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

That's correct. He didn't get it.

My Lords, and my Lady, 5024, halfway down the page:

"The matter indeed may be carried a little further, and we may assert the arrangements of the constitution are now such as to ensure that the will of the electors shall by regular and constitutional means always in the end assert itself as the predominant influence in the country ... this is a political, not a legal fact. The electors can in the long run always enforce their will, but the courts will take no notice of the will of the electors. The judges know nothing about any of the will of the people, except insofar as that will is expressed by an act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors. The political sense of the word 'sovereignty' is, it is true, fully as important as the legal sense or more so but the two significations, though intimately connected together, are essentially different."

The final extract is over the page on 5026, five lines from the bottom:

"The electors are a part of and the predominant part of the politically sovereign power but the legally sovereign power is assuredly, as maintained by all the best writers on the constitution, nothing but Parliament."

Now, the appellant says that he does not dispute what he terms the general principle of the doctrine of parliamentary sovereignty, and he goes on to say that nevertheless it is the case that the executive can by the use of the prerogative alter the law of the land, including that set out in statute.

Now, from a parliamentary sovereignty purpose, that striking proposition is, we submit, simply wrong. The doctrine of parliamentary sovereignty is not a general principle, it is the fundamental legal doctrine upon which our constitution stands.

As we have explained in our written case, and as the courts of the highest authority have said over the centuries, the doctrine of parliamentary sovereignty conditions and refines and defines other relevant concepts. Most importantly in this context, the issue and the extent and use of the prerogative.

The United Kingdom's dualist approach to international treaty-making upon which the appellant so heavily relies is a product and a reflection of that fact. The UK's dualist approach exists precisely because the executive cannot alter domestic law by the use of the foreign affairs prerogative and the use of the prerogative of withdrawal. There has to be authorisation by Parliament.

The two relevant authorities for that, which I will not ask you to turn up but I will simply ask you to note, is Rayner, that is core authorities 3, tab 43, page 500 in the report at letters B to D, electronic 1179; and Higgs, which is core authorities 4, tab 260 at page 241 of the report, electronic 7244.

Now, contrary to the submissions made by my learned friend Mr Eadie, parliamentary sovereignty is not a new or a newly discovered principle. It has been well established and operated for over 300 years. But it does not in any way represent a challenge to the way in which the Government operates on the international plane. Nor will it require in the future any parliamentary micromanagement of what the Government does on the international plane. This is because it does not impact treaties which do not require implementation in domestic law. It does not impact on the exercise of power by Government on the international plane which is authorised by Parliament. For example, participation of ministers in the decision-making of EU institutions. The doctrine does not impact on the use of the prerogative in respect of the myriad of examples which are given by the appellant in his case, for example Post Office v Estuary Radio, or in relation to the (Inaudible) of diplomats, so that is stage one.

That brings me to stage two, which is the appellant's concession, which is in paragraph 62A of his printed case, the page reference is 12353, and the concession is that the triggering of Article 50 "will undoubtedly lead to the removal ... rights and obligations currently conferred or imposed by EU law".

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