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Source: (consider it)
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Thread: Shake it all about: Brexit thread II
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PaulTH*
Shipmate
# 320
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Posted
quote:
Originally posted by Alan Cresswell:
although if the UK-EU doesn't produce a visa waiver scheme I would be incredibly surprised.
I would be utterly flabbergasted if anyone in Europe or the UK would sink that low. We could travel in Europe prior to our EU membership without a visa, though we always had our passports stamped on the frontier. As a frequent channel hopper who lives within sight of France, that would break my heart!
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Yours in Christ
Paul
Posts: 6387 | From: White Cliffs Country | Registered: May 2001
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Doc Tor
Deepest Red
# 9748
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Posted
quote:
Originally posted by PaulTH*:
quote:
Originally posted by Alan Cresswell:
although if the UK-EU doesn't produce a visa waiver scheme I would be incredibly surprised.
I would be utterly flabbergasted if anyone in Europe or the UK would sink that low.
I hope your capacity for disappointment is unlimited, as populist demagoguery appears to be trumping common sense at every turn.
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Forward the New Republic
Posts: 9131 | From: Ultima Thule | Registered: Jul 2005
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Rocinante
Shipmate
# 18541
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Posted
Yeah. The way things are going we could end repealing the treaty of Versailles.
Posts: 384 | From: UK | Registered: Jan 2016
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tomsk
Shipmate
# 15370
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Posted
It strikes me that the Court has intervened in the most intensely political decision this country has made in 40 years.
It's tempting to have a very high view of the courts and precedents (particularly if you agree with the result), but it's a bit more pragmatic than that. For instance, the importance of whether conservative or liberal judges are appointed to the US Supreme Ct demonstrates that there's a lot of subjectivity in the SC's actual decisions.
Judicial review and so court supervision (of the legality of public authority decisions) has grown over the years. This has to be a very high water mark.
FWIW, my bet is the Supreme Court upholds this. Reason. In a rather obscure recent decision about whether the govt or courts had the final decision on the release of the Prince of Wales letters under freedom of information legislation (put simply, an Act of Parliament said it was the government, but the court artificially interpreted it to mean that it was the court). The decision was an assertion of judicial supremacy on interpreting the law and on the finality of its decisions. Slightly different issues here, but the Court wades right in to politics.
I sense a trajectory of greater judicial intervention. Courts are critical to the 'rule of law'. I don't think it's too melodramatic to say that this may overreach itself and end up going into reverse. We live in times of change.
The Refrendum was carried out under parliamentary authority. It seems odd to me that it can't be given effect to.
The 1972 EC Act simply gave effect to EU treaty law in the UK. The treaties are independent of it.
I anticipate Parliament won't block Brexit but will try to set staying in the Single Market as the prime objective (with consequent free movement of people) limiting Brexit.
Posts: 372 | From: UK | Registered: Dec 2009
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by Doc Tor:
Orfeo, normally I'd defer to you in matters legal and constitutional, but since the noble lords on the bench disagree with you, and agree with me, then all I can say is that your argument is faulty at a fundamental level - the expressed opinion of the court is that the instrument required to disengage from the EU (Art. 50) cannot be invoked by Royal Prerogative.
[old lawyer joke]
How many lawyers does it take to change a light bulb?
How many can you afford?
[/old lawyer joke]
It's like you've never heard of appeal courts.
Your level of deference to a particular group of judges is admirable, but I don't share it. I don't share it because I read about judges saying other judges are wrong All. The. Time.
[ 05. November 2016, 14:01: Message edited by: orfeo ]
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
The reason I've come back is because I've suddenly realised at the most fundamental level why I think "Parliament was needed to get in, so Parliament is needed to get out" is wrong.
EU rights are a logical AND circuit. With two elements:
A. UK treaties to be an EU member.
B. UK legislation to give EU rights to UK citizens.
You need A and B to have functional EU rights in the UK, yes?
You needed B.
But it is wrong to say that the only way to turn those rights off is a change in B. Changing A will also turn them off.
And that's where I think the whole argument falls down. The argument is not really "it needed Parliament to get in, so we need Parliament to get out".
The argument is in fact "we needed Parliament to switch on B, so therefore we need Parliament to switch off A".
[ 05. November 2016, 14:07: Message edited by: orfeo ]
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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Doc Tor
Deepest Red
# 9748
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Posted
quote:
Originally posted by orfeo:
It's like you've never heard of appeal courts.
It's like you never realised I've been married to a lawyer for 25 years.
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Forward the New Republic
Posts: 9131 | From: Ultima Thule | Registered: Jul 2005
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Anglican't
Shipmate
# 15292
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Posted
quote:
Originally posted by orfeo:
quote:
Originally posted by Doc Tor:
Orfeo, normally I'd defer to you in matters legal and constitutional, but since the noble lords on the bench disagree with you, and agree with me, then all I can say is that your argument is faulty at a fundamental level - the expressed opinion of the court is that the instrument required to disengage from the EU (Art. 50) cannot be invoked by Royal Prerogative.
