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

The point that I have just been handed -- it is one of the principle changes, what are we going to do about it?

The 2015 Act, the final part of the jigsaw, and it is against that background, 2008, 2011, that you arrive at 2015. Can I start with two preliminary points, and I am just going to give you references, given the time, if I may. Firstly, the point about whether Lord Dyson in paragraph 19 of Shindler was or was not assuming. We dealt with that in our case below, our skeleton below -- if you really want it, MS 12227 -- but the short point is the one that they were not deciding or turning their minds to that issue.

Secondly, in relation to comparator legislation, because we know the 2015 Act was silent, we respectfully submit that there is a jolly good reason why the AV Act, the Alternative Voting Act, contained the legal consequences within it, and that was because there was no prerogative power to alter the actual voting system, so you needed provisions in legislation to work out what those consequences are. By contrast in our situation at 2015, you have the freestanding source of power under the prerogative to give the Article 50 notice. So we respectfully submit that that is the short answer, that is the short answer to that.

Then Mr Chambers made comparison with the 1975 referendum and how that might have been set up and purported to rely upon a statement by a minister of some ambiguity all those years ago; (a) it was a statement by a minister of some ambiguity all those years ago, is the first answer. The more significant answer perhaps is that that was well before any legislation remotely similar to the 2008/2011 Acts which directly focused on the nature of parliamentary controls over specific prerogative powers and their exercise. So we submit that 2015 sits in the context of 2008 and 2011 and it sits in the context of Article 50 existing. It was the necessary first step in the process of withdrawal, it was the prescribed and the mandated process for withdrawing. If we are going to do withdrawal, that is how we have to do it, and, moreover, the 2015 Act asks the very withdrawal question and sets up the referendum to answer it.

We pointed out that, on the respondent's case, the effect of the 2015 Act was to require the self same question to be put back to Parliament. The very question they asked in the referendum. My learned friends Lord Pannick and Mr Chambers, and I think all of the other respondents, perhaps with the exception of Mr Gill, accept that a single line would do. A single line act would sought the legal problem.

That created a difficulty which Lord Pannick realised. It created a difficulty because that made no sense in the context of legislation in which Parliament had already decided to put that very question to the people in a referendum and had set up an act for the purpose of doing that, and so the answer which he was driven to in order to explain away that constitutional strangeness, to put it at its lowest, was that that might be or might not be the only question that Parliament was interested in. Parliament might be interested in other questions but that is not an answer. It is not an answer because it bears no relation, the possibility that Parliament might introduce amendments and the Lords want to discuss negotiating strategy, all of that, it has nothing to do with his legal case. His legal case is you need primary legislative authority just to give the notice. It is no good saying you have to go back because they might want to ask other questions, that is the solution, as he accepts, to his legal case and we respectfully submit therefore that the answer he gave is no answer at all, and indeed we submit that the 2015 Act speaks volumes about the intention of Parliament.

Is the result of no legal significance? We respectfully submit that would be very surprising and you know what our primary case is, namely that it is consistent with the scheme of legislation. It left the royal prerogative power to give notice in the hands of the Government, it introduced no form of control of the kind we saw in 2008 and 2011, and the reason for that is because the royal prerogative exists and existed to give effect to the outcome of the referendum.

We also say, as you know, alternatively that, even if the 72 Act had the effect that it did on the royal prerogative, the 2015 Act is still highly legally important. A flexibility of the constitution is important -- and I am not going to go back on that, Robinson. It is language and not divination, of course, but you have plenty of language in the 2008 and the 2011 Acts to work through and we know that in the context of the 2015 Act, Parliament chose to set up the referendum as it did.

Can I address one other question just before finally coming to the significance of yesterday's events and that is that no one I think is suggesting that, in our particular context, the foreign affairs prerogative or indeed any ingredient of it has been destroyed. That is not the nature. We are not abeyance. We are a control on exercise. We are not abeyance or abrogation or cutting down or destruction because, even if Parliament had given express authority, that authority would be in nature to exercise the very power, in other words the power on the international plane to withdraw. No one is suggesting that the power to make or unmake treaties, to withdraw from treaties, has gone. So what we are truly dealing with here is not destruction forever, we are -- and it was the Lord Reed analysis I think -- but we are dealing with, on any proper view of it, we are dealing with a situation in which it is the exercise of prerogative that is controlled and, if that is the right analysis, then it is perfectly possible and we respectfully submit the most convincing analysis, if we are wrong on the 72 Act, the most convincing analysis at that stage becomes, if it is all about the exercise of the prerogative, the 2015 Act significance is perfectly obvious, because no one asserts -- and Lord Pannick accepted in questioning with Lord Reed that, if there was power, if the power continued to exist and it was a question of exercise, then after the 2015 Act, no one could possibly say that it was improper or even remotely unlawful for the Government to exercise that particular power.

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