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

That is the green paper. The white paper is the next tab, tab 167 and that is MS page 5213 but could I ask the court, please, to focus on the green paper, 5189, volume 15, tab 166 and the particular passage to which I invite the court's attention is at MS page 5207. It is under the heading, "Ratifying treaties".

MS 5207.

"Ratifying treaties", paragraph 31:

"Every year the UK becomes party to many international treaties. These result in binding obligations for the UK under international law across a wide range of domestic and foreign policy issues. It is right that Parliament should be able to scrutinise the treaty-making process.

"32. The Government's ability to ratify treaties is currently constrained in two ways. Treaties that require changes to UK law need the enactment of prior legislation which, of course [of course] requires the full assent of Parliament [and they give examples] ... many other treaties [many other treaties] are covered by a convention known as the Ponsonby rule which is explained in box 3 ..."

Box 3 is over the page, and the court is very familiar with the Ponsonby rule, that the instrument is laid before both Houses of Parliament as a command paper for 21 days. Back to page 5207, 33:

"The Government believes that the procedure for allowing Parliament to scrutinise treaties should be formalised. The Government is of the view that Parliament may wish to hold a debate and vote on some treaties, and with a view to its doing so, will therefore consult on an appropriate means to put the Ponsonby rule on a statutory footing."

That is what ends up as CRAG, part 2. It is a statutory enactment of what was the Ponsonby rule, obviously with variations, but that is the purpose and effect of CRAG part 2. It is nothing whatsoever to do with the other constitutional principle, which is recognised in paragraph 32 of that document, that if a treaty is going to require a change to UK law, of course it in any event requires the enactment of prior legislation which requires the full assent of Parliament.

In my submission, therefore, CRAG part 2 is nothing to the point. It doesn't assist in answering the question in this case, which is a question concerned with whether there can be a prerogative power in order to amend the -- in order to frustrate legislation which has been enacted.

So that is the 1972 Act -- that is, sorry, the 2010 Act.

Mr Eadie also refers to the other post 1972 statutes. The court has been taken through them, the statutes that specifically relate to the EU from the first one in 1978, which addressed increases in the powers of the then European assembly, through to the 2011 Act, which is the culmination of this process, requiring not merely an Act of Parliament but in any context a referendum on changes.

Now, my Lords, my Lady, leaving aside the post 1972 statutes, if we get to this point in the argument, then I have submitted that there was and is no prerogative power to take action on the international plane to nullify the statutory scheme created by the 1972 Act, particularly in relation to a statutory scheme which introduced a new source of domestic law. I have submitted that the 1972 Act, having regard to relevant principles of interpretation, that is the Public Law Project case, on Henry VIII clauses, legality, no implied repeal, that the Act is simply inconsistent with any prerogative power to set it aside.

Now, if either of those submissions is correct, I say it would require the clearest of statements by Parliament in any later legislation, that it was intending, Parliament was intending, to create a prerogative power which did not otherwise exist. And I say that nothing in the later legislation comes close to establishing a clear parliamentary statement that a prerogative power that did not otherwise exist now exists.

What Mr Eadie relies on is --

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