LAWYERS FOR BRITAIN

After last week's High Court ruling there has been a flurry of comment, mainly from outraged brexiteers about the courts "interfering" in a political process. Brexit Central posted a link to a website called lawyersforbritain (HERE) which criticised the judgement.

However, lawyers for Britain are wrong on at least two fundamental points. Firstly, they say the referendum result was binding  and that the royal prerogative is used in the Council of Ministers of the EU to vote for Regulations which then alter domestic law (HERE).  But I think last week's judgement answers both points.

It was common ground that the referendum was NOT binding with even the government conceding the vote had no statutory power at all.  And Regulations become effective in UK law after the use of the royal prerogative only because parliament has so willed it.

They also argue there is nothing in the 2008 European Union (Amendment) Act to say the prerogative could not be used but it did bring under parliamentary control any further changes to EU law. But last week the High Court accepted that parliament could not have intended to "switch on" EU law but leave it to the executive using an ancient prerogative to switch it off.  And a similar argument was used by the Attorney General that in the absence of a specific part of the original 1972 Act preventing the use of the prerogative, the government should be permitted to use it.

But the court decided that in domestic law (i.e. the 1972 Act), where it is not clear, it must be presumed only parliament retains the power to confer or deprive people of rights. Only in International law, which does not impact domestic law is the crown free to act using the prerogative.