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

My Lord, the reference to Youssef, as your Lordship very kindly pointed out, is in tab 496. At paragraph 34 of the judgment, supplementary electronic page 693, it was the Secretary of State who exercised prerogative powers at the international level to sanction or to list Mr Youssef on the sanctions list. The effect of that was to cause alterations to his domestic law rights under the EEC regulation 881, or EU regulation 881, which of course comes into English domestic law through section 2(1) of the 1972 Act. So it is no different in our submission to any European Union law which is given domestic legal effect through section 2(1).

My Lords, I am going to go back to my stage three, and that is parliamentary authorisation. In our submission, there is nothing in the 2015 Act which could provide parliamentary authorisation, whether it is viewed through the prism of the prerogative or parliamentary sovereignty. Parliament passed the 2015 Act knowing full well that in our system of representative parliamentary democracy, referendums are not legally binding.

That was the legal position back in 1975, when the 1975 referendum was held on then EEC membership, and the 1975 Referendum Act is in volume 12 of the authorities at tab 111, electronic 4213. The reason I am taking you to that is because it is in materially identical terms to the 2015 Act, which is in core authorities 1, tab 7, electronic 1601.

Both are in section 1 and both say:

"A referendum is to be held on whether the United Kingdom should remain a member of ..."

"the European Union" for 2015, or "the EEC" for 1975.

Under the terms of the 1975 Act, in our submission, the 1975 referendum was not legally binding. This is clear from a variety of sources but I will take the court to two, if I may. The first is Professor Vernon Bogdanor's book, "The new British constitution", which the court has in volume 15 at tab 168. That is electronic 5308.

Unfortunately the front page to the book is missing, and we can have that copied, but "The new British constitution", Professor Vernon Bogdanor, 2009.

This is in chapter 7, the referendum. The relevant passage is at 5325. It is the last paragraph on 5325:

"In countries with codified constitutions, the outcome of a referendum generally binds both Parliament and Government. In Britain, however, with an uncodified constitution, the position is much less clear. Although neither Parliament nor Government can be legally bound, the Government could agree in advance that it would respect the result, while a clear majority on a reasonably high turnout would leave Parliament with little option in practice other than to endorse a decision of the people. Shortly before the European Community referendum in 1975, Edward Short, then leader of the House of Commons insisted to the House that 'this referendum was wholly consistent with parliamentary sovereignty. The Government will be bound by its result but Parliament of course cannot be bound'. He then added 'although one would not expect honourable members to go against the wishes of the people, they remain free to do so'.

"That was an accurate statement of the constitutional position only on the assumption that Short meant that the Government would be morally bound. It could not be legally bound for in the purely formal sense, it was still the case that the British constitution knew nothing of the people."

There are echoes of Dicey there which I took the court to this morning.

At footnote 19 there is a reference to Mr Short which I would like to take the court to; it is volume 17 at tab 195. Electronic reference 5904, it is volume 17, tab 195. This is the Lord President of the council and the leader of the House of Commons, Mr Edward Short, and the relevant passage is at 5905, the very top of the page:

"I understand and respect the view of those devoted to this House and to the sovereignty of Parliament who argue that a referendum is alien to the principles and practices of parliamentary democracy. I respect their view but I do not agree with it. I will tell the House why. This referendum is wholly consistent with parliamentary sovereignty. The Government will be bound by its result but Parliament of course cannot be bound. Although one would not expect honourable members to go against the wishes of the people, they remain free to do so. One of the characteristics of this Parliament is it can never divest itself of its sovereignty. The referendum itself cannot be held without parliamentary approval of the necessary legislation, nor, if the decision is to come out of the Community, could that decision be made effective without further legislation. I do not, therefore, accept that the sovereignty of Parliament is in any way affected by the referendum."

Then, to follow the history through, we have the Government's response to the House of Lords select committee's report on referendums of 2010. The court will find that in volume 18 at tab 201. That is electronic reference 6265. Tab 201, 6265, this is the fourth report of 2010 to 2011, the Government response to the report on referendums in the United Kingdom, published on 8 October 2010.

This report is incorporating the Government's response to the select committee's report on referendums. What the committee does is it sets out its conclusions and the Government's response to each of its conclusions. The relevant page is 6275, where, if you go to 6275, you will find two columns, one headed "Recommendation" and one headed "Government's response". It is recommendation number 3 on that page, the third one down:

"We recognise that because of the sovereignty of Parliament, referendums cannot be legally binding in the UK and are therefore advisory. However, it would be difficult for Parliament to ignore a decisive expression of public opinion."

The Government's response was:

"The Government agrees with this recommendation. Under the UK's constitutional arrangements, Parliament must be responsible for deciding whether or not to take action in response to a referendum result."

Then to complete the story, we also rely on the House of Commons briefing paper, which was referred to in paragraph 107 of the divisional court's judgment. The briefing paper is also in volume 18 and it is in the next tab, 202. The electronic reference is 6279. This is briefing paper number 07212, 3 June 2015. European Union Referendum bill by Elise Uberoi from the House of Commons library.

If you go to 6281, under "Summary", the bill was introduced in the House of Commons on 28 May 2015 and requires the holding of a referendum on the UK's continued membership of the European Union before the end of 2017.

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