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Old 06-12-2016, 13:15
d'@ve
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Interesting questions by the judges at the end of the Scottish advocate's arguments. Suggesting that if we considered the case from the viewpoint of abuse of power (of the RP), e.g. if a week after the 1972 Act was passed, the RP was used to leave the EU (ignoring the non-existence then of A 50), he suggested that would be an abuse of power - though if it occurred after Wilson held a hypothetical referendum, which voted "Leave", it might not.

Scottish advocate responds by agreeing... pointing out that this is in effect what we are faced with now - therefore, the exercise of the RP after the 'Leave' referendum , he suggests, would not be an abuse of power.

That, to me, seems to be the strongest argument so far in favour of the Government's appeal - yet it was raised by the judges. They may of course have been playing devil's advocate but it does show, I think, that the judges may have a better grip on what the real issues are than the lawyers. They are definitely on the ball with this one.
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Old 06-12-2016, 13:31
HR Guru
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Interesting questions by the judges at the end of the Scottish advocate's arguments. Suggesting that if we considered the case from the viewpoint of abuse of power (of the RP), e.g. if a week after the 1972 Act was passed, the RP was used to leave the EU (ignoring the non-existence then of A 50), he suggested that would be an abuse of power - though if it occurred after Wilson held a hypothetical referendum, which voted "Leave", it might not.

Scottish advocate responds by agreeing... but then seems ironically to support the Government's case by pointing out that this is in effect what we are faced with now - therefore, the exercise of the RP after the 'Leave' referendum , he suggests, would not be an abuse of power.

That, to me, seems to be the strongest argument so far in favour of the Government's appeal - yet it was raised by the judges! They may of course have been playing devil's advocate but it does show, I think, that the judges may have a better grip on what the real issues are than the lawyers. They are definitely on the ball with this one.
You do understand that the Scottish advocate you refer to was arguing on behalf of the UK government?
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Old 06-12-2016, 13:31
allaorta
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I find it baffling that none of our resident Brexiters have bothered to even acknowledge my lengthy post from this morning.
Perhaps the got fed up with your constant posting, yesterday, and though you'd need to work today in order to earn that fantastic £80 per hour, or do you earn that for posting on her?
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Old 06-12-2016, 13:40
d'@ve
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You do understand that the Scottish advocate you refer to was arguing on behalf of the UK government?
Yes, I got in a bit of a muddle there, edited for clarity.
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Old 06-12-2016, 13:57
Orri
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Interesting questions by the judges at the end of the Scottish advocate's arguments. Suggesting that if we considered the case from the viewpoint of abuse of power (of the RP), e.g. if a week after the 1972 Act was passed, the RP was used to leave the EU (ignoring the non-existence then of A 50), he suggested that would be an abuse of power - though if it occurred after Wilson held a hypothetical referendum, which voted "Leave", it might not.

Scottish advocate responds by agreeing... pointing out that this is in effect what we are faced with now - therefore, the exercise of the RP after the 'Leave' referendum , he suggests, would not be an abuse of power.

That, to me, seems to be the strongest argument so far in favour of the Government's appeal - yet it was raised by the judges. They may of course have been playing devil's advocate but it does show, I think, that the judges may have a better grip on what the real issues are than the lawyers. They are definitely on the ball with this one.

So an advocate representing the Government admits that what's being discussed is a potential abuse of power?
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Old 06-12-2016, 14:24
d'@ve
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So an advocate representing the Government admits that what's being discussed is a potential abuse of power?
No, he's saying the opposite, because of the referendum result. My point is that he was led to that comment by one of the judges; they are on the ball.
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Old 06-12-2016, 14:27
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Wow wow wow!

I really didn't think it could get any worse but Northern Irish Attorney General (on behalf of the UK government) has just insisted that the GFA is a "political agreement, not an international agreement".

Last time I checked the Republic also held a referendum on it... and of course it was lodged with UN.

Wow just wow.

I really didn't think they'd stoop as low as implying the ROI is part of the UK.
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Old 06-12-2016, 14:28
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No, he's saying the opposite, because of the referendum result. My point is that he was led to that comment by one of the judges; they are on the ball.
It is the judges' duty to clarify any point made by anyone making representations, which is what they did.
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Old 06-12-2016, 14:31
luckylegs
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The clue lies in the BIB. Let's wait for the representatives of the Scottish government
Yes lets it will be interesting.

But "John F Larkin QC, Attorney General for Northern Ireland, opens his submissions. He agrees with UK government that no legislation is needed."
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Old 06-12-2016, 14:33
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Yes letsmit will be interesting.

But "John F Larkin QC, Attorney General for Northern Ireland, opens his submissions. He agrees with UK government that no legislation is needed."
Well of course he does. He was called upon by the UK government to argue their case.

I'm more worried about the fact that he seems to imply the ROI is part of the UK. Not sure how that will go down with a. the judges and b. the ROI!
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Old 06-12-2016, 14:38
luckylegs
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LOL

https://d2kmm3vx031a1h.cloudfront.ne...%20%281%29.jpg
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Old 06-12-2016, 14:48
luckylegs
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Well of course he does. He was called upon by the UK government to argue their case.

I'm more worried about the fact that he seems to imply the ROI is part of the UK. Not sure how that will go down with a. the judges and b. the ROI!
Yes I know that. That is why he is called the Attorney General.
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Old 06-12-2016, 15:12
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Ah and the Hansard snippets come out well done Mishcon.

