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

Yes, I don't invite you to look at it now, but it is a lecture that explains the history of the Hales case, and it is quite interesting, the sort of pressure that the King put the judges under.

So we accept that those authorities are not conclusive. Some of them relate to varying common law rights, and we are talking about varying statutory rights; some of them are only indicative, and none of the older authorities are judicial in nature. But we say that they do provide at least a clear indication that there is an orthodox position on this question.

The later cases we refer to, or authorities we refer to, are judicial. Can I also add to my list Higgs, which was cited by Lord Pannick; that is V21, tab 260, MS 7231, the speech of Lord Hoffmann. We also invite your attention to the view of Sir William Holdsworth, the Vinerian professor of English law, in an article in the 1942 Law Quarterly Review, volume 33, tab 456, MS 11316.

He starts by observing that Blackstone's statement to the effect that there were no limitations on the treaty-making power of the Crown was not an accurate statement of law in the 18th century:

"Two very definite limitations upon it were then and are now recognised. Though the Crown and the Crown alone can make a treaty, if the terms of the treaty involve the imposition of any charge on the subject or an alteration in the rules of English law, they cannot take effect without the sanction of Parliament. These two limitations are the result of the constitutional settlement effected by the great rebellion and the revolution."

We say the appellant has simply failed to engage with this material or to provide any authority that, properly read, rebuts it.

Having undertaken this historical enquiry, we ask: can the appellant's case on the existence of a prerogative to change the law be sustained? As Lord Camden said in Entick v Carrington: if it be law, authority for it will be found in our books; but there is not any, and the silence of the books disproves the appellant's case on this point, which is the point that he invites you simply to assume in his favour.

It follows, we submit, that the foreign relations prerogative cannot be used to change the law or to vary the sources of law which apply in the domestic sphere.

We submit that once the European Communities Act has become law and the European Union treaties have effect as sources of UK law, prior parliamentary authorisation is required to enter into or to resile from an EU treaty, and the provisions of the European Communities Act cannot be dispensed with in any other way.

We say that is an absolutely basic constitutional principle, what one of the constellation of professors on the UK Constitutional Law Association blog described as "constitutional law 101". So it is perhaps unsurprising that when modern judges have even fleetingly considered the issue of the United Kingdom leaving the European Union, they have not considered it as some point to be determined or left over for argument in some later case, but simply assumed that any decision on withdrawing from the European Union would be one for Parliament.

I am not going to go through the references, they are on our written case at paragraph 27: four cases, the dicta of three eminent constitutional judges. We have set out there what Lord Dyson said in the Shindler case. Mr Eadie suggested that it didn't -- Lord Dyson was not suggesting it would be for Parliament to decide whether the UK would leave the EU, that is not our reading of paragraph 19; but I do accept, of course, that none of these was a case where the judge was being called on to decide the point, but I do say it is significant that what these judges assumed was consistent with what I say was the orthodox position; I do say it is significant that are no dicta to the contrary.

That is the end of my first point. There is no prerogative power to change the law, there is nothing to abrogate. Mr Eadie's submissions on the De Keyser principle are, as Mr Gordon suggested, in effect to say that the Government can change the constitution in a radical way, because Parliament has never said that it can't.

Or, to put it at a perhaps more facetious level -- we are on the last day of the case -- Mr Eadie's submissions are the equivalent of arguing that because none of the attempts to catch the Loch Ness monster succeeded, the Loch Ness monster still roams free.

So I turn to my second proposition which is that -- sorry, before that, I should say that if I were wrong on that, and I did need to rely on the principle of abrogation, then we would say that the European Communities Act did abrogate or clamp any prerogative power which may have existed; and if I did need it, and I say I don't, there are alternative submissions on that in our submissions for the first instance hearing, at paragraphs 29 through to 50. They start in the first core volume at 12152, and we would rely on those if we needed them.

The second point then is to say, well, if there is no power to dispense with or change the law, would the appellant, if he triggered Article 50, in fact dispense with law and remove EU law rights? We say yes. We say this firstly because EU law is part of domestic law, so far as this court is concerned. The reason it is part of domestic law, and the only reason it is part of domestic law is because the core Parliament has so willed.

That is the consequence of our dualist legal system and the rule of recognition; it is supported by the observations of Lord Mance in Pham, which are in paragraph 27 of our written case, and also by Lord Reed in HS2, paragraphs 78 to 79, which are at MS 535. We assume that that is common ground, but Lord Pannick took you to section 18 of the European Union Act 2011, and it is worth pointing out, if I dare make one more citation from Hansard, which has not always gone down well; but the Halsbury's Statutes edition at section 18, on page 153, does note Lord Howell introducing the bill, and saying that: the common law is already clear on this, Parliament is sovereign, EU law has an effect in the UK because, and solely because Parliament wills that it should be; the purpose of this section is to put that beyond speculation.

My Lord, Lord Kerr said: what is article 18 doing; it is putting what is already the common law beyond speculation, so it has a declaratory effect.

So any suggestion, we submit, that EU law, the law of the treaties and the rights arising from time to time under the treaties is in some way not domestic law is contrary to the express statutory provisions which confirm the pre-existing common law.

But despite this common ground on the rule of recognition, the appellant's case is that EU law rights are nonetheless not domestic rights, because, he says, they are contingent on an exercise of executive prerogative to have any life at all. The executive chooses not to exercise the prerogative to bring those rights into play or to take away the ball, they are not rights anymore.

So again, I use the language of a vessel, he says that when Parliament passed the European Communities Act in 1972, it just created an empty vessel which the minister could at any time fill or empty at will by using his foreign relations prerogative. If that was the case, I submit it is the broadest Henry VIII clause in history. But on his case, the Secretary of State says that except so far as he was constrained by post European Communities Act statutes, then at any time he could have increased the flow of EU law or decreased it or turned it off altogether, without any need for further statutory authority, through what he described as the conduit, section 2(1) of the Act.

So if the appellant decides to leave the EU, he suggests, as I understand it, that that is not dispensing with the law, because the European Communities Act can stay on the statute book, and so can any EU law rights which exist under the treaties. It is just that the treaties have become a nil class(?) because they no longer apply to the United Kingdom.

That is his argument, as I understand it, but it is not right, and it is not right on the language of the Act, and it is not right when you look at statutory intention. On the statutory language, we accept that this is an ambulatory statute, but it is not ambulatory in the way that the appellant says it is. We deal with this in our written case at paragraphs 55 to 58, MS 12500, but what we say is that section 1(2) of the Act sets out a list of what the treaties are, for the purposes of the European Communities Act, and the treaties, capital T, are treaties specified by Parliament in primary legislation. That is the source of the law in the domestic sphere, and that is a matter which is in control of Parliament. If it's not a capital T, treaty, as defined by Parliament, it is not a treaty.

In section 2 of the Act, section 2(1) provides for what the effect of those treaties will be in domestic law. Although it is very familiar, and we have gone through it a lot of times, can I just ask you to turn it up while I talk about it. It is in MS 18 in the first core volume, and it says that:

"All such rights, powers, liabilities, obligations ... from time to time created or arising by or under the treaties" --

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