[old lawyer joke]
How many lawyers does it take to change a light bulb?
How many can you afford?
[/old lawyer joke]
It's like you've never heard of appeal courts.
Your level of deference to a particular group of judges is admirable, but I don't share it. I don't share it because I read about judges saying other judges are wrong All. The. Time.
I've only got as far as paragraph 90-something of the judgment* and, though I'm quite rusty with this sort of thing these days, there does seem to be a lot of material for Jonathan Sumption and his friends to get their teeth into. It'll be a fascinating judgment.
*I got distracted on the internet, but I now know where De Keyser's Royal Hotel used to be.
Posts: 3613 | From: London, England | Registered: Nov 2009
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by Doc Tor:
quote:
Originally posted by orfeo:
It's like you've never heard of appeal courts.
It's like you never realised I've been married to a lawyer for 25 years.
*shrug*. I'm not commenting on your reality. I'm commenting on the fact that you're behaving as if judges are infallible by saying that my view must be "faulty at a fundamental level" just because it's not the same view as that of a judge.
As far as arguments go, that's an incredibly piss-poor one. It's also liable to make the universe implode the moment you get 2 judges who don't agree with each other.
[ 05. November 2016, 14:27: Message edited by: orfeo ]
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
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alienfromzog
Ship's Alien
# 5327
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Posted
It is a bit ridiculous the way the judgement has been controversial. This is not judicial activism, it is badly written legislation.
Sovereignty of parliament is the cornerstone of the UK constitution. The problem here lies in the original referendum bill. It could have been a binding referendum. But it wasn't. It could have required a super-majority but it didn't. As experts on the law pointed out at the time, to disentangle UK law is not a simple process. In effect it will mean making lots of new law. The point is that the government doesn't have the power to do so. Only parliament does.
None of this is surprisingly. If this had been a genuine attempt to deal with a complicated constitutional and political issues then we wouldn't be here. On the other hand when you play games like this for cheap political reasons, this is the almost inevitable result.
AFZ
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Everyone is entitled to his own opinion, but not his own facts.
[Sen. D.P.Moynihan]
An Alien's View of Earth - my blog (or vanity exercise...)
Posts: 2150 | From: Zog, obviously! Straight past Alpha Centauri, 2nd planet on the left... | Registered: Dec 2003
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by tomsk:
FWIW, my bet is the Supreme Court upholds this. Reason. In a rather obscure recent decision about whether the govt or courts had the final decision on the release of the Prince of Wales letters under freedom of information legislation (put simply, an Act of Parliament said it was the government, but the court artificially interpreted it to mean that it was the court). The decision was an assertion of judicial supremacy on interpreting the law and on the finality of its decisions. Slightly different issues here, but the Court wades right in to politics.
I would say VERY different issues. You're describing a fight that was court vs government. And saying that the courts have the final say on interpretation of law is thoroughly orthodox.
The current dispute isn't court vs government, it's government vs parliament.
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by alienfromzog:
As experts on the law pointed out at the time, to disentangle UK law is not a simple process. In effect it will mean making lots of new law. The point is that the government doesn't have the power to do so. Only parliament does.
But right now we're not talking about changing UK legislation. We're talking about activating a treaty provision.
There is in fact not nearly as much UK law that has to change as some people suppose. There is absolutely nothing to prevent a "fully independent" UK from adopting EU laws if it so chooses.
I know this, because quite a bit of Australian law is based on copying EU rules. I've written some of it. You don't have to be a member of the EU to have EU laws, you just need a Parliament (or delegated legislator) that says "oh, that looks good, we'll have that as well".
Leaving the EU gives you the right to have different laws from the EU. Not the obligation.
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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Doc Tor
Deepest Red
# 9748
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Posted
quote:
Originally posted by orfeo:
quote:
Originally posted by Doc Tor:
quote:
Originally posted by orfeo:
It's like you've never heard of appeal courts.
It's like you never realised I've been married to a lawyer for 25 years.
*shrug*. I'm not commenting on your reality. I'm commenting on the fact that you're behaving as if judges are infallible by saying that my view must be "faulty at a fundamental level" just because it's not the same view as that of a judge.
As far as arguments go, that's an incredibly piss-poor one. It's also liable to make the universe implode the moment you get 2 judges who don't agree with each other.
You mistake me. I'm well aware that lawyers and judges disagree with each other.
But you're opining that the appeal court judges didn't actually understand the law they were being asked to adjudicate on. I would argue that they do. They just understand it differently from you and, given that they have more experience at UK constitutional law, I'm going with them.
