A Typo in the Constitution

 At this time the only men and women who know the outcome are the Justices themselves, possibly their Judicial Assistants that are writing the press releases, the lawyers in the case, and perhaps Joshua Rozenberg QC. Anyone else who claims to understand how it is likely to go is most likely imagining.

I was totally wrong about how the Divisional Court goes (although I left my forecast at time of difficulty, and by the time of hearing I thought it was shut ) so don't place any money IPO Review on my best guess. Nevertheless, I still have a hunch that the Government may have squeaked house. No matter the outcome, there will be lots for attorneys to think over: that has become the largest inherent case for a decade, perhaps longer, perhaps ever.

I don't think a reference to the CJEU is likely (David Allen Green states a 10% chance, and that I broadly agree), nor do I think there's anything in the devolved governments' disagreements whether predicated on the Sewel Convention, Good Friday Agreement, or Legal Adda Bayeaux Tapestry (DAG says 20% - I would say half ).

The remaining options, which I'd put at near odds relative to each other are (1) that the UKSC essentially upholds the logic of the Divisional Court judgment (possibly with some finesse about the ambulatory nature of the ECA and a learned treatise of the nature of this prerogative) or (2) finding for the Government in a sense not put before the Divisional Court.

From having watched nearly All the four-day hearing prior to Biz Blog Wiz the UKSC, if the Supreme Court is to seek for the government, I'd expect the justification to be broadly as follows:

(I) The ECA is an ambulatory statute, and consequently gives effect to whatever rights exist on the EU plane, the determination of which is provided due to ratification of Treaties by the Executive under the prerogative and then ratification by Parliament to include them into the ECA itself.

(ii) The decision to enter in the EU (and consequently Parliament's passage of the ECA and/or the result of the 1975 Referendum didn't eliminate the prerogative ability to leave (which could have been as an issue of global law and perhaps the Vienna Conventions, prior to Article 50 TFEU being consented by virtue of the Lisbon Treaty in 2009).

(iii) However, for the authorities to exercise the prerogative to leave the EU prior to 2015 would have been a misuse of power (not ultra vires, but rather intra vires and yet abusive) as being contrary to the will of Parliament and of the people as expressed from the 1975 Referendum. The exercise of this prerogative prior to 2015/16 could happen to be amenable to judicial review.

(iv) That, contrary to the Diceyian dicta about'judges knowing nothing of this will of the people, save for Parliament's will' needs updating to reflect the end result of Referendums authorised by Parliament. Such referendums aren't binding to the Executive, nor superior to the will of Parliament, but they're of legal effect.

(v) Parliament having decreed the 2016 Referendum ought to be held, and also the result having been to flee, it therefore ceased to be violent for the authorities to exercise its prerogative power to that effect. Basically it will be an abuse of power to act against a referendum result, but cannot be if the Gvt behaves in compliance with the outcome (although finally Parliament has the final state, and the Gvt can not act contrary to the express will of Parliament).

(vi) Consequently, the prerogative power to withdraw the UK from treaties (even EU treaties) has always subsisted and proceeds to, but has been under a'fetter' or'clamp' whereas the settled'will of the people' (the ECA and 1975 Referendum result) was in favour of staying in. That fetter was removed by the 2015 Act granting the referendum, and also the 2016 referendum result.