He's already cited evidence of the Minister for Europe making a clear statement to Parliament that the referendum was advisory.

Him and the Scottish government guy have been impressive.

Last time I saw him properly was when he was defending the BBC and Thompson when some cretin tried to sue them for blasphemy after broadcasting the Jerry Springer Opera.

The Scottish guy is the only representative of the UK government who at least tried to make a case for the appeal. I wouldn't say he was great.

Not only that... the quote further states that the referendum makes no provision for what is to be done once we have the result... handing back that decision to Parliament.

I.. see.. So when we 60m-ish peons were being told that 'out means out', it really meant Parliament would ignore the result?

Crux is still whether RP can be used to enter, modify or leave treaties without full Parliamentary scrutiny and approval. If the answer becomes 'No', then I suspect there may be problems with more than just Brexit. But again that's why the government has had to appeal.

(citing this result as grounds to quash the Lisbon Treaty would be particularly amusing.)

Article 18 of the Articles of Union goes as follows,

XVIII. ‘That the Laws concerning Regulation of Trade, Customs, and such Excises, to which
Scotland is, by virtue of this Treaty, to be liable, be the same in Scotland, from and after the
Union, as in England; and that all other laws in use, within the Kingdom of Scotland, do,
after the Union, and notwithstanding thereof, remain in the same Force as before, (except
such as are contrary to, or inconsistent with this Treaty) but alterable by the Parliament of
Great-Britain, with this Difference betwixt the Laws concerning public Right, Polity, and
Civil Government, and those which concern private Right; that the Laws which concern
public Right, Polity, and Civil Government, may be made the same throughout the whole
united Kingdom; but that no Alteration be made in Laws which concern private Right, except
for evident Utility of the Subjects within Scotland.

Now it depends on whether the right to work and reside in EU member states is in fact private or public. Certainly if entering into the EU gave us those rights it follows that leaving it removes them. If by private right what was meant was domestic rights then it becomes a bit clearer. Should the government lose its appeal then it becomes a question of how to judge whether a law changing the "private Right" of access to the EU is "for evident Utility of the Subjects within Scotland" . Perhaps the 62% result in the referendum gives a clue to the opinion of those living in Scotland.

The answer won't be 'No.'. It is much more likely to be 'yes, with limits - but it must not be used without express Parliamentary authorisation when domestic law will be significantly modified'. Or something like that.

That's perhaps a sin of omission and where the teapot comes in. So..

Should the United Kingdom remain a member of the European Union or leave the European Union?
( ) Remain a member of the European Union
( ) Leave the European Union

Seems to have confused some Parliamentarians. Hmm.. tricky one that question. Now what are we meant to do?

But this is the problem. Pretty much all treaties do this to some extent, eg

https://en.wikipedia.org/wiki/Ottawa_Treaty

Which prevents me from manufacturing, or using land mines in the UK. Amongst other legislation that may impose limits on that sort of thing for some reason.

ps.. An easy out-

"There is no prerogative power to notify and only an act of Parliament can give such authorisation," he says.

And there just happens to be a Bill for that, ready to go..

Yeah, I have since edited in the word 'significantly'. They would I suspect comment on what that meant in reality. It's hard reasonably to deny that removing an entire body of law (the 1972 Act and its domestic legal implications) would be significant.

That's not what the case is about.

I'm afraid it is you who is confusing process and outcome.

Again that's why it's being appealed. Lawyers really don't like vague things like 'significantly', unless they work in their favor. Plus there's the expected Great Repeal/Wrappping Up Act that may or may not enshrine stuff the EU's given us since 1972 that would still have to go through Parliament.

This bit's just about who gets to pull the trigger, and the precedents set could be.. tricky.

Clutching at straws much??


No one said it would ignore the result. It should take the result into consideration along with all other factors it is aware of to make a sensible decision. If Parliament decides that the result is sufficient to make that decision then that's fine.


That's not the question that needs to be answered. The case is about whether the RP can be used to remove rights granted domestically.


Hardly. Parliament agreed on the question for the referendum, it did not agree to allow government to withdraw from the EU without it saying so FOLLOWING the referendum.


Oh so you had the right, previously, granted to you by domestic law, to manufacture landmines or using them in the UK? Thought not.

That is irrelevant in any event. We've never had any domestic law that specifically granted the right to manufacture or indeed use land mines in the UK... hence the treaty took nothing away.

I think you'll find it is, ie Pannick's focus on intent behind various actions.. Which is a) hard to prove and b) problematic given the clarity shown by the question and campaigning.

Pretty much everything else is procedural.

As I said earlier it's not just law but individual/domestic rights. That latter is where it get's tricky as obviously the UK being outside the EU will need agreement from the EU as to whether UK citizens still retain those rights.

Even simpler given that precedent is everything,

Limitations[edit]
Several influential decisions of the House of Lords have determined the limited scope for the use of prerogative powers. In 1915, an appeal was made to the House of Lords, Re Petition of Right ("Shoreham Aerodrome Case"), but during the appeal the case was settled and the appeal withdrawn when the Crown agreed to pay compensation.[42] The appeal was from a unanimous decision of the Court of Appeal that the Crown, both under the statutory Defence of the Realm Regulations and by the royal prerogative, was entitled to take and occupy, for military purposes in wartime, a commercial airfield on the south coast. The government argued that this action was to defend against an invasion; the courts held that for the prerogative to be exercised, the government must demonstrate that a threat of invasion exists. This was backed up by The Zamora (1916),[43] where the Privy Council, on appeal from the Prize Court, held generally that to exercise a power not granted by statute (such as a prerogative power) the government must prove to the court that the exercise is justified.[44] The next decision came in Attorney General v De Keyser's Royal Hotel Ltd (1920),[45] where the House of Lords confirmed that a statutory provision in an area where prerogative powers are in use "abridges the Royal Prerogative while it is in force to this extent – that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance".[46]

This principle of statutory superiority was extended in Laker Airway Ltd v Department of Trade, concerning the revocation of a commercial airline operator's licence (December 1976),[47] where it was confirmed that prerogative powers could not be used to contradict a statutory provision, and that in situations to which the power and the statute both applied, the power could only be used to further the aim of the statute.[48] Another extension came with R v Secretary of State for the Home Department, ex parte Fire Brigades Union,[49] where the Court of Appeal held that even if a statute had not yet come into force, the prerogative could not be used to alter this statute to "conflict with Parliament's wishes".[50]

Usual caveats,

It all boils down to the fact that having contended that should it come to it the Government feels certain it could force a vote through Parliament the Government have demonstrated that there's no need to use RP simply for their own convenience. That in turn means that their insistence on it in this instance is an abuse of power.

By the looks of it, it may not just be about this as the argument has been made that the ECA was made BEFORE signing the treaty so logic would dictate that the GRB must be enacted prior to leaving the EU.

The court might well rule that exactly that must happen.

Actually.. we did. One could (and still can) apply for a licence to manufacture, test, store and sell all sorts of things that can go <bang>. But not land mines any more..

Please show me the relevant legislation that applied to land mines and it's current state where this reference has been removed.

I think it's more a test of power, especially as the limits of RP have been challenged.

The Treaty doesn't prevent you from manufacturing or using land mines. Domestic legislation (the Landmines Act) does.

Here's an example-

http://www.publications.parliament.u...5w12.htm_sbhd4

Now go look up Russell's teapot..

It was a political agreement not a treaty. That is the point.

It relates to the governance and rights of the people so Northern Irelamd which is part of the U.K. The Irish needed to make changes as their constitution regarded the North and its citizens as being part of the Republic not the UK.