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

Yes, but the relevant passages for your Lordships' note are Lord Justice Rose at MS 10932 and Lord Justice Hoffmann -- I have the internal reference here which is 93 B to 94 F, upholding Lord Justice Phillimore but there are two reasons why I don't draw the whole of that case to your attention. One is time and the other is because the first instance judge who was told he was wrong was a deputy High Court judge, Sir Robert Carnwath sitting as a deputy High Court judge.

But there is an interesting passage in Lord Justice Hoffmann's speech again in there, where he talks about how if the Status of Forces agreement had been a question of domestic law, of course a court could look at it to look at the facts, and to look at -- somebody was a member of the force that had the benefit of that agreement. It was not saying you could never look at a treaty for that factual purpose; you cannot construe it or consider that it confers rights.

What I say is that all those cases are entirely consistent with the passage in the speech of Lord Oliver's in the Tin Council case, which I think has been drawn to your attention by almost every counsel, but what we say is that that is authority for the causal link, between the inability of the Crown to alter domestic law by making or unmaking a treaty, and the prerogative power and the respect that the court will give to that for the power of the Crown to make foreign own affairs, or the executive to make foreign affairs.

They will do it because it confers no rights in domestic law. There is nothing for the domestic court to look at; simply irrelevant as a source of rights.

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