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

Yes, I will just draw your attention to the case about the end of the Seven Years' War, and Chalmers' "Opinions of Eminent Lawyers". I will not take you to the point case, but the case arose as a result of the treaty of Paris at the end of the Seven Years' War and although -- before the Seven Years' War, Newfoundland had been a British territory but French fishermen had had historic fishing rights there, from the treaty of Utrecht. Those were preserved at the end of the Seven Years' War by the treaty of Paris. But almost immediately after that, the Crown wanted to amend the treaty of Paris.

So it asked the law officers if they had -- if it had power to do that, whether the Crown could legally enter into and had any power to endorse such regulation. The law officers said that the Crown could not do that. The reason why not was because it was considered that the articles of the project were not consistent with the 10th and 11th acts of William III, which are not in the bundle but you can have them if you want them. That was the policy of that Act and it was inconsistent with the purposes of the legislation.

The reason I draw your legislation to that one is because it was not about only the rights of British subjects, or indeed necessarily on soil that was protected by Britain. It was about using a treaty power to amend that which was seen to be the purpose of a statute, and it was said that that couldn't be done.

Then we have George III adopting an act of Parliament to enable him to enter treaties to end the wars with the American colonies, because he was not sure, or because I invite you to find that it was assumed that he would not have power to do that, cutting across domestic law rights in the absence of an act of Parliament.

Then we have the Phillimore principle that my Lord, Lord Pannick took you in the Parlement Belge case. It is worth observing that that -- Sir Robert Phillimore's judgment's in case was in fact overturned on appeal, but the reason it was overturned on appeal was because the Court of Appeal considered that the prerogative did extend to deciding that a ship was a property designated for public purposes, and that was a conclusive fact. Once that was decided using the prerogative, that was a fact that altered the application of the prerogative, but it was not to take away from the general principle that Sir Robert Phillimore had set forward.

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