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

The cases which the appellant relies on simply do not bear the meaning he ascribes to them. That is in our written case at paragraphs 20 to 23 and we also adopt Lord Pannick's submissions on this point.

May I draw your attention, without turning it up in view of the time, to the McWhirter case, which is in core volume 3, tab 46, and starts at 1847. The appellant relies on this in their written case to suggest that the continued exercise of an untrammelled foreign relations power is specifically recognised in the Bill of Rights. That is right, it does say that, but it doesn't support the appellant's submission that the foreign affairs prerogative is untrammelled, and extends to changing domestic law. Indeed, we say it goes against that.

McWhirter was an application for judicial review, brought by somebody who opposed our entry to the European Union, and he opposed the Crown's decision to sign the treaty of accession, because the Crown was divesting itself of the entire and perfect and full exercise of regal power and government; and that was rejected. But the reason it was rejected was that the signing of the treaty had no effect on domestic law, and because it was the passing by Parliament of the European Communities Act and the subsequent ratification if the bill was adopted, and not the executive act of signing the treaty which would be the basis for the domestic law which would then be applied by the domestic courts.

You see that from the passages that Mr Eadie invited your attention to in the speech of Lord Denning at paragraph 8, and Lord Justice Phillimore at paragraph 8.

Finally, I should mention the Hales case that was raised by Mr Larkin, and on that we say that is a pre-Bill of Rights case, and indeed arguably one of the causes of the passage of the Bill of Rights. It was overtaken by it, and we have put in a short clip of new materials. At tab 3 of that there is an interesting lecture by Professor Bradley about that case where he draws attention to the history, and suggests that the court which gave judgment in that case had been put under considerable external pressure, and the judges had been handpicked by one of the parties to the litigation, the latter of which at least cannot be said about this court.

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