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


My Lord, that is the second stage of our argument, and now I can deal with the third stage relatively quickly, because that is simply developing the propositions in our case, which I know the court has seen.

Core proposition one is to be found at paragraph 20 of our case. There are going to be -- there is a dispensation of laws in the Government of Wales Act, and we set out, first of all, the historical support in the books for the dispensing principle. I don't think I even need to say that because it is uncontroversial, but your Lordships will find that and your Ladyship will find that, between paragraphs 23 to 29 of our case.

I did want to highlight, simply because of certain things that were said yesterday, the Bill of Rights, which absolutely enshrines into our constitution, the prohibition against dispensing with laws, so it is very -- if one can be very fundamental, it is fundamental to our constitution, this principle; and another point that perhaps needs to be highlighted, Lord Sumption has mentioned this in the course of questions to Mr Eadie, but I am not sure it has been focused on particularly, the hearing before the divisional court was rights, rights and rights, and we accept that rights of course are very very important.

But the dispensing principle goes beyond rights, and not only does it go beyond rights, it actually goes beyond things like new constitutional orders. You don't have to have a constitutional order or a human right for the dispensing principle to remain the axiom of our constitution.

So we say that the Government has accepted the fundamental nature of the dispensing principle but it simply misunderstands it and misapplies it. Indeed, what Mr Eadie said, I think at some stage, it will be in the transcript, is there was a genuine dispute in this case, and in characteristic fairness he said there is a constitutional issue here, no doubt the dispensing principle exists but we have just misapplied it; and he then says, he then prays in aid for that submission the De Keyser line of cases and for the reasons I have suggested, they are wrong.

As to dispensing, paragraph 31 of our case makes it clear which statutory provisions we are suggesting have been dispensed with in the Government of Wales Act and I don't think it is necessary to go through the details, save to say that 108 and 109 are of major importance, and we cite both 108, I think, and 109, so 108 is at paragraph 32 of our case.

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