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

My Lord, we respectfully would not accept that thesis. We would not accept the thesis because we respectfully submit that it has a broader purpose than that. It has the purpose of Parliament intervening to make decisions about what it does and does not want to control. You may say it had a particular focus in doing that. There were particular things that particularly concerned it, but fact of the matter is that it addressed both what it wanted to control, how it wanted to control it, and we know that, when we come to 2011, I know my Lord will say "It is an example of the same beast", but it specifically focused on Article 50 and introduced Article 50(3) in schedule 1, as we know.

Anyway, my Lord, Lord Carnwath, put those matters to my learned friend Lord Pannick. That was his first answer. The second answer was that it is not directly effective and so effect is not given to Article 50 by section 2(1) and Lord Hodge put to me that Parliament had approved the various legislative procedures at EU level and that indeed is true, even though they are international procedures between states and not directly effective in domestic law either. But the point is that Parliament also approved in the same way the non-directly effective provisions of Article 50. So you have a direct, as it were, parallel between those two.

Then my learned friend Lord Pannick finally in answer to Lord Carnwath said Article 50 indicates nothing about the way the Government has to act or Parliament has to act domestically, it simply referred back to constitutional requirements. Our short answer to that is the same one: that is not the point. The point is that the domestic legislation, 2008, 2011, are key parts of those constitutional requirements and they, that is the domestic pieces of legislation and not Article 50 in terms, say a very great deal about the controls Parliament has and has not chosen to impose.

We make effectively the same points in relation to 2011. The whole topic of what to control, the nature of the control is revisited, it is considered afresh and considered with care, and we know that it deals with Article 50 specifically in schedule 1. We respectfully submit the correct analysis is therefore the one that I have indicated.

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