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

The court will see the headnote: a packet conveying mails and carrying on commerce, that is a ship, does not, notwithstanding she belongs to the sovereign of a foreign state, officers commissioned by him, come within the category of vessels which are exempt from the process of law:

"It is not competent to the Crown without the authority of Parliament to clothe such a vessel with the immunity of a foreign ship of war so as to deprive a British subject of his right to proceed against her."

This is the judgment of Sir Robert Phillimore, and the relevant passage is at 154. In the penultimate paragraph on that page, MS page 8417, page 154, Sir Robert says:

"If the Crown had power without the authority of Parliament by this treaty to order that the Parlement Belge should be entitled to all the privileges of a ship of war, then the warrant which is prayed for against her as a wrongdoer on account of the collision cannot issue, and the right of the subject, but for this order unquestionable, to recover damages for the injuries done to him by her is extinguished. This is a use of the treaty-making prerogative of the Crown which I believe [he says] to be without precedent and in principle contrary to the laws of the constitution."

There is a bit more detail but that is the point, that is the principle. Another example to which the court has already been referred but can I please take the court back to it is Laker Airways and Laker Airways is core authorities 2 at tab number 12, MS 307. The court has already seen this authority.

What I want to show the court, if I may, is the argument from the Attorney General, Mr Sam Silkin, which appears in the report at page 727, MS 391. If your Lordships have that page, MS 391, page 727, at B, this is the judgment of Lord Justice Lawton:

"The Attorney General based his submission on the well known and well founded proposition that the courts cannot take cognisance of Her Majesty's Government's conduct of international relations. Laker Airways' designation as a British carrier for the purpose of the Bermuda agreement was an act done in the course of conducting international relations ... the Civil Aviation Act did not apply ... that Act nowhere refers to designated carriers. An airline might be granted a licence to operate a scheduled route but not become a designated carrier. It could not by any legal process compel the Secretary of State to designate it as a British carrier. It followed, submitted the Attorney, that the withdrawal of designation must be within the prerogative powers exercisable by the Secretary of State on behalf of the Crown."

Lord Justice Lawton rejects that submission at the bottom of the page:

"The Attorney General's answer to the question was that the Secretary of State was empowered to act in this way [that is, take away the designation] because there was nothing in the Act which curbed the prerogative rights of the Crown in the sphere of international relations. Far from curbing these powers, by section 19(2)(b), Parliament recognised that the Crown had them."

The content of section 19(2)(b) appears in the judgment of Lord Justice Roskill at page 719, letters B to C, MS page 383. It is there set out if the court is interested. Going back to Lord Justice Lawton, his Lordship says:

"This is so but the Secretary of State cannot use the Crown's powers in this sphere in such a way as to take away the rights of citizens, see Walker v Baird."

That is another example, although I recognise, of course, there are two strands of reasoning in Laker, the other being that the act had occupied the field.

It may just assist to look at Walker v Baird, which is volume 9 of the authorities, tab 88 and it is MS 3409. Volume 9, tab 88, MS 3409. The facts of the case appear in the advice from Lord Herschell at 495, MS page 3413, middle of the page, page 495, Lord Herschell:

"The respondents by their statement of claim alleged that the appellant wrongfully entered their messuage and premises and took possession of their lobster factory and of the gear and implements therein and kept possession of the same for a long time, and prevented the respondents from carrying on the business of catching and preserving lobsters at their factory. By the statement of defence, the appellant said he was captain of the HMS Emerald and the senior officer of the ships of Her Majesty the Queen."

Missing four lines:

"He said he was giving effect to an agreement embodied in a modus vivendi for lobster fishing in Newfoundland during the said season, which as an act and matter of state and public policy had been by Her Majesty entered into with the government of the Republic of France."

That was the defence. We have an agreement with France.

Then page 497, picking it up if I may at the bottom of 496, MS page 3414:

"In their Lordships' opinion, the judgment below was clearly right ... unless the defendant's acts can be justified on the grounds that they were done by the authority of the Crown for the purpose of enforcing obedience to a treaty or an agreement entered into between Her Majesty and a foreign power ... the suggestion that they can be justified as acts of state or that the court was not competent to enquire is wholly untenable. The learned Attorney General who argued the case before their Lordships on behalf of the appellant conceded he could not maintain the proposition that the Crown could sanction an invasion by its officers of the rights of private individuals whenever it was necessary in order to compel obedience to the provisions of the treaty."

The proposition he contended for was a more limited one and the more limited one was that the treaty was for the purpose of putting to an end to a state of war, and that argument failed on its merits.

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