Scottish amendment was refused because "it makes no sense in the context of the Bill. The legislation [the ref Act] is about holding a vote; it makes no provision for what follows"

http://www.publications.parliament.u...50616-0002.htm

Parliament never ever decided to grant RP to government and was always under the impression that it was for Parliament to deal with the result.
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Old 06-12-2016, 15:12
Jellied Eel
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You got that the wrong way around. Please name one power that can't be devolved because of EU membership.
Ok, so foreign policy, defence, trade, public spending.. Then more obscure ones like spectrum management or rights to satellite slots. Or perhaps more topically, obligations under Maritime Law & UNCLOS.
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Old 06-12-2016, 15:16
HR Guru
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Ok, so foreign policy, defence, trade, public spending.. Then more obscure ones like spectrum management or rights to satellite slots. Or perhaps more topically, obligations under Maritime Law & UNCLOS.
None of them could be devolved under UK law? Public spending is partly devolved and it is news to me that the EU keeps us from devolving more to the nations but I'm sure you have proof for that?
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Old 06-12-2016, 15:19
Net Nut
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Most brexiters won't be able to follow this - too detailed and factua.
and
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Old 06-12-2016, 15:21
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Pannick is trashing the government. Prepared and organised. That's what a good lawyer looks like.

Argument, case law, proof, bang, argument, case law, proof, bang.

"The prerogative power ends where domestic law rights begin."
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Old 06-12-2016, 15:29
Orri
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None of them could be devolved under UK law? Public spending is partly devolved and it is news to me that the EU keeps us from devolving more to the nations but I'm sure you have proof for that?
Maritime Law is devolved, that's why the sea border was redrawn to settle in advance any jurisdictional disputes should differences arise once Holyrood took over responsibility for Scots Law.

The substantive maritime law in Scotland is generally, but not quite entirely, the same as the English law.
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Old 06-12-2016, 15:30
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Maritime Law is devolved, that's why the sea border was redrawn to settle in advance any jurisdictional disputes should differences arise once Holyrood took over responsibility for Scots Law.

The substantive maritime law in Scotland is generally, but not quite entirely, the same as the English law.
Sorry missed wartime in Eel's post. Not that it matters... it's devolved and there's no issue with the EU.
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Old 06-12-2016, 15:37
Jellied Eel
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None of them could be devolved under UK law? Public spending is partly devolved and it is news to me that the EU keeps us from devolving more to the nations but I'm sure you have proof for that?
Some elements can be, but anything bound by treaty binds the UK.. And thus Scotland by extension. Public spending/borrowing is (allegedly) limited by the EU, so excessive borrowing could result in the UK getting punished.

Then there's stuff Remnants assured us would never happen, like the creation of an EUArmy and funding committments towards that and defence R&D. At the moment the UK is bound by that, and defence is a reserved matter. But Scotland may be expected to contribute towards our spending commitments imposed by the EU. Same with things like UNCLOS given that's a UN treaty and Scotland isn't a member.. but is expected to follow treaty obligations.

Or we could find out that as a result of this case, those treaties shouldn't have been executed and will all have to be done again, with the devolved regions having their say.

Or using examples of legislation that A50 potentially affects, Scotland just needs to do it's own legislative review and decide what EU stuff it wants to keep and what to ditch. If those are delegated powers, it would be freer to do what it wants than it is now where it has to implement EU Directives.
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Old 06-12-2016, 15:38
Jellied Eel
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Pannick is trashing the government. Prepared and organised. That's what a good lawyer looks like.
I dunno, and may disagree.. But kinda cool name for a lawyer..

"The prerogative power ends where domestic law rights begin."
Says he.. but who says domestic law rights will be altered?
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Old 06-12-2016, 15:39
Aftershow
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Pannick is trashing the government. Prepared and organised. That's what a good lawyer looks like.
Pannick is a master. I've seen him briefly in court once before, but getting to watch him run through this whole case is truly a rare treat
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Old 06-12-2016, 15:44
Jellied Eel
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Pannick is a master. I've seen him briefly in court once before, but getting to watch him run through this whole case is truly a rare treat
Nah, he's a lawyer..

He goes on to say that although it is up to the government to prove otherwise, he is happy to "bear the burden" of showing that Parliament never intended the government to use the prerogative power in this way.

I think he's been drinking from Russell's teapot.

And for MPs and peers to change their mind since 1972, they would have had to make the "clearest of statements" to that effect - which he argues have not been proved by his opponents.

So prior to the referendum, there was the legislation creating the referendum, and leaflets sent to every home telling us 'out means out'. Repeated at numerous points during the campaign..

I'd suggest that was pretty clear indication of Parliament's intent, at least before the votes got counted and they realised what we reprehensibles had gone & done..

Last edited by Jellied Eel : 06-12-2016 at 15:49. Reason: in keeping with xmas, corrected no l
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Old 06-12-2016, 15:46
d'@ve
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"The prerogative power ends where domestic law rights begin."
Could have sworn I posted that earlier, got interrupted by a long phone call. Glad you did!
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Old 06-12-2016, 15:46
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Nah, he's a lawyer..

He goes on to say that although it is up to the government to prove otherwise, he is happy to "bear the burden" of showing that Parliament never intended the government to use the prerogative power in this way.

I think he's been drinking from Russel's teapot.

And for MPs and peers to change their mind since 1972, they would have had to make the "clearest of statements" to that effect - which he argues have not been proved by his opponents.

So prior to the referendum, there was the legislation creating the referendum, and leaflets sent to every home telling us 'out means out'. Repeated at numerous points during the campaign..

I'd suggest that was pretty clear indication of Parliament's intent, at least before the votes got counted and they realised what we reprehensibles had gone & done..
Rubbish.

This is one of the dozens of Hansard records that show the opposite:

Scottish amendment was refused because "it makes no sense in the context of the Bill. The legislation [the ref Act] is about holding a vote; it makes no provision for what follows"

http://www.publications.parliament.u...50616-0002.htm
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