The Supreme Court, with all of the justices sitting, will convene in December. I'm sure they'll take yours, and all counter arguments, into consideration.
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Forward the New Republic
Posts: 9131 | From: Ultima Thule | Registered: Jul 2005
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alienfromzog
Ship's Alien
# 5327
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Posted
quote:
Originally posted by orfeo:
quote:
Originally posted by alienfromzog:
As experts on the law pointed out at the time, to disentangle UK law is not a simple process. In effect it will mean making lots of new law. The point is that the government doesn't have the power to do so. Only parliament does.
But right now we're not talking about changing UK legislation. We're talking about activating a treaty provision.
There is in fact not nearly as much UK law that has to change as some people suppose. There is absolutely nothing to prevent a "fully independent" UK from adopting EU laws if it so chooses.
I know this, because quite a bit of Australian law is based on copying EU rules. I've written some of it. You don't have to be a member of the EU to have EU laws, you just need a Parliament (or delegated legislator) that says "oh, that looks good, we'll have that as well".
Leaving the EU gives you the right to have different laws from the EU. Not the obligation.
Indeed. But the point is that this is literally thousands of decisions about whether we want to follow EU law or do something different. In each case parliament can make that decision not the executive.
AFZ
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Everyone is entitled to his own opinion, but not his own facts.
[Sen. D.P.Moynihan]
An Alien's View of Earth - my blog (or vanity exercise...)
Posts: 2150 | From: Zog, obviously! Straight past Alpha Centauri, 2nd planet on the left... | Registered: Dec 2003
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Alwyn
Shipmate
# 4380
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Posted
quote:
Originally posted by orfeo:
quote:
Originally posted by alienfromzog:
As experts on the law pointed out at the time, to disentangle UK law is not a simple process. In effect it will mean making lots of new law. The point is that the government doesn't have the power to do so. Only parliament does.
But right now we're not talking about changing UK legislation. We're talking about activating a treaty provision.[...]
Yes, we are talking about activating a treaty provision (Art 50, Treaty on European Union). I agree with you that the better view of existing law would have been for the court to decide that the government could use prerogative powers to trigger Article 50. (I think that the law should require Parliament's involvement - I just didn't think that the law did require that.)
The view of the court seems to have been that they were talking about activating a treaty provision and changes to the effect of UK legislation. I can see where they are 'coming from'. If I interpret them correctly, they said that triggering Article 50 will lead to the loss of statutory rights. After the negotiation process, either the EU and UK will agree a deal, in which case UK citizens will lose at least some of their rights under EU law (if not all) or no deal will be done, in which case all rights will be lost 2 years after Art 50 is triggered. Either way, rights which UK citizens currently enjoy under the European Communities Act 1972 (and other legislation) will be lost. The court's view seems to be that the activation of a treaty provision will lead to a loss of statutory rights. Normally, these two things would be separate, but in this case they are linked.
You might be thinking 'but triggering Article 50 won't immediately cause the loss of those rights. If Parliament needs to pass an Act, this is needed at the end of the Art 50 negotiation process, not the beginning'. If so, I agree - that is why I don't think that the law required an Act of Parliament to trigger Article 50.
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Post hoc, ergo propter hoc
Posts: 849 | From: UK | Registered: Apr 2003
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Stejjie
Shipmate
# 13941
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Posted
quote:
Originally posted by orfeo:
Well that's my first problem. I'm not persuaded that the UK joined by an Act of Parliament. Again, it's the EU rules that expected an Act of Parliament, as a condition of accepting the UK. It wasn't an idea that the UK came up with on its own.
Given that the EU requirement for leaving doesn't say that the UK must pass an Act, whereas the EU requirement for entering did say that an Act was required, what basis is there for saying you need an Act to leave? A false idea that the UK unilaterally set up the entry.
The bit I've put in italics isn't the case, though. Article 237 of the Treaty Of Rome simply says that if a country wishes to join, an agreement is drawn up between the EU (or EEC as was in the UK's case) which then "shall be submitted to all the contracting States for ratification in accordance with their respective constitutional rules". The 1972 Treaty Of Accession, signed between the then-EEC and the UK (and Ireland and Denmark, who joined at the same time) simply says that the treaty will be ratified by the candidate countries "in accordance with their respective constitutional requirements".
In neither treaty did the EEC specify to the UK that an Act of Parliament is required; both of them, like Article 50, merely said that the UK are required do so in accordance with their constitutional requirements. There seems to me to be no difference between the two. Given this, and the fact that EEC/EU treaties have always been accepted into UK law by Parliament, why is Parliament now not required to invoke Article 50?
I don't the the relative sovereignty of the UK Parliament vs the EU is the question here either; the question is whether the "constitutional requirements" in the UK's case is Parliament or the government alone via Royal Perogative; whether or not Parliament is sovereign against the EU seems irrelevant.
