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

Very ambitious counsel in 1993. The divisional court rejected what it regarded as an unsustainable argument, that despite the fact that Parliament had given its approval, despite the fact it had no effect, the protocol, on domestic law rights, nevertheless, the 1972 Act curtailed generally what would otherwise be a prerogative power to amend or add to the EEC treaty. That is what Lord Justice Lloyd is rejecting and the argument is set out at 567 E to G, in particular just above F:

"By enacting section 2(1), Parliament must therefore have intended to curtail the prerogative power to amend or add to the EEC treaty."

That is what he is rejecting, his Lordship, and just above H:

"We find ourselves unable to accept this far-reaching argument ... when Parliament wishes to fetter the Crown's treaty-making power in relation to Community law, it does so in express terms such as one finds in section 6 ..."

Et cetera, et cetera. That is the point and my point is this has absolutely nothing whatsoever to do with the issue before this court on this occasion, which is whether or not the Secretary of State has a prerogative power to act on the international plane in a way which will frustrate, nullify domestic law rights and duties and the statutory scheme. That is not what was there being considered. That is my answer and that is why, although I accept -- in answer to my Lord, Lord Wilson's question, although I accept that 567 G to H is a separate answer given by the divisional court to the answer given at 568 B, it is only by understanding what is said at 568 A to B and what is said at 562 C to E, that one can understand what it was that the divisional court was rejecting at 567 H. That is my submission.

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