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

My Lords, this, we say, is a red herring in this case. This case is not about flexible constitution at all. It has nothing to do with it. This is about a very clear constitutional point which is the bedrock of our constitution. We do not need to struggle to make the constitution flexible in order to give effect and meaning to that fundamental principle that Mr Gordon and Ms Mountfield and others have talked about.

The flexible constitution point, and the only authority cited in support of this is the Robinson point, was being used by Lord Bingham in a certain way only and we have set this out, if I just skip a bit, on page 11 of the speaking note, at letter J:

"The appellant's submission is built on the idea of a flexible constitution, which is derived from Lord Bingham's very limited use of that concept in Robinson. However, Lord Bingham was only able to refer to the need to adopt flexibility because of the flexibility which he derived from other statutory sections. Robinson is therefore a traditional exercise in construction of a statute, guided by the need to make the statute work in a flexible constitution."

But the appellant seems to be asking the court to go way beyond this, and to drag out of the 2015 Act, when he accepts the language simply is not there at all, but to drag out of the 2015 Act, in combination with some other things which are ministerial statements, some indication that Parliament must have intended to cede its control over this. This is set out in paragraph 25. 25 and 26. But -- okay.

At 25 it says for the purposes -- the appellant's submission really is this. For the purposes of interpreting legislation in order to decide whether the executive has been given a prerogative power, such that this exercise will nullify a large body of laws given by Parliament of our fundamental human rights and freedoms, including exposing people to criminal liability, he says the court is entitled to have regard to (1) what the 2015 Act does not say, as opposed to normal principles of construction of language; (2) to couple that with the appellant's asserted interpretation of a background context, and in particular with statements made by ministers that it would be their intention to act in accordance with the outcome of the referendum, despite other statements to the contrary. (c) to infer therefrom by using this notion of a flexible constitution, and that is all it is, that the Parliament must have intended to confer upon the executive the power to give the Article 50(2) notification, simply on the strength of a vote if it was to leave the EU.

This is a novel and far-reaching proposition, indeed, it is outlandish and seeks to avoid the principle of legality; avoid the words of the 2015 Act; seeks to read in extra words which are simply not there; completely defeats the Hoffmann principle in Simms; and would require, if Mr Eadie is right, actually, and this is bottom of page 9, actually look at a lot of other things like evidence; what did people mean when they said what they did in such and such statement and so on? What did Parliament actually mean? It is just a complete nonsense when one gets into how you are actually about to deal with it.

As to Parliament standing up for -- this is what I will finish on -- as to Parliament standing up for itself, why should Parliament have to say anything? Why should it have to react to what could be politically mischievous conduct -- usurping the executive? Why should Parliament and the judiciary not assume that the executive and the people of this country know the law? Why should it be assumed against Parliament, and against almost half of those who voted in the referendum, and perhaps all of those who did not, that Parliament understood and agreed to the proposition that by enacting 2015 Act in the terms that it did, it was in fact ceding the legal question, the legal decision? Why should that be assumed?

My Lords, my Lady, the other points are simply there set out in the rest of that paragraph and we say in paragraph 27, whilst I accept Lord Reed's point that the notion of a flexible constitution can be useful, this case is about something far, far more fundamental than that. The court may be facing a certain amount of pressure, it is a 11-bench court; this is no time to turn a flexible constitution into a slippery one and let go of its bedrock fundamentals.

My Lord, those are my submissions.

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