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

My Lords, my Lady, the case for Ms Gina Miller is that the prerogative power to enter into and terminate treaties does not allow ministers to nullify statutory rights and duties.

In any event we say, Parliament did not intend that the rights and duties, which it had created by the 1972 Act, could be nullified by ministers acting on the international plane.

The court has heard that the case for the appellant is that the 1972 Act is a conduit. It is said it creates only contingent rights and obligations -- that is paragraph 63(d) of the appellant's written case, MS page 12356 -- and these rights are said to be contingent on the decision of the appellant to exercise prerogative powers to terminate the EU treaties.

My Lords, and my Lady, I say at the outset that the courts have rightly recognised that the 1972 Act has a constitutional status. It creates a new source of domestic law, and indeed it gives priority to it. My friend Mr Eadie accepted this constitutional status in answer to my Lord, Lord Wilson yesterday.

The appellants' argument, however, if correct, would mean that the 1972 Act, far from having a constitutional status, would have a lesser status than any other act, a lesser status than the Dangerous Dogs Act because on the appellants' argument, Parliament has made this fundamental constitutional change to domestic law only for as long as the executive does not take action on the international plane to terminate the treaty commitments.

We say that in the context of an act of Parliament, which expressly states, expressly states in section 2(4), that its provisions take priority, even over other legislation, the words "passed or to be passed", it would, with respect, be quite extraordinary if nevertheless the 1972 Act could be set at nought by the actions of a minister acting without parliamentary authority.

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