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

My Lord, what I meant by the first time is that this is the first time there is legislative control, which there didn't have to be, on this sort of exercise and this is the Minister of Crown being precluded from doing stuff on the international plane. That is what I meant by the first time. My Lord may be right, it is the first time Parliament has chosen to intervene in this way. It may have been triggered in a particular way but its significance is that, before this, subject of course to the earlier 78 Act and the 2002 Act that I went through earlier in opening, this is the first time they have imposed that control.

So there are really two points about this Act I made in opening, you will recall; (1) they are controlling -- it doesn't terribly matter what it is -- but they are controlling particular things that are the exercise of prerogative powers on the international main, and (2) they are doing so in a variety of different and nuanced ways. This one is parliamentary motion, and go back over to the previous page and there you have examples of primary legislation being required. So it is a different thing that is controlled and it is a different mechanism of control. Look at section 5. So you have got the how and the what. That is the first point.

The second point is that, as we know, Article 50 is introduced in Lisbon. Parliament noted it as a principle change and it approved Lisbon because it increased -- and Article 50 it focused on -- because it increased the competence of the European Parliament. It then decides what to do about. What are we going to do about Article 50? How are we going to control that, or are we? Answer: despite other controls of various kinds, nothing on Article 50, is the short and bald(?) point, and the only proper inference, we respectfully submit, is that Parliament decided therefore to leave this power to be exercised by Her Majesty's Government along with all the other prerogative powers that are not controlled in that sphere by this piece of legislation, day to day business of the foreign affairs prerogative, giving of notice; they were, that is Government were, the only organ which could if physically and legally do so and no control was imposed over that decision, despite the fact that Parliament was directly focused on it in 2008.

We know also in that respect, that Lisbon -- this is perhaps a third point -- including Article 50, was added to the list of treaties in the 1972 Act and approved by Parliament in section 4 of the 2008 Act, and we respectfully submit that that is significant because it is a recognition at the very least thereafter, and pace the debate I had with my Lord, Lord Mance about whether withdrawal was a gleam in the eye of those who signed up to the 72 Act in 72, pace that, it is a recognition of the inherently limited nature of the rights and indeed of the basic structure and purpose of the 72 Act. From now on, the rights in section 2 are inevitably subject to Article 50 and we know that Article 50 is about the fundamental premise, as I described it. It is about withdrawing, the fundamental contingency of withdrawal is now catered for and brought within the statutory scheme.

So we do respectfully submit that that is significant and it is entirely consistent with our scheme of analysis, which is that the royal prerogative powers, which the 72 Act had done nothing to take away, remain, subject to the parliamentary controls, specific and nuanced as they are, in the 2008 Act. It is not a statutory power, Article 50, as such but it involves Parliament in legislation recognising its existence and acknowledging its effect and all of that, we submit, is critical to the consideration of the statutory scheme as a whole and what it tells one about Parliament's intention on the division of constitutional responsibility in relation to Article 50. This was the very mechanism by which the very thing which is now challenged was to be done. Parliament decided, as it did, no control. It so decided recognising because it is absolutely obvious that, if Article 50 notice is given, then the process of withdrawal is commenced, the bullet is fired at the target, with all the potential effects that that has on directly effective rights and obligations and on other legislation like the 2002 Act, whose practical impact may remain or would be, as it were, taken away when we leave the club. But the idea that Parliament didn't know or cannot be taken to have known that that was the effect of Article 50 simply could not be sustained, we respectfully submit.

If the respondents are correct, Parliament always intended that the Government could not give such notice, from 1972 onwards, without primary legislative authority. They say that was the effect of the ECA and, if that is right, given the controls that are introduced in 2008, it is, we respectfully submit, inexplicable why Parliament was not included. They made provision for the sorts of things that required primary legislative authority. Why would they not have included Article 50 within that if that is their view? And it is not an answer to say they were operating on the basis of an assumption that the power could not be used. That, as we know, is a highly controversial and contestable assumption with the debate still raging years afterwards in the Supreme Court with 11 of you listening. It doesn't explain in any event why it is that Parliament would not have set out quite clearly on the face of this piece of legislation that primary legislative authority was required.

My Lord, Lord Carnwath, invited my learned friend Lord Pannick back onto the 2008 turf of the 2008 Act and its treatment of Article 50, and he gave three answers in that exchange, if we have understood him. Firstly, he said Article 50 merely expresses the power that United Kingdom has always had to withdraw from treaties. We respectfully agree but it is no answer to the points I have been making and it is important that he accepts that Article 50 reflects the prerogative power to withdraw from treaties because that was the position on that analysis in 1972 just as much as in 78, but Article 50 is now the mechanism, but point is that answer does not, that answer, address the key significance of this legislation, which is that it imposed a series of controls over prerogative powers, some of them and not this one.

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