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A not particularly-alt-worshippy, fairly mainstream, mildly evangelical, vaguely post-modern-ish Baptist
Posts: 1117 | From: Urmston, Manchester, UK | Registered: Jul 2008
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Ricardus
Shipmate
# 8757
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Posted
Isn't the issue that royal prerogative powers have to be expressly reserved? In other words, if the Queen wants to do something without the consent of Parliament, it's up to her to prove that it's her prerogative, it's not up to Parliament to prove it isn't.
In practice this proof might be precedent or long-standing convention rather than anything written down. So, the fact that EU accession was achieved via an act of Parliament may not show that an Act of Parliament was necessary, but it means that no precedent exists to prove that it wasn't.
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Then the dog ran before, and coming as if he had brought the news, shewed his joy by his fawning and wagging his tail. -- Tobit 11:9 (Douai-Rheims)
Posts: 7247 | From: Liverpool, UK | Registered: Nov 2004
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Ricardus
Shipmate
# 8757
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Posted
quote:
Originally posted by Rocinante:
Yeah. The way things are going we could end repealing the treaty of Versailles.
We had a politics teacher at school who argued that the European Union was the final resolution of the Treaty of Verdun (AD 843).
The Treaty of Verdun divided Charlemagne's empire among his descendants: Charles got most of what is now France, Louis got most of what is now Germany, and Lothar got a long thin dribbly bit down the middle. According to our politics teacher, most of Western European history can be seen as fighting over the long thin dribbly bit down the middle. The European Union and its antecedents were intended to put an end to such fighting.
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Then the dog ran before, and coming as if he had brought the news, shewed his joy by his fawning and wagging his tail. -- Tobit 11:9 (Douai-Rheims)
Posts: 7247 | From: Liverpool, UK | Registered: Nov 2004
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by Stejjie:
quote:
Originally posted by orfeo:
Well that's my first problem. I'm not persuaded that the UK joined by an Act of Parliament. Again, it's the EU rules that expected an Act of Parliament, as a condition of accepting the UK. It wasn't an idea that the UK came up with on its own.
Given that the EU requirement for leaving doesn't say that the UK must pass an Act, whereas the EU requirement for entering did say that an Act was required, what basis is there for saying you need an Act to leave? A false idea that the UK unilaterally set up the entry.
The bit I've put in italics isn't the case, though. Article 237 of the Treaty Of Rome simply says that if a country wishes to join, an agreement is drawn up between the EU (or EEC as was in the UK's case) which then "shall be submitted to all the contracting States for ratification in accordance with their respective constitutional rules". The 1972 Treaty Of Accession, signed between the then-EEC and the UK (and Ireland and Denmark, who joined at the same time) simply says that the treaty will be ratified by the candidate countries "in accordance with their respective constitutional requirements".
In neither treaty did the EEC specify to the UK that an Act of Parliament is required; both of them, like Article 50, merely said that the UK are required do so in accordance with their constitutional requirements. There seems to me to be no difference between the two. Given this, and the fact that EEC/EU treaties have always been accepted into UK law by Parliament, why is Parliament now not required to invoke Article 50?
I don't the the relative sovereignty of the UK Parliament vs the EU is the question here either; the question is whether the "constitutional requirements" in the UK's case is Parliament or the government alone via Royal Perogative; whether or not Parliament is sovereign against the EU seems irrelevant.
Okay, well that is distinctly not the impression I got from what I previously read, which was to the effect that a joining state was obliged to put certain things into its domestic law, and that this is what the 1972 Act was doing.**
Maybe it says that elsewhere, not in the particular article you are looking at? To return to my logical AND circuit, are you looking at the bit about turning on A, and does another bit talk about turning on B?
Or is it not specific article, but a whole series of articles? Isn't the whole point of the EU that the member states are required to align their domestic law?
Please note, I'm not necessarily talking about "ratification". I think half the problem here is that two quite different things are being muddled together. "Ratification" is to do with signing up to a treaty. That's switch A. Switch B is about implementing it, doing what you actually promise to do.
**Section 2 of the 1972 Act as originally enacted certainly gives me the impression that this is what it was about.
[ 06. November 2016, 00:38: Message edited by: orfeo ]
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by Doc Tor:
But you're opining that the appeal court judges didn't actually understand the law they were being asked to adjudicate on. I would argue that they do. They just understand it differently from you and, given that they have more experience at UK constitutional law, I'm going with them.
You can go with them. That's quite different, though, to what you said, which is that my argument must be fundamentally flawed just because I'm not going with them.
I'm perfectly happy for you to say that they have bigger more impressive qualifications than me and so you find them more authoritative. But that's just a disengagement from actually examining my argument. It's a classic case of looking at the man not the ball.
