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

Yes, can I come back to your Lordship's question after giving the ninth proposition. The ninth proposition is that if we are right so far, the Secretary of State's reliance on De Keyser and the entire statutory scheme following the 1972 Act, that is all the other acts we have been talking about in this case, is also misconceived because it jumps the first stage of analysis. That is the prior constraints.

Coming back to your Lordship's question, I have not elided it, because proposition seven is that we say that use of the prerogative will dispense with laws.

Now, if -- and this is why I wanted to put it in that way -- if we are right about that, we win and the Government loses. If the proper construction of the 1972 Act is that, and I will put it in colloquial language and I think your Lordships and your Ladyship will follow it, if there is a clamp on the conduit pipe, so that there are no relevant laws, rights, whatever, that could ever be dispensed with, then I would accept that the Government would win the case.

In other words, there is a question of construction, your Lordship are right but may I at this stage seek to clarify a real confusion that has crept into the language of this case, and that is the use of this word "clamp", because there is no relevant use of the word "clamp" that can relate to the prerogative. Either the prerogative exists when the legislation is enacted or it does not.

There is a relevant use of the word "clamp" on the narrow point of construction, as to whether rights are as contingent as Mr Eadie contends for. So using the word "clamp" on prerogative is a very dangerous analytical, in our submission analytical mistake. If we are right on this analysis, the only question for your Lordships and your Ladyship, given the concessions that have been made and given what we know about Article 50, what is the real meaning of the 1972 Act.

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