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

This is why analogies can be so dangerous, because we try and analyse what has happened. We know the foreign affairs prerogative survives the 1972 Act. It has been exercised constantly for 43 years with regard to EU law, so the term clamp is perhaps an exaggeration, and it might be more appropriate to say, as my Lord indicates, that post the 1972 Act, it might be seen as an abuse of that foreign affairs prerogative to exercise it in order to take us out of the EU; but clearly there could be no such abuse after the Referendum Act 2015 and the result of the referendum was known.

So it is not a case of the foreign affairs prerogative being limited or cut down or clamped. It is simply a question of whether it would be proper and appropriate for the executive to exercise the prerogative in particular circumstances, and the circumstances that we have to address are those which exist today in light of the 2015 Act, which is of considerable constitutional importance and the decision made in the referendum, knowing that if Parliament wanted to intervene and limit the exercise of that prerogative right, it is free to do so and has chosen to remain silent.

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