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

My Lord, you can briefly look at it, or you can look at it in detail. Our answer will be the same. Our answer is that is of course a freestanding piece of legislation, and it will continue to stay on the books, as it were, after withdrawal and after the two-year period, even if no agreement is reached. So it sits a bit like regulations that are made to implement directives but in primary legislative form.

Our respectful submission in relation to the 2002 Act is that its fundamental premise is that we continue to be members of the club, so it is of course different in form, but my answer is essentially the same.

Can I turn briefly to the scheme itself and its relevant components. I have a bit still to get through. I have made my submissions in answer to Mr Green, and whether or not in truth what Parliament was purporting to do in 1972, which is where we start.

My Lord, I am sorry, I am reminded by Mr Coppel very helpfully that we have dealt with, I think, the question, or certainly that 2002 Act in paragraph 63 of our case. Can I leave that there.

I have answered Mr Green in relation to the 1972 Act, and of course one can seek to examine and to imply matters into it, both parties are deeply divided and hold deeply divided views about its effects and about the correct implications for the exercise of the prerogative power to withdraw from 1972.

Of course my learned friend Lord Pannick becomes a bit ambivalent at this point because when he gets to 2015 he insists upon language as a matter of interpretation, but when he goes to 1972, because there is no language dealing with -- jolly good reason -- the exercise of the powers to withdraw or ratify or anything else terms of international plane actions, he is prepared to imply and to look at purpose and effect.

But, leaving that on one side, you know our basic case in relation to the 1972 Act. We submit that the ECA is legislation which was fundamentally designed to implement -- it's an implementing statute -- to implement UK treaty obligations. It was not seeking to control, it contained no provision seeking to control, the prerogative -- in other words, the action by Government on the international plane. There is nothing of that kind in it. So that is one part of the dual analysis that is of interest.

What about actions on the international plane? The second part of that, the distinct part, is what about domestic rights, how do they all work? My submission on that is it creates rights, certainly, or recognises rights, more accurately, but of a very special kind, contingent, inherently limited, created and taken away on the international plane, as the corpus of rights expands, and contingent at a more fundamental level on the premise, which is our continued membership of the EU, or of the EEC as it then was, and both my learned friend Ms Mountfield and my learned friend Lord Pannick promised, as it were, to answer that feature of the 1972 Act. Lord Pannick promised to answer Finniss, I think is the way it was put, in response to a question that Lord Hughes asked and Ms Mountfield promised that she would deal with that answer, and neither did so. Neither has explained why it is that that analysis is wrong, the Finniss/Millett analysis, contingent or inherently limited rights.

The third point we make about the Act is that its character is not changed by the thought that it introduces a new source of law into our domestic system. It is not changed because that doesn't fundamentally change the nature of the best. A new source of law involves simply asking the same question in a slightly different form. Can you alter domestic legal rights and obligations and, if so, how. We do respectfully entirely agree with the point that was made, I think, by Lord Reed, which is to put to Ms Mountfield, and she accepted it -- and it is significant that she accepted it -- if rights can be created under the prerogative, was the question, do you accept that they can be taken away by exercise of the prerogative? To which the answer which was given was yes, and we respectfully submit that that was a correct answer given to that question.

We do note that it was not, we submit, a constitutional necessity for Parliament to legislate by the ECA as a precondition for ratification, just to focus on that issue which has been addressed and you thought about, I know. True it is that the position was that there were non-binding legislative motions, to put it that way, by the Houses of Parliament that preceded it but it was not a condition of ratification. That is of the essence of the latest Finniss article, which is in our little black bundle, drawing the contrast between the way in which this Act was structured -- it's the long title point -- and the way in which the Bahamas, Barbados and other independence was created. There was nothing in the Act which said you either have a power to or you are required to ratify this treaty. The reason that was done is because it is Governmental practice.

