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

We drafted constitutions for the world after about 1787, and it is only in the 19th century when you get to the Hansard debates that you start debating the virtues of an uncodified constitution.

So where do we go to from all this?

Well, concluding the submissions I make, and I may just finish early with luck, there may be a temptation with the mountains of legal authorities with which this court has been confronted, to think that the issues involved in these appeals are complicated. We suggest they are not.

The dispensing principle is one of the most fundamental constitutional principles that we have. Its existence is not in dispute. The case law on it is clear. The Government's confusion about the effect of that case law does not in any way obscure the clarity of the principle.

As to the Sewel convention, its effect is equally clear, once it is accepted as we submit it should be that the common law as to the scope of prerogative power has to be applied to our modern and evolving constitutional arrangements. Devolution is at the very core of those evolving constitutional arrangements, and also at the core is the developing notion that an unwritten constitution does not mean the lack of a constitution.

The development of the idea of constitutional statute applies full force to the various statutes giving effect to the devolution settlement in Great Britain since 1997. With that idea comes with the common law corollary that one cannot have implied repeal of a constitutional statute.

Yet in essence, the Government's case as it applies to Wales is that the framework of devolution in Wales may be, by the prerogative, stripped back and radically altered without any statute at all, in disregard of processes designed to ensure the stability of devolution, simply in order to give effect to the popular will expressed in an advisory referendum. That is, we say, not the reflection of a modern constitution; it is a reversal to a wider exercise of prerogative power and has existed for several hundred years.

My Lords and my Lady, I am going to finish 10 minutes early, and in doing so, unless the court has further questions, I have been asked, a request that I only too happily assent to, to devolve my extra time to Ms Mountfield.

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