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

Yes. The passage I was planning to take you to is only slightly longer; it starts at 2230 in the electronic manuscript. Paragraph 69, six lines down:

"It is for the courts to enquire into whether a particular prerogative power exists or not, and if it does exist, into its extent. Over the centuries the scope of the royal prerogative has been steadily eroded ... as an exercise of legislative power by the executive without the authority of Parliament, the royal prerogative to legislate by order in council is indeed an anachronistic survival. When the existence or effect of the royal prerogative is in question, the courts must conduct a historical enquiry to ascertain whether there is any precedent ... the exercise of the power in the given circumstances. If it is law it will be found in our books."

Then after the citation from Entick v Carrington, Lord Bingham refers to De Keyser and to Burmah Oil and he cites there the passage in Lord Reid's speech which Mr Eadie took you to. He explained why Lord Reid was talking about the prerogative as a relic of a past age:

"I would think the proper approach is a historical one ... how was it used in former times and how has it been used in modern times."

So Mr Eadie and I agree that the correct approach is a historical approach, but I submit that it is striking that despite positively commending that approach to you, Mr Eadie did not undertake any such enquiry, but put his claim for a wide untrammelled prerogative to change the law at the basis of general assertion.

In paragraphs 13 to 23 of our written case which is in the core volume at tab 12, MS 12484 and following, we have undertaken precisely that enquiry. You will have read it, of course, I will not go through it word for word, but in a moment I will seek to draw your attention to some particularly significant parts of it, but before I do that, may I make an overarching observation.

The case before you shows that the appellant confuses two different concepts, which we say should be kept distinct, and it is that confusion which leads to the error in his case. One of the concepts that the appellant submits or advances is uncontroversial, but the second is controversial and we say it is wrong.

The first proposition is that the concept of a prerogative power to affect rights exists. The fact of such prerogative power is not controversial; it is a matter of common law. The appellant submits, and we accept, that there are some residual prerogative powers and that the lawful exercise of some of those powers within their proper boundaries may affect the way in which people enjoy rights.

So, for example, the prerogative to set conditions for Crown servants in the GCHQ case affects what conditions of work those servants have. The prerogative to requisition property where it is necessary to wage a war means that your property rights are attenuated in time of war. That is what cases like De Keysers were examining. Given the scope, and in De Keysers it was an assumed scope of the war prerogative -- any particular prerogative, in that case, the war prerogative -- has that prerogative been abrogated by statute? That is uncontroversial.

The second concept, which we say that the appellant confuses with the first, is the idea of a prerogative power so wide that it changes the law, or suspends or dispenses with the operation of the law, or alters the sources of it. The confusion in the appellant's case, we say, is to equate the existence of a prerogative power which can have an effect on rights when operated within its scope to the existence of a prerogative power to change or dispense with law outside its scope. The confusion results in a submission which we submit is contrary to the most basic principles of our constitution.

Of course there can be actions in use of the prerogative on the international plane which vary the facts to which the law applies. Post Office v Estuary Radio is one example; the prerogative is used to change the territorial waters, the scope of the statute or the effect of the statute changes. The Joyce case is another, you declare war, somebody making a radio broadcast becomes the Queen's enemy and comes within the ambit of the Treason Act.

But we say that is materially different to changing the law which applies to particular facts, let alone the sources of law. For example if the war prerogative includes a power to requisition, as was assumed in De Keyser, that is not the same as empowering the Government in time of war(?) to abolish or alter common law or statutory property rights altogether.

So we dispute the appellant's submission that the prerogative can be used to dispense law, on the basis of the historical enquiry which we have undertaken and set out in our written case. I will take this by reference to the written case, and please could you have it open for this part of my submissions; the relevant passage is on MS 12484 in the second core volume.

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