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

At 3280 and Lord Bingham, perhaps channeling the first Duke of Wellington, includes as a constitutional ideal that government should be carried on.

The majority in Robinson was surely right to adopt an approach that approved a constitutionally plausible course of conduct. Paragraph 12 is one which I particularly, with respect, commend to the court:

"It would no doubt be possible, in theory at least, to devise a constitution in which all political contingencies would be the subject of ... pre-determined mechanistic rules to be applied as and when the particular contingency arose, but such an approach would not be consistent with ordinary constitutional practice in Britain."

Then of course one sees how this has become dated with the advent invent of fixed Parliaments.

The last sentence is important:

"Where constitutional arrangements retain scope for the exercise of political judgment, they permit a flexible response to differing and unpredictable events in a way which the application of strict rules would preclude."

That is an approach I respectfully commend to this court.

With respect, the first claimant is wrong, we say, as she does in her printed case, the outcome of the referendum and the Government's stated position with respect to that are not matters for the court. In our political constitution, these constitutional features cannot be overlooked.

So while, of course, the determination by the Government of the United Kingdom that the constitutional requirements of the United Kingdom were met if notification under Article 50 is given under the royal prerogative is of course a justiciable question, in so far as the court can quite properly be asked to look at that question, a determination of this nature should be regarded as constitutionally proper unless shown to conflict clearly with statute.

Or, to put the matter another way, unless it can be shown by the claimant, or those on that side, that some statute expressly, or where by necessary implication, has taken away the prerogative in that sphere.

Our constitution, quite rightly, does not acknowledge executive supremacy any more than it does judicial supremacy but it does acknowledge the present and historic capacity of the executive, accountable as it is to Parliament to shape our constitution. The English constitution before 1707, the Irish constitution before 1800, the Scottish constitution before 1707, and now the constitutions of Great Britain and the United Kingdom have been shaped primarily by the interplay between the Crown and representative institutions. Practice or convention are important elements of the UK constitution but obviously must yield to statute.

Of course public law barristers in private practice -- and this is in part a confession -- are fond of yielding to the Archimedean temptation that a well placed litigation lever can move the world, and of course there are occasions when litigation can produce extraordinary results, but this should not normally occur in constitutional matters. Constitutional change in a constitution such as ours is primarily and overwhelmingly a matter for the politically accountable actors in it.

I want to conclude, my Lady and my Lords, by saying something about what we say is the skewing and distorting effect created by the bullet from the gun analogy. It is of course all rather slower than that. The gap between pulling the trigger and what happens at the end is an enormously important gap, and possesses some significance, but can I invite the court to consider this. Assuming that the two-year period prescribed by Article 50(3) is not extended, and assuming, as all of the claimants appear to do, the consequences for the three categories of rights in paragraphs 58 to 61 of the divisional court judgment, those consequences are not the result of notification under Article 50 but would be, on the claimant's case, consequences of leaving the European Union. Of course the law cannot be changed, save directly or indirectly by Act of Parliament. Yet the assumption, and we say it is an unjustified assumption, on which the divisional court rests is that any law, that is statute, that would be necessary to avoid these consequences if indeed they exist would not be made.

This could be tested a little through the European Parliamentary Election Act 2002 and that is in core authorities 1, beginning at 6550. As matters stand at present, the next election to the European Parliament will be held in 2019. Insofar as there is a domestic law right in suitably qualified persons under the 2002 Act, and I must say it is not clear to me that there is, to stand for election to the European Parliament, that right could not be taken away by the giving of notice under Article 50. If, depending on the timing of that notice, the events contemplated by Article 50 had not occurred before the date of the 2019 election to the European Parliament, anything that the 2002 Act required to be done would have to be done. There would be a proper complaint of domestic illegality if it were not done.

On the other hand, no rights that are derived only from the 2002 Act alone are lost by withdrawal from the treaties. If the treaties ceased to apply pursuant to Article 50(3), that doesn't mean that use of the royal prerogative to get notice has repealed or undermined the 2002 Act. It simply means that with the inapplicability of the treaties, the 2002 Act is no longer a particularly useful part of the statute book or a useful portal, which is the term which we use in our printed case.

Since this an abstract case, because giving notice gives rise to the consequences in terms of representation and Government participation in Europe, but notice by itself has no effect whatsoever and the assumption that -- and, certainly, one can see that giving notice may give Government and Parliament more work to do -- but the assumption that that necessary work, if it exists, won't be done, is one on which the claimants' case rests and we say it is a platform which, when examined, falls away.

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