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

My answer to your Lordship is that there is a role for the court to play. The role for the court is to identify whether or not the Secretary of State enjoys a power to act on the international plane, using his treaty making, and departing from prerogative, in such a way as it will nullify statutory rights. For all the points that your Lordship makes, the essence remains, and what remains is that, before the 2015 Act, there is a body of statutory rights and statutory principles, the 1972 Act, and after the 2015 Act, all of those provisions remain. They are simply untouched by the 2015 Act.

Also untouched by the 2015 Act is the legal division of responsibility between the executive and Parliament. The Act says nothing about that, and nobody has produced any material whatsoever to suggest that the 2015 Act was intended to touch upon that issue. There is no material before the court in which ministers have said: and the division of responsibility between ministers and Parliament is going to be affected by all of this; none whatsoever.

Therefore I do not accept that the political significance of the 2015 Act, which I do not dispute, in any way touches upon the issue before the court, or touches upon the constitutional question. It was open to Parliament, open to Parliament, if it wished to do so, to say whatever it liked on this topic, and it said absolutely nothing.

For the court to infer matters that are simply not addressed in the Act, when they touch upon constitutional fundamentals, in my submission, would be fundamentally wrong; it would be wrong for the court to infer, on a matter of this importance and sensitivity, that is the relationship between Parliament and the executive, a radical change of position by reason of an act which says nothing on the subject.

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