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

The reason I have started here, I have to go a bit, but the reason I have started here is because I am aware, I am well aware that the point has been made on a number of occasions by Lord Sumption, with the usual conviction and convincing nature of it, but with the reason I started there is because there is quite a fundamental question about basic approach, and about precisely how the court should go about analysing the basic question that I identified at the outset. We do respectfully submit that that is right way of doing it.

Look at the statutory scheme as a whole, don't sweep it away, it is not answered by identifying an uncontroversial, basic constitutional question. The true question is what does Parliament intend looking at that scheme, and can I move to the nature of the approach.

If that is, if you are at that place, and I appreciate that some of you may not be, but if you are, what is the correct way of looking at the legislative scheme, and before you -- if you get to that place, that does not seem to be an unduly controversial issue. We submit that the correct approach to that question is to consider the statutory scheme as a whole (a), and (b) as it exists today.

That means considering as a scheme CRAG and all the relevant EU legislation as it has developed today, and then you ask: having regard to that scheme, would it be unlawful for Her Majesty's Government to give Article 50 notice? The reason that my learned friends don't much like that is because they would much rather stop the clock in 1972, but the fact of the matter is that they haven't really sought to challenge in any significant way that as the correct approach to the question of: how do you go about considering this legislative scheme?

I advanced a whole succession of arguments, none of which have been quibbled with by my learned friends or any of them, as to why that was the correct approach in principle in this appeal. Because the question is about the present state of the division of responsibility between our pillars of state, legislative, executive, and indeed judicial, and that demands a current answer and not a historic one. Because it is a constitutional question that is raised by this appeal, and so it is to be answered per Robinson and Lord Bingham in the light of the current state of the constitutional arrangements.

That is no doubt why the devolved administrations were interested in supporting this approach, because if you freeze the clock in 1972, they don't have their devolved legislation, but we respectfully submit it is correct. It is a constitutional question to be answered in the light of current constitutional circumstances, because it will, we submitted, as you will recall, be wholly artificial to address the question of triggering Article 50 to implement the referendum, without any reference to the very legislation which established the referendum.

Because it is common ground between us that the valid exercise of prerogative powers is a matter to be considered itself from time to time, and according to the legislation then in force; and in any event, and this is quite a long way down the sequence of arguments, because the 2008 Act, to take but one example, amends the 1972 Act.

So even if you were on ordinary principles of legislative interpretation, that would be the right answer, and because, although I don't want to spend too long on this, the in pari materia principle applies. Again, I am not going to go back to the cases that my Lord, Lord Mance identified in relation to that. It might be thought that the true principle to be derived from those cases is, it all depends what you mean by materiae(?). But my Lord will have his own views on that, I am sure, not assisted we respectfully submit, by another case which I lost in this court, called JB (Jamaica), which some of you may recall well.

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