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

I will not, can I reassure you at once, take you to all of these, but may I start by showing you the first one, which is The Case of Proclamations, which is in the core authorities volume 2, tab 9, MS 225. This of course is a case that precedes the Bill of Rights and concerned the extent of a King's power by proclamation to prohibit new buildings around London. On page 226, about halfway down the page, you see the holding, which is 226 in the electronic manuscript:

"The King, by his proclamation or other ways, cannot change any part of the common law or statute law or the customs of the realm."

Then at the bottom of the page, they look at some cases. Four lines from the bottom, Lord Coke observes that:

"We do find diverse precedents of proclamations which are utterly against law and reason, and for that void, and which therefore should not be brought into precedent."

The first example is an interesting one in this context. An act was made by which foreigners were licensed to merchandise within London, but Henry IV by proclamation prohibited the execution of it and said it should be suspended until the next Parliament, which was against the law.

That is the principle of the thing. If by statute it is said people can trade in this country, the royal power cannot be used to suspend that without further parliamentary authority.

That was then put in statutory form in a sense in the Bill of Rights which you have seen, and the Claim of Right, which established that the Crown has no power to dispense with or suspend laws.

So the next step in my historical enquiry is Article 18 of the Acts of Union. I don't think we need to turn it up, it is volume 12, 107. Article 18 is at MS 4161, it is very familiar. But that really puts the point positively, so in the previous authorities it has been said, the Crown cannot dispense; what the Acts of Union say is that only body with power to change the law, at least as far as Scotland is concerned, is the UK Parliament. And in relation to private law we have the question of evident utility, but even in relation to public law, the only body that can change that law for Scotland is the United Kingdom Parliament.

So then we come forward in time to the 20th century, and you'll see in our written case, I will not take you to it, the case of London County Council v The King, where London County Council intended to give a licence which indicated that the Sunday Observance Act was not going to be enforced. That was quashed because Lord Justice Scrutton held in fairly trenchant terms that the London County Council was in no better position than James II in that respect, and we submit nor plainly is the appellant.

It is not in our written case, I have mentioned it, that Lord Hoffmann in Bancoult (No 2), paragraph 44, MS 2225, said that since the 17th century, the prerogative had not empowered the Crown to change English common law or statute law.

Coming forward again in time to Nicklinson, again, I will not turn it up because I know you will be very familiar with it, it is volume 8, 73, 2965, that was the case where it was proposed that in order to give effect to European convention rights, a criminal law, the Suicide Act, would be kept on the statute book but ought to be disapplied by an executive act, a policy setting out the circumstances in which it would not be applied.

That proposition was rejected by my Lord, Lord Sumption on the basis that it would be contrary to the Bill of Rights. He also drew attention to Priti(?), which was a case where an individual dispensation from the law was sought from someone whose husband wanted an assurance that he would be immune from prosecution if he assisted her in suicide. That was said it couldn't be done, because it would be a dispensation with the law on a proleptic basis. That is what we submit a notification under Article 50 would be.

We have also set out some New Zealand and Australian authorities. Fitzgerald was the case we cited to the divisional court. That was the case where it was announced that a statutory scheme would no longer be applied, ending the intended passage of legislation to confirm the policy, and that was held to be an unlawful suspension of the law.

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