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

Can I come on to that, my Lord, that is the next point. Let me just deal if I may, try to deal with the point your Lordship has made.

The court is not being asked in my submission to interpret the 2015 Act. There is no language in the 2015 Act which comes close to supporting the contention that is being made by the appellant. There is nothing. The appellant does not focus on any language in the 2015 Act, and in my submission, with great respect, it is a constitutional solecism to say that the court can somehow divine an intention from the 2015 Act, without focusing on the language that the legislation uses.

There are many statements to that effect, that it is simply not the court's role, even in a constitutional context; it is Lord Hoffmann's famous statement, approving the judgment of Associate Justice Kentridge(?) in the Zuma(?) case, I can't remember the case where Lord Hoffmann said it but I will track it down, the court has to look at the language of the governing instrument; and this is the 2015 Act; there is nothing in it that the appellant has drawn attention to which begins to support a contention that it touches upon the issues with which the court is concerned.

Indeed, I repeat, it is not the appellant's argument that power to notify is to be derived from the 2015 Act. That is not their case. It is somehow by means of legal osmosis that the argument is being constructed. There simply isn't anything there; there is nothing there upon which I say this argument can be framed. In my submission, it is not surprising that Parliament has not expressly addressed the question of whether ministers can use prerogative power in order to nullify a statutory provision. The principle is so basic that one would not expect Parliament expressly to address the question.

So I say the 2015 Act is an act of political significance; it is entirely neutral on the issue before the court, as to whether or not the minister has power to notify.

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