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

My Lord, yes and the point I am seeking to make is not the novelty of the ordinary procedure, but the increasing parliamentary control over participation in the legislative processes of the Union in relation to the use of these various procedures.

So that the underlying submission is simply this, that not only do we respectfully say that the constitutional architecture of the conferral of legislative power that belongs to Parliament upon the EU institutions, not only do we say that that conferral is a very important facet to add to my Lord, Lord Kerr's observation about the point being advanced by Lord Pannick, that investing rights on individuals might be an anterior point by which there could be said to be no relevant prerogative; we say the conferral point puts that almost even more strongly because it was only ever Parliament's power to exercise, only ever Parliament's power to confer and only ever Parliament's power to take back.

But we then go further and say that the direction of travel of the 2008 and 2011 acts, which insofar as they regulate the legislative power of -- the exercise of the legislative power conferred, those acts themselves are swimming in a different direction to that contended for by the appellant.

My Lords, my Lady, we also respectfully say, and I adopt my learned friend Ms Mountfield's submission, that there was a consistent understanding, insofar as one can be discerned, from the courts that it would be Parliament that would decide whether to leave the European Union, as it has now become. In that respect we rely on Blackburn which predates the 1972 Act, because it is in 1971, all the way through to Shindler which postdates the 2015 Referendum Act.

The court will already have identified the materials to which my learned friends Lord Pannick and Mr Chambers have already referred in terms of the green paper and the command paper.

So there was a consistent understanding in the background that it would be Parliament that would leave the European Union. So as to my Lord, Lord Mance's questions as to whether the 1972 Act was neutral or perhaps agnostic as to the United Kingdom joining the European Union, as it has now become -- the European Community as it was then -- the answer, when viewed through the prism of the conferral of legislative power of Parliament, can only be: no, it was not neutral, at all.

The conferral of the sovereign legislative power of Parliament on the EU institutions speaks only to the Act being consistent and only consistent with the United Kingdom joining the European Community.

My Lords, as to the 2015 Act and its significance, my Lady, Lady Hale has already identified, of course, that the Referendum Act did have legal consequences in that a referendum was held and the political significance of that has already been identified. But we would respectfully say that at the moment that Parliament exercises the legislative choices which we say properly belong to Parliament as to the consequence of the referendum, Parliament might do that a number of different ways. Parliament might mandate the Government to trigger Article 50, or it might grant a power to the Government to trigger Article 50.

If it were to grant a power, and I think this maybe speaks to the analysis that my Lords, Lord Reed and Lord Carnwath were canvassing, if it were to grant the Government a power, there is no doubt whatsoever that the referendum undertaken under the 2015 Act would be of very considerable significance in the exercise of the Government's power and the lawfulness of the exercise of that power in deciding, if it did, to notify under Article 50.

But that is a very different matter to the question which is before this court, which is whether or not there is a prerogative power for the Government to notify under Article 50, and that is not the question asked by the 2015 referendum, and it is not the question upon which the people have spoken.

The question before this court is a legal question, and we respectfully say that because of the nature of the 1972 Act in doing everything that has already been described in the field of rights, which are extremely important, but also conferring legislative power on the European Union institutions as it did, for those reasons, the only answer to the question of whether there was any relevant prerogative in 1972 can be that there was none.

This point was squarely before the divisional court, and the sheet of references refers to the relevant part in core volume tab 8 where that point was taken.

We respectfully invite this court to understand the divisional court's treatment of its general appraisal of the normal rules that apply when the Government acts on the international treaty plane, in the exercise of the prerogative powers, as setting the background from which it then clearly distinguished this case, for the reasons that my learned friend and I have hopefully satisfactorily identified as completely distinct. My Lords --

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