“Just so I follow, are you saying then, that if on 2 January 1973 the government had changed its mind about the desirability of the EC treaties and their full scope in that time and sought to go and negotiate with the other member states and said well, let’s remove the right of establishment from the treaties, and they might say yes, and that would modify what the EC obligations were; that the government would in fact by reason of section 2 of the European communities act have been disbarred from seeking to exercise the prerogative in that way, ie by approaching other states to see if this he would agree to a change in the treatise because it would be such a fundamental change within domestic law”
-Sales LJ to Lord Pannick in argument
“I am troubled by this, Lord Pannick”
-Thomas LCJ to Lord Pannick in argument
It is sometimes foolish to read too much into the reaction of the bench to the submissions of counsel. Many lawyers will have stories of cases where they are convinced that the judge is for (or against) them, only to have the decision handed down give the opposite result.
However, the above exchange (at pp 108-) towards the end of Lord Pannick’s submissions in the Article 50 Brexit litigation on my reading indicates that the government is going to win.
As will be recalled, section 2 of the European Communites Act incorporates into UK domestic law all “rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties”. The point of Sales LJ’s question is what happens if some of those rights are eliminated under EU law by agreement between member states. Does that require further legislation to be given effect?
The answer is clearly no.
So what if those rights etc were reduced to almost nothing (leaving, say, just a directive on banana curvature in force)?
Again the answer is no fresh legislation is required.
And is it any different if those rights etc are reduced to nothing, as would be the result of the government invoking article 50, which is itself part of EU law?