You don't get to talk about my argument being fundamentally flawed on that basis. If you're going to talk about my argument being fundamentally flawed, pick the fundamental flaw in it. Engage with the actual argument.
[ 06. November 2016, 00:44: Message edited by: orfeo ]
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by Alwyn:
quote:
Originally posted by orfeo:
quote:
Originally posted by alienfromzog:
As experts on the law pointed out at the time, to disentangle UK law is not a simple process. In effect it will mean making lots of new law. The point is that the government doesn't have the power to do so. Only parliament does.
But right now we're not talking about changing UK legislation. We're talking about activating a treaty provision.[...]
Yes, we are talking about activating a treaty provision (Art 50, Treaty on European Union). I agree with you that the better view of existing law would have been for the court to decide that the government could use prerogative powers to trigger Article 50. (I think that the law should require Parliament's involvement - I just didn't think that the law did require that.)
The view of the court seems to have been that they were talking about activating a treaty provision and changes to the effect of UK legislation. I can see where they are 'coming from'. If I interpret them correctly, they said that triggering Article 50 will lead to the loss of statutory rights. After the negotiation process, either the EU and UK will agree a deal, in which case UK citizens will lose at least some of their rights under EU law (if not all) or no deal will be done, in which case all rights will be lost 2 years after Art 50 is triggered. Either way, rights which UK citizens currently enjoy under the European Communities Act 1972 (and other legislation) will be lost. The court's view seems to be that the activation of a treaty provision will lead to a loss of statutory rights. Normally, these two things would be separate, but in this case they are linked.
You might be thinking 'but triggering Article 50 won't immediately cause the loss of those rights. If Parliament needs to pass an Act, this is needed at the end of the Art 50 negotiation process, not the beginning'. If so, I agree - that is why I don't think that the law required an Act of Parliament to trigger Article 50.
Thank your for this.
I can see where they are coming from as well. What I think they've fundamentally missed is exactly what will cause the loss of those rights. It will be the EU no longer recognising them.
The UK Parliament being completely sovereign means that it can write anything it likes in UK legislation. If the UK Parliament wants to keep running "European elections" and giving UK citizens the right to vote in them, it can.
What it can't do - what it could never do - is force open the doors at Strasbourg and make all the other countries allow the people elected in those "European elections" to sit in the European Parliament.
In my view, the Court has correctly identified that various rights will be lost in practice. But it hasn't properly engaged with where those rights come from in legal terms. Saying that they are rights conferred by Parliament (and so only Parliament can take them away again) is, I think, very woolly thinking.
Parliament has control over those rights to the extent that it conferred them. But not more than that.
The Court seems to have fallen into a line of reasoning that says "Parliament is completely sovereign and so that means legislation can't be made practically useless". But when it comes to legislation that relies on the consent and cooperation of other countries, of course it can.
[ 06. November 2016, 00:58: Message edited by: orfeo ]
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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Alwyn
Shipmate
# 4380
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Posted
orfeo, that is how I think about this, too. As you probably know, UK lawyers are taught that Parliament can make any law, including arbitrary or unjust laws - and, of course, futile laws. Your example of Parliament keeping the law which requires elections for Members of the European Parliament, even if Britain was no longer entitled to any MEPs, is a good example. Your example reminds me of the classic lecture-hall example of the British Parliament passing a law making it illegal for French people to smoke on the streets of Paris (with apologies to any French people reading this - the point of the example is that this would be an absurd, futile law.) If the UK Supreme Court reverses the decision of the High Court, then my guess is that you have identified the reasoning which they will use.
quote:
Originally posted by Stejjie:
[...] Given this, and the fact that EEC/EU treaties have always been accepted into UK law by Parliament, why is Parliament now not required to invoke Article 50?
I don't the the relative sovereignty of the UK Parliament vs the EU is the question here either; the question is whether the "constitutional requirements" in the UK's case is Parliament or the government alone via Royal Perogative; whether or not Parliament is sovereign against the EU seems irrelevant.
I agree, Stejjie, that the issue is not relative sovereignty. My answer to your first point (given that Acts were needed to accept EU treaties into UK law, why isn't an Act needed now) is this: an Act will be needed. It will be needed at the end of the Art 50 negotiation process, not the beginning - just as an Act of Parliament was not needed for the UK to start negotiating to join the EEC. The European Communities Act 1972 was needed after those negotiations ended.
