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

It is my fifth topic, whatever it is called, and whatever it is called, MS 228 CA 2, tab 10, what it was concerned with was Parliament impliedly removing a prerogative power. My submission is that that is not the only type of case where the courts will impose limits on the exercise of prerogative power. Here, we submit there simply is no prerogative power to act under a treaty so as to defeat, nullify, frustrate statutory rights. That is one additional principle.

Another principle is where the exercise of prerogative powers would frustrate the provision made by Parliament; that is ex parte Fire Brigades Union, core authorities 2, tab 15, MS 444.

My Lord, Lord Mance made the point in argument, I think it was yesterday, that in ex parte Fire Brigades Union, the majority recognised that it was not a De Keyser type case; see Lord Browne-Wilkinson, and I don't ask the court to go back to it, see Lord Browne-Wilkinson, page 553 F to G; see Lord Lloyd at 573 C to D; and Lord Nicholls, 578 F, his analysis also does not proceed on a De Keyser basis.

So De Keyser in my submission is not, cannot be, an exclusive code as to the limits of prerogative powers.

I also need to address Rees-Mogg, ex parte Rees-Mogg. Here I would ask the court to turn it up; it is in core authorities volume 2 at tab 14 and it is MS 424. The court will recall that the applicant there was seeking to challenge the ratification of the Maastricht agreement; in particular his concern was the protocol on social policy.

Now, it is essential to, in my submission, understanding the case, to recognise that this protocol had no effect in domestic law and therefore did not remove, or indeed extend, domestic law rights, and that is stated by the divisional court at 568. It is MS 440. 568 of the report. Can I take the court to that, please. 568 A, MS 440:

"Would the ratification of the protocol on social policy alter the content of domestic law.

"The protocol itself makes clear that it was not intended to apply to the UK, nor is the UK party to the agreement which is annexed to the protocol. The protocol is not one of the treaties, which for this purpose includes protocols, included within the definition of the treaties in section 1(2) of the 1972 Act. It is specifically excluded by the 1993 Act. It follows that the protocol is not one of the treaties covered under section 2(1) of the 1972 Act by which alone Community treaties have force in domestic law. It does not become one of the treaties covered by section 2(1), merely because by the Union treaty, it is annexed to the EEC treaty, see section 1(3) of the Act of 1972."

So what was being complained about in Rees-Mogg had no effect on domestic law rights.

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