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

National Federation of Self-Employed, volume 8, tab 68, MS 2782. The relevant passage is to be found at MS 2809 in the speech of Lord Diplock, between F and G if your Lordships and your Ladyship have that, at tab 68, Lord Diplock says:

"It is not in my view a sufficient answer to say that judicial review of the actions of officers or departments of central Government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge. They are responsible to a court of justice for the lawfulness of what they do and of that the court is the only judge."

That is the point. It is no answer for the Attorney General to say in his submissions, as he did on Monday, and I quote:

"Parliament can stand up for itself."

With great respect, that is a bad legal argument. The same could have been said in Laker, the same could have been said in ex parte Fire Brigades Union. It is the role of the court and my Lord, Lord Reed asks me about the role of the court, it is the role of the court to address whether there is legal power to act in the relevant respect, and the ability of Parliament to control that which the minister is proposing to do is, with great respect, nothing to the point.

This is as fundamental as any other principle in this case and I invite the court not to accept any suggestion that the legal limits -- I emphasise legal limits -- on ministers' powers are to be left to or influenced by political control, or parliamentary control, short of an act of Parliament.

The appellant then says, well, the procedures under the 2010 Act, the CRAG act, are very likely to apply to a withdrawal agreement. That is not good enough. There may not be a withdrawal agreement and the UK would still leave the EU under Article 50(3). We don't know. If Parliament were to refuse to give approval to a withdrawal agreement, Article 50(3) would still apply. We would still leave. Parliament's approval is not a necessary condition for us to leave.

For the same reasons, the so-called Great Repeal Bill does not assist the appellant. There is no such bill at present. The court cannot proceed, in my submission, on any assumption as to what Parliament would or might do with a Great Repeal Bill. My Lord, Lord Sumption put to Mr Eadie the court cannot assume that the Great Repeal Bill will repeal the 1972 Act. Mr Eadie agreed, and, with respect, so do we. It may be enacted, it may be rejected. Come what may, the act of notification commits the United Kingdom to leaving the EU with the consequence for statutory rights that we have drawn attention to.

One other very brief point. The court, I know, will have been much assisted by the various analyses by academic lawyers, of real distinction, on both sides of the argument on this appeal. Each side has extracted from the academic analysis the points which support our respective arguments and the court will decide who has the better of the arguments.

My Lords, my Lady, the submission for Ms Miller is that the volume of materials before the court, indeed the volume of lawyers before the court, and the eloquence of my friends the Attorney General and Mr Eadie and the Advocate General for Scotland should not be allowed to obscure the basic principles of constitutional law which I say the appellant's argument would violate.

Those are the submissions I want to make, unless there are other matters on which I could seek to assist the court.

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