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Post hoc, ergo propter hoc
Posts: 849 | From: UK | Registered: Apr 2003
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alienfromzog
Ship's Alien
# 5327
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Posted
quote:
Originally posted by Alwyn:
orfeo, that is how I think about this, too. As you probably know, UK lawyers are taught that Parliament can make any law, including arbitrary or unjust laws - and, of course, futile laws. Your example of Parliament keeping the law which requires elections for Members of the European Parliament, even if Britain was no longer entitled to any MEPs, is a good example. Your example reminds me of the classic lecture-hall example of the British Parliament passing a law making it illegal for French people to smoke on the streets of Paris (with apologies to any French people reading this - the point of the example is that this would be an absurd, futile law.) If the UK Supreme Court reverses the decision of the High Court, then my guess is that you have identified the reasoning which they will use.
quote:
Originally posted by Stejjie:
[...] Given this, and the fact that EEC/EU treaties have always been accepted into UK law by Parliament, why is Parliament now not required to invoke Article 50?
I don't the the relative sovereignty of the UK Parliament vs the EU is the question here either; the question is whether the "constitutional requirements" in the UK's case is Parliament or the government alone via Royal Perogative; whether or not Parliament is sovereign against the EU seems irrelevant.
I agree, Stejjie, that the issue is not relative sovereignty. My answer to your first point (given that Acts were needed to accept EU treaties into UK law, why isn't an Act needed now) is this: an Act will be needed. It will be needed at the end of the Art 50 negotiation process, not the beginning - just as an Act of Parliament was not needed for the UK to start negotiating to join the EEC. The European Communities Act 1972 was needed after those negotiations ended.
Indeed. I guess it turns on the fact that activating article 50 will result in revocation of Acts of parliament but not immediately and exactly how is unclear.
For me it seems quite clear that the government does not have the power to repeal legislation. Only parliament does. All of this could have been avoided if the referendum act had included a clause empowering the executive to act.
But then the referendum act was never about grappling with the issues. It was a cheap political stunt.
AFZ
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Everyone is entitled to his own opinion, but not his own facts.
[Sen. D.P.Moynihan]
An Alien's View of Earth - my blog (or vanity exercise...)
Posts: 2150 | From: Zog, obviously! Straight past Alpha Centauri, 2nd planet on the left... | Registered: Dec 2003
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Anglican't
Shipmate
# 15292
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Posted
quote:
Originally posted by alienfromzog:
For me it seems quite clear that the government does not have the power to repeal legislation. Only parliament does. All of this could have been avoided if the referendum act had included a clause empowering the executive to act
How so?
Posts: 3613 | From: London, England | Registered: Nov 2009
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Alwyn
Shipmate
# 4380
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Posted
quote:
Originally posted by Anglican't:
quote:
Originally posted by alienfromzog:
For me it seems quite clear that the government does not have the power to repeal legislation. Only parliament does. All of this could have been avoided if the referendum act had included a clause empowering the executive to act
How so?
When the EU Referendum Bill was drafted, and when it was being discussed by Parliament, any alert minister or backbencher could have said, 'suppose a majority vote Leave? Do we need to add a clause to the Bill, to authorise the government to trigger Article 50 if that happens?' They could have consulted a lawyer, who could have advised them that (as this case shows) this was a grey area. Having discovered that, they could have inserted such a clause into the Bill. Since the government and Parliament left an unresolved grey area, the judges had to resolve it.
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Post hoc, ergo propter hoc
Posts: 849 | From: UK | Registered: Apr 2003
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alienfromzog
Ship's Alien
# 5327
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Posted
Parliamentary sovereignty is a funny thing. Alwyn is much better on this than me (he's the real expert but I listen). It all gets a bit metaphysical in the end by parliament can basically do what it wants and unlike the US constitutional arrangements for example, Acts of Parliament cannot be struck down by the courts.
Let me put it like this. It is case that theft is against the law in the UK. Parliament could pass a bill saying that anyone with red hair could steal apples from Tescos whenever they chose to. Effectively parliament is saying "theft is illegal except in this case"
And parliament remains free to do so about anything. So the Referendum act could have had a clause stating that in the event of a vote to leave the government may trigger article 50 in or even must do so in a specific time frame. As such parliament would have passed a law with lots of potential problems because of the issues with working out what will happen with large sections of UK legislation but it would have the full force of the law and I am certain the courts would have ruled the other way. Given that the referendum was given no legal force by the bill, I think it is not remotely surprising that the courts have taken issue with the actions of the executive.
To step back from the technicalities for a moment, this really matters because how the UK leaves the EU is complicated, has several options and massive implications. The idea that the government can do whatever it wants here is not how our parliamentary democracy works. It is parliament that decides such things. How good parliament is at that job is an entirely different question.
AFZ
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Everyone is entitled to his own opinion, but not his own facts.
[Sen. D.P.Moynihan]
An Alien's View of Earth - my blog (or vanity exercise...)
Posts: 2150 | From: Zog, obviously! Straight past Alpha Centauri, 2nd planet on the left... | Registered: Dec 2003
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Alan Cresswell
Mad Scientist 先生
# 31
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Posted
quote:
Originally posted by alienfromzog:
The idea that the government can do whatever it wants here is not how our parliamentary democracy works. It is parliament that decides such things. How good parliament is at that job is an entirely different question.
