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


"... as in accordance with the treaties ... without further enactment to be given legal effect ... shall be recognised and available in law."

And so on.

That is what a Community law right is, because that is what Parliament says in section 2(1). It is significant, I say, that the words "from time to time" come under the rights et cetera which flow from the treaties and not the treaties; it is the rights from time to time, not the treaties from time to time. The scope of the treaties having been established by section 1(2), the conduit, in section 2(1), is for the rights from time to time under the treaties but not the treaties themselves.

Those have been fixed by Parliament. Given that they have been fixed by Parliament, what follows is that the directly affected rights which are created by the treaties themselves are immutable, rights of free movement and non-discrimination and so on, because they are rights under the treaties; and the treaties are the treaties that Parliament says are the treaties.

So it is true that the content of rights created or arising under the treaties by EU legislative acts like regulations, or directly effective provisions of directives might change from time to time, but insofar as those changes become part of domestic law, that is a result of Parliament's decision in section 2(1) to give automatic effect to EU legislative acts and decisions of EU legislative bodies. It is not the direct consequence of the actions of the UK Government exercising its prerogative power in the field of international affairs.

That is the point in the Youssef case which you discussed with some of my learned friends yesterday, the Security Council resolution given effect through an EU regulation. Paragraph 34, which is supplementary MS 679, we consider to be an authority in our favour.

The appellant's reading also ignores the statutory purpose. Lord Mance asked if the European Communities Act was neutral as to whether United Kingdom was a member of the EU. We say clearly not, and on that point we rely on the submissions of Lord Pannick and Mr Chambers.

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