So we respectfully agree with the statement that my learned friend Mr Chambers took you to from the CRAG consultation paper, MS 5282, paragraph 119, where it was said the Government's practice is not to ratify a treaty until all the necessary domestic legislation is in place to enable it to comply with the treaty, since to do otherwise could put the UK in breach of its international obligations. That is a perfectly understandable practice but it is not the same as saying that you need prior legislative authority before you can take that step on the international plane and, with respect to Mr Chambers' submissions and Lord Templeman's article, to which he also took you, is entirely consistent with that analysis. So there is no implication here that the Government could not take steps on the international plane to reverse ratification without parliamentary approval.

We know, linked to this point -- I am not going to go back to the detail of it because you have it in the note -- but we know that in schedule 3 of this very Act, Parliament repealed a series of bits of legislation, including the EFTA Act of 1960. That is precisely an example of the Government withdrawing from a treaty, the EFTA treaty, and it is a far more telling example than my learned friend Lord Pannick was prepared to contemplate. Of course the EFTA convention did not create directly effective rights in the same way as the ECA, but it is an example of the Government giving notice to withdraw from a treaty without the prior consent of Parliament and doing so notwithstanding that leaving EFTA would inevitably bring to an end rights recognised in domestic law in order to comply with EFTA, and then Parliament acting subsequently, as it were, to sort out the domestic legal effects of that Government action on the international plane. So classic dualism in action.

All of that, withdrawal from EFTA, parliamentary intervention thereafter, repealing the 1960 Act and sorting out the domestic legal consequences, and so on, all of that expressly recognised in the very ECA itself, the very Act that we are talking about, so you have an act which is said by Lord Pannick to create implication on withdrawal giving effect by repealing it as the final stage in a sequence of actions which started with Government withdrawing on the international plane from EFTA, and that we do respectfully submit is telling.

You have all those submissions on the 1972 Act and I am not going to go back to those. What I wanted to focus on was the later legislation, because we do respectfully submit that that later legislation is absolutely key to the issues that arise here, and I start with the basic point, which is that later legislation, whether it is CRAG or whether it is the EU specific legislation, is constitutional, to use that sense. You cannot characterise the 72 Act as constitutional without including all the other pieces in the stream of legislation governing this issue. If the one is, the others must be too. We respectfully submit that they are.

So when you are considering issues as to whether you are more like Thoburn or more like HS2, you are truly dealing with understanding how various bits of legislation, all of which can properly be characterised as constitutional, hang together.

I wanted to focus very briefly on two of the pieces of legislation, 2008 and 2011, and ask what do they indicate about the division of constitutional responsibility in relation to the giving of notice under Article 50. That is our issue, and it is on those pieces of legislation that I wanted to focus.

On the 2008 Act, if I may, a couple of short points. Firstly, we know that in 2008, by 2008, Parliament is focused directly and explicitly on the controls that are to be imposed on the exercise of prerogative powers of a variety of different kinds. The controls are explicit and the scheme of control is nuanced. That is significant because it indicates precisely what one would expect -- it is not just whether but how Parliament is to be involved in different types of decision that is covered by that legislation. Previously untrammelled.

Lord Pannick referred to section 6(1)(a) of the 2008 Act and the simplified revision procedure for amending the treaties and sought to dismiss that as indicating merely that Brussels thought that amendment should be easier and Parliament still, in any event, needed to be involved. In fact, for the first time, Parliament had, as it were, power to veto treaty amendments conferred upon itself and of course those amendments are amendments which not only did not involve increases in EU competences, the point that I think Lord Mance put to me on a couple of occasions in opening. It doesn't just go to increasing EU competences. So that is not the sole theme of this legislation. Not only does if not involve increases, but it could not do so. I am not going to take you back to it now, but if you go back to Article 48.6, third paragraph, MS 222, you will see that it positively could not by that process increase EU competence.

So the true significance of this part of it is that this is but part of a raft of controls specifying the thing to be controlled and the nature of that control, and you will recall that section 2 stands in contrast to other bits of the Act and just says motion, "parliamentary motion".

On my learned friend Lord Pannick's case, section 6 has to work, despite the fact that, on his argument, it would reduce parliamentary control. Reduce it down from primary legislation as a requirement to mere parliamentary motion. That is the first significance.

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