The evidence is that, in this case, "totally inept" would be a generous description of the ability of Parliament to do it's job (the vast majority of which should have been done in writing the Referendum act, leaving the government the relatively simple task of doing what Parliament and the people had decided - the was no reason why after the result was clear following the referendum that Cameron didn't stand up in the Commons on the Monday morning and invoke Article 50 based on an opening position in negotiations already determined by Parliament, if the referendum had been organised with even a small thought about anything other than internal squabbles within the Conservative Party).
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Don't cling to a mistake just because you spent a lot of time making it.
Posts: 32413 | From: East Kilbride (Scotland) or 福島 | Registered: May 2001
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Ricardus
Shipmate
# 8757
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Posted
quote:
Originally posted by Alwyn:
Since the government and Parliament left an unresolved grey area, the judges had to resolve it.
I realise I am talking to people who know far more about it than I do, but if it is genuinely a grey area (in the sense of unspecified), wouldn't that suggest that triggering Article 50 isn't a prerogative power since AIUI while Parliament can do anything, the Queen unaided can only do what she is expressly allowed to do?
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Then the dog ran before, and coming as if he had brought the news, shewed his joy by his fawning and wagging his tail. -- Tobit 11:9 (Douai-Rheims)
Posts: 7247 | From: Liverpool, UK | Registered: Nov 2004
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Alwyn
Shipmate
# 4380
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Posted
quote:
Originally posted by Ricardus:
I realise I am talking to people who know far more about it than I do, but if it is genuinely a grey area (in the sense of unspecified), wouldn't that suggest that triggering Article 50 isn't a prerogative power since AIUI while Parliament can do anything, the Queen unaided can only do what she is expressly allowed to do?
It's a grey area because it can be (and has been) argued both ways and because both sides have decent arguments. The Queen (and the government, who use these powers in practice) can only use existing prerogative powers (so, in that sense, they can only do what they are expressly allowed to do). But the Queen's prerogative powers include the power to conduct international relations, which includes the UK becoming a party to, or ceasing to be a party to, international treaties.
It's a grey area, because triggering Article 50 will lead to UK citizens losing rights which we have under the European Communities Act 1972 (and other statutory rights) - and because prerogative powers cannot be used to deprive people of statutory rights. The people bringing the case have a decent argument that, when Article 50 is triggered, this will lead to UK citizens losing statutory rights. (If a deal is done, then we will lose our rights under EU treaties; if a deal is not done, then under Article 50 we will lose them automatically after 2 years). However, the government also have a decent argument - that triggering Article 50 cannot deprive people of statutory rights and that the loss of rights will happen at the end of the negotiation process, when they will ask Parliament to pass a Bill to implement the deal they do with the EU.
It is a grey area because highly-regarded constitutional lawyers are divided - for example, Nick Barber, Tim Hickman and Jeff King argued, here, that Parliamentary authorisation is needed to trigger Article 50, while Mark Elliott, here, disagrees.
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Post hoc, ergo propter hoc
Posts: 849 | From: UK | Registered: Apr 2003
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PaulTH*
Shipmate
# 320
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Posted
It seems that Mrs May is less then keen on the idea of an early general election. She prefers to respect the Fixed Term Parliament Act of 2011, and soldier on until 2020. Yet at the same time, she has assured Jean-Claude Juncker and Angela Merkel, who are already impatient with Britain's lack of progress here, that there will be no slippage on her plan to trigger Article 50 by March. Perhaps she is hoping that the Supreme Court will overturn the judgement made in favour of Gina Miller. Perhaps she hopes that getting the necessary parliamentary approval in light of the court judgement, won't be a long or difficult process. I disagree with her on both those hopes.
One big complaint we've repeatedly heard from politicians, in the media and even on this forum, is that nobody has voted for what type of Brexit they want. It remains my contention that an election would give us exactly that vote. Jeremy Corbyn has now made it clear what his red lines are for supporting Article 50. They include full access to the Single Market. As this requires the four freedoms according to our European partners, he is putting access ahead of control of immigration policy. So we now have every possible future represented.
UKIP are off the radar, but may well pick up a lot of votes still. The Tories under Theresa, are for putting control of borders first and seeing what we can get in the way of access to the SM. Labour are for the reverse position. The Lib Dems and the SNP are for continuing to Remain. I don't believe there can ever be any democratic accountability in our future negotiations with the EU, unless the Prime Minister, whoever it would be, can claim a mandate for their own particular approach to Brexit. As an election isn't on the horizon, I'll stop banging on about it, but if this process becomes gridlocked, I can see the idea becoming more attractive to the Prime Minister.
