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

But even in those circumstances, it would be necessary to appreciate that assuming it was the European Communities Act which had put the prerogative into abeyance, it was also the European Communities Act which created European Union law rights which are described as fundamental rights, and also created rights which -- or a scheme of law which was being described as constitutional by our courts.

So it would be necessary to accept, as this court has recognised, that the European Communities Act and the devolution acts are constitutional statutes. That means that if some later statute were to operate, so as to undo the effect of the European Communities Act and to bring back the prerogative which had been previously held in abeyance, it would require clear and express statutory language to do that.

That language would be required under the principle of legality, the Simms principle, and also because of the principle set out in relation to constitutional statutes by Lord Justice Laws in Thoburn. There is no such express language, and to hold that the 2015 Act by implication had such an effect, that would be an act of judicial legislation.

If Parliament had intended a particular result of the 2015 referendum to have a particular constitutional consequence, it would have stipulated that, as it had with other referenda, and you have been told about the alternative vote referendum, but may I also draw your attention, without turning it up, perhaps, to the provisions of section 1(2) of the Northern Ireland --

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