be long and arduous.

We do know however, already, that Parliament will inevitably be involved in that process of withdrawal. We have the Great Repeal Bill which you have now seen the announcement in relation to; we have the very likely CRAG involvement if agreement is reached; and we have got the fact that they will inevitably have to address policy area by policy area, irrespective of the source of EU law, what the brave new world should look like.

So in the end, we respectfully submit, the propositions that we advance are or can be reduced into something which is at least almost as short and simple as the basic case which my learned friend Lord Pannick advances against us. Again, can I just give you five brief submissions in closing, my submissions summarising our case.

Firstly, the prerogative to make and unmake or withdraw from treaties exists today as a key part of our constitution, and as Parliament well knew in 1972 and well knows today.

Secondly, in recognition of that, Parliament has quite deliberately chosen to regulate some parts of those prerogative powers. It has done so expressly and in detail and it is unsurprising it has done so expressly and in detail, setting out the when and the how of those controls and it has not touched the prerogative power to give Article 50 notice again and evidently quite deliberately.

Thirdly, there is no basis, we submit, for the imposition of some form of hidden legislative presumption on Parliament's intention. The application of the strands of general principle about altering the law of the land relied on by the divisional court in the present context is wrong, we submit. The rights in question are those created on the international plane and they are simply recognised by our law.

Indeed, it is of the very essence of the 1972 Act, if one focuses only on that, that EU rights created on that plane will be altered and removed directly through the exercise of prerogative powers, and that is a step, and a significant step along the road to finding the intention in relation to withdrawal.

So fourthly, we submit that the apparent simplicity of the position that the respondents put forward represents, we submit, a serious constitutional trap. The principle and its application in a context such as the present is at best highly controversial. That is not, we submit, a proper premise, a proper basis for a presumption as a tool for imputing intention to Parliament.

By applying that broad principle, outside its proper confines, we submit that it takes the court or would take the court over the line, a line which it has been assiduous to respect, between interpretation and judicial legislation. The courts would be imposing in effect a new control of a most serious kind in a highly controversial and, by Parliament, carefully considered area.

Fifthly, the court would be doing so in circumstances in which the 2015 Act and the fact of the referendum undermine any possible suggestion at the very least that the use of that power was objectionable or anything other than entirely consistent with the will of Parliament.

My Lords, my Lady, those are my submissions. I am going to hand over to Lord Keen unless there are further questions I can seek to help with.

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