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

My Lord, it does, I believe, get a mention in our case. I will just check, certainly we have referred to it below but I believe it is in our case as well. I will give your Lordship the reference. It is electronic 5977. This is 17 at 198 -- sorry, it actually starts at 5917 which is the sixth report of the select committee. It is a report with evidence.

If you start, please, at page 5922 and paragraph 6, you will see that the committee wrote to the foreign secretary to ask him to set out the Government's view of how the Lisbon treaty would affect the UK constitution, and his reply is produced and the court will find that at 5974. The relevant passage is at 5977, and it is the final two paragraphs above the heading, "Courts and the judiciary":

"The Lisbon treaty has no effect on the principle of parliamentary sovereignty. Parliament exercised its sovereignty in passing the 1972 Act and has continued to do so in passing the legislation necessary to ratify subsequent EU treaties. The UK Parliament could repeal the 1972 Act at any time. The consequence of such repeal is that the UK would not be able to comply with its international and EU obligations and would have to withdraw from the European Union. The Lisbon treaty does not change that and indeed for the first time includes a provision explicitly confirming member states' rights to withdraw from the European Union."

That then led to the committee's relevant conclusion in paragraph 95 of the report itself, which is at 5943. In paragraph 95 the committee say this:

"We conclude that the Lisbon treaty would make no alteration to the current relationship between the principles of primacy of European Union law and parliamentary sovereignty. The introduction of a provision explicitly confirming member states' rights to withdraw from the EU underlines the point that the United Kingdom only remains bound by European Union law as long as Parliament chooses to remain in the Union."

Now, in our submission, that explains at a general level why there was no need for any parliamentary control under article -- control of Article 50, under section 6 of the 2008 Act. Because Parliament was proceeding on the basis that under the doctrine of parliamentary sovereignty, it was for Parliament to decide whether or not to remain in the EU.

So my Lords, that is the position in relation to the 1972 Act. The point can also be illustrated in relation to the European Elections Act 2002 and there, I don't ask you to turn it up but for your note it is at core volume 1, page 128, electronic 4434, the rights granted under that Act, rights to stand for election and to vote, are conferred by the 2002 Act itself.

There is no reference made to rights deriving from a different legal system, or rights obtained in any other instrument; in other words, the source of the rights in every sense is legislation enacted by Parliament. And that is all that is required to engage the doctrine of parliamentary sovereignty.

I have already dealt with the existence of the European Parliament point and my learned friend, Lord Pannick, has dealt with the other point which arose on this, which is the rights are contingent on the executive deciding to exercise the prerogative to withdraw. That, as Lord Pannick submitted, simply begs the question of whether the executive can give an Article 50 notification without the approval of Parliament.

For parliamentary sovereignty -- so far as the 2002 Act is concerned, the rights which are granted to citizens take effect of and function under the domestic legal order. It is precisely because those rights take effect under the domestic legal order that the principle of parliamentary sovereignty has been engaged. It is important to note that the "from time to time" argument could not in any event work in relation to the 2002 Act, and nor could the supposed impact of the advent of Article 50 have any impact on the 2002 Act, because the point there is there is no warrant to make those rights contingent on the introduction of Article 50; the 2002 Act is such that the rights are set out in stone.

So just before the short adjournment, I can now return to the core of my stage two argument, which is that once it is understood that the source of the relevant rights in domestic law is primary legislation passed by Parliament, then the legal effect of the appellant's concession in paragraph 62A of his case can be properly understood, because what it amounts to is that rights granted by Parliament under primary legislation will undoubtedly and inevitably be lost or removed by notification under Article 50.

Not just EU law rights, but rights granted by Parliament under acts of Parliament.

So that brings me to stage three which is whether Parliament has authorised the executive to bring about the inevitable loss of rights. Under the doctrine of parliamentary sovereignty, the authorisation of Parliament is needed because only Parliament can override, set aside or nullify legislation. It is important here to underline that the appellant does not claim any parliamentary authorisation; he says he doesn't need it, he says that the prerogative power suffices.

But this, in our respectful submission, goes back to the flaw in the appellant's argument because the appellant's approach, we submit, betrays a fundamental misunderstanding of the doctrine of parliamentary sovereignty. Looked at through the prism of parliamentary sovereignty, the prerogative is nothing more than a label for executive action. The prerogative can only be exercised through executive action. And executive action is unlawful if it contravenes the doctrine of parliamentary sovereignty, and given that in this case, in our submission, the exercise of the prerogative will lead to this loss of rights in primary legislation, the only question which remains is whether or not there is parliamentary authorisation. And under the doctrine of parliamentary sovereignty, that is the correct approach to the issue, but the appellant seeks to persuade the court to look at matters from the wrong end of the telescope.

The appellant says that the starting point is to look to see whether there a prerogative and, if there is, he says the issue becomes whether or not the prerogative power has been limited by Parliament in the relevant respect.

But that, in our submission, looks at the matter completely the wrong way round, because it turns the doctrine of parliamentary sovereignty on its head. No, once it has been accepted, as it has here, that executive action will override primary legislation, the correct approach in our submission is for the executive to show that Parliament has authorised the loss of rights in question.

It is not a question of looking to see if there a prerogative power which has or has not been limited, it is for the executive to show in clear terms that Parliament has authorised the loss of statutory rights intended to be brought about by this executive action.

So just to finish this point off, in answer to a question my Lord, Lord Reed raised yesterday, and that was whether or not the referendum result could provide a basis for the rational use of the prerogative, if there was a prerogative. Well, we submit this case does not involve the question of whether or not what the appellant proposes to do is a rational use of the prerogative; without parliamentary authorisation, the proposed executive action is not lawful, so there is simply no prerogative at all, in our submission, in that respect.

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