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Yours in Christ
Paul
Posts: 6387 | From: White Cliffs Country | Registered: May 2001
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Enoch
Shipmate
# 14322
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Posted
quote:
Originally posted by PaulTH*:
... I don't believe there can ever be any democratic accountability in our future negotiations with the EU, unless the Prime Minister, whoever it would be, can claim a mandate for their own particular approach to Brexit. ...
Our electoral system is as good as guaranteed to give no PM a legitimate claim to have an electoral mandate for anything.
Cameron only had a self-delusory one, yet alone May. Likewise Gordon Brown.
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Brexit wrexit - Sir Graham Watson
Posts: 7610 | From: Bristol UK(was European Green Capital 2015, now Ljubljana) | Registered: Nov 2008
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PaulTH*
Shipmate
# 320
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Posted
quote:
Originally posted by Enoch:
Our electoral system is as good as guaranteed to give no PM a legitimate claim to have an electoral mandate for anything
I agree, but it's all we've got in the present moment. And it may be needed to break a constitutional impasse.
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Yours in Christ
Paul
Posts: 6387 | From: White Cliffs Country | Registered: May 2001
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Doc Tor
Deepest Red
# 9748
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Posted
quote:
Originally posted by orfeo:
Engage with the actual argument.
I did here. You started talking about gravity.
Apparently, the government's legal advisers are telling May that the Appeal Court's reasoning is not just sound, but pretty much boilerplated. Again, I'm sure they've considered the counter-arguments, including yours, but they appear to have rejected all other interpretations. You might find their ruling perverse, and maintain that your opinion is correct, but theirs is the one that's going to end up as setting precedent.
You might want to look again at how you constructed your argument and arrived at a very different conclusion to the one that's most likely to stand.
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Forward the New Republic
Posts: 9131 | From: Ultima Thule | Registered: Jul 2005
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anteater
Ship's pest-controller
# 11435
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Posted
PaulTh:
I disagree that we have the approaches of the parties laid out. Nor do I think that this is all that easy.
Firstly, IMHO membership of the Customs Union is more important that the Single Market, since this allows us develop other trade agreements which is only ruled out by CU membership not SM membership. Is Labour's policy on this clear?
It would be interesting, if Labour went for the Norway option (in the SM but out of the CM).
First, would those who prefer this (which I do) vote Labour to get it? Very few, I think, and not me.
What would The Commission do, if anything? Because an argument against a dogmatic Norway approach is that we may not get it. I agree we stand a good chance if we fully accept free movement (with the emergency brake that Norway has), and are very co-operative on the ECJ (I think Norway has some get out but has only rejected one law in about a year) and contribution (Richard North who is expert on this thinks an increase may well be demanded).
The Tories would argue that this is highly risky, because there will be a lot of opposition to it in Europe, and especially if this is seen as just an interim whilst we get our own trade deals and then leave the SM when we have these in place (North's Flexcit option again). So Jeremy would need to come clean on whether he wants SM membership for good, with its downsides, or only as a pragmatic interim whilst we build up strength to do a hard brexit in, say 7-10 years.
He would then be very vulnerable to any noise out of Brussels that they are not interested in such a deal, and also very vulnerable to voter opposition, because I think North is right that we would have to ask very nicely (aka crawl - Daily Mail) to get the deal.
I agree with Paul Goodman's analysis in here that quote:
May should have called an election as soon as she became Prime Minister, but that having said she won’t, she now shouldn’t unless she has to: the core of her appeal, after all, is that she’s a woman of her word. But if Parliament now either makes Brexit itself or an orderly negotiation impossible, she may have no alternative but to go the country
.
It's an interesting summary of the pros and cons of an election.
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Schnuffle schnuffle.
Posts: 2538 | From: UK | Registered: May 2006
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Alan Cresswell
Mad Scientist 先生
# 31
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Posted
quote:
Originally posted by anteater:
First, would those who prefer this (which I do) vote Labour to get it? Very few, I think, and not me.
Which is the reason why a general election to solve the Brexit problem is a totally bonkers idea. You either insist people vote solely on the single issue of Brexit, ignoring all the other policies of each party. Or, you vote on the complete package and so vote for a party where you agree on their policies on health, welfare, defence, education etc, but where their position on Brexit is not what you want.
The only surefire way of knowing the views of the electorate to gain a mandate for a particular form of exit is to have an election between different options rather than different candidates - ie: a second referendum.
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Don't cling to a mistake just because you spent a lot of time making it.
Posts: 32413 | From: East Kilbride (Scotland) or 福島 | Registered: May 2001
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Anglican't
Shipmate
# 15292
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Posted
quote:
Originally posted by Doc Tor:
Apparently, the government's legal advisers are telling May that the Appeal Court's reasoning is not just sound, but pretty much boilerplated. Again, I'm sure they've considered the counter-arguments, including yours, but they appear to have rejected all other interpretations. