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

I am most grateful, my Lord. My Lady, my Lords. I appear as an intervener, on behalf of the Expat Interveners who are distinctly affected by the removal or the prospect of removal of the rights that will be lost as a result of the triggering of Article 50, rights which Parliament is not able to replicate for them beyond these shores.

In the time I have available, I shall not trespass upon the submissions already made and gratefully adopt those of my learned friends Lord Pannick, Mr Chambers and Ms Mountfield and Mr Gill, and I am rather hoping, my Lords, my Lady, that those submissions that I do not manage to develop fully may develop rather better in the minds of the court than perhaps if I develop them myself.

Briefly the key issue on which I wish to focus is the anterior question identified by Lord Kerr and mentioned indeed by Lord Sumption on the first day, as to whether there was ever any relevant prerogative; and to answer that question by relying, of course, on the principles advanced by Mr Chambers and Lord Pannick and my learned friends, but also specifically by reference to a facet of the 1972 Act upon which attention has not yet fully focused, and that is the conferral of legislative power on the EU institutions. Because of course it is right that the 1972 Act invested rights or conferred rights on individuals and obligations and so forth domestically; but it is also true, and, we respectfully submit, vitally important to a proper understanding of whether there was a prerogative at all; and a proper understanding of the legislation that follows which I will come to, to identify structurally and constitutionally what was happening in 1972 when the legislative competence was conferred on the EU institutions.

In summary our submissions are these.

First of all, Parliament gave its consent to EU institutions with the participation of representatives of member states in accordance with the provisions of the treaties listed in the 1972 Act. It gave its consent to the making of law which would have direct effect, not in the technical term but in the real term, within the United Kingdom.

It gave statutory authorisation to the Government of the day to participate in that process. Indeed it went further; it gave statutory authorisation to representatives of governments of other countries potentially to outvote the United Kingdom and legislate.

It is through the prism of that analysis that we respectfully make one short but, we say, important submission, and that is that the upward-facing facet, if I can call it that, of conferring legislative competence on the EU institutions, reflected a fundamental constitutional change.

It can be summarised thus: the legislative power which Parliament was conferring on the EU institutions was, prior to the Act, only Parliament's to confer, because it was only Parliament's to exercise. We respectfully say that, because it was only Parliament's to exercise and only Parliament's to confer upon those institutions, it is only Parliament's to take back. We respectfully say that that analysis is dispositive of the appeal and we respectfully invite the court so to find.

That analysis is also important when one comes to consider the subsequent legislation which your Lordships and my Lady have already heard submissions on, namely the 2008 and 2011 acts, because those acts, properly understood through the prism of conferral of legislative competence and the voluntary limitation of sovereignty of the United Kingdom in that respect, those acts are in fact, to my Lord, Lord Carnwath's points, in pari materia in the sense that, together with this aspect of the 1972 Act, the conferral of legislative competence, those acts regulate the legislative competence so conferred.

My Lords, it is quite important to distinguish between different aspects of that legislative competence and we respectfully say that the appellant starts in the wrong position. Because the acts, because the 1972 Act, specifically lists the treaties to which effect is given in section 1(2), and because primary legislation therefore needs to be amended to add a new treaty to that list, from the very beginning, Parliament had control over whether any additional treaties could be included in the scheme which it created through the 1972 Act.

What is salient about the 2008 and 2011 acts is that Parliament then seeks to control not the addition of treaties but the way in which the legislative mechanisms which it has itself authorised, operate internally within the European Union institutions; and through that prism a picture immediately emerges which we say, with respect to the appellant, is not just inconsistent but irreconcilable with the appellant's overarching case.

The reason for that is this: that we see a picture in the 2008 Act and the 2011 Act, of increasing control where the legislative facility internal to the EU institutions is increased. Therefore Parliament is seeking to control that which might only otherwise have happened by the addition of a new treaty by primary legislation in section 1.

That analysis is quite important because if I can use possibly slightly evocative phrases, the section 1 listing of the treaties, and I respectfully adopt my learned friend Ms Mountfield's submission on this, the words "time to time" that we find in section 2, refers to time to time, the rights derive from the treaties which Parliament has listed in the 1972 act. Section 1 operates as, if I may say so, the castle walls, so that no new treaty may be admitted other than with the assent of Parliament.

Then what the 2008 and 2011 acts are seeking to control is the operation of, without any disrespect to the EU institutions, what some people might view as the Trojan horse provisions, which are quite different in nature. They are provisions where internally treaty changes and competences may be taken by the Community effectively for itself. The procedures are varied, but that is the essence of what those two acts were directed to achieve.

My Lords, it is significant that the ordinary revision procedure which is one of the procedures to which those acts relate, specifically contemplates the increase or reduction of competences which your Lordships will find at page MS 222, core authorities at the very front.

I think those provisions are actually in there because of Article 50 being rather important in this case, but we helpfully have Article 48 beginning at 221 and at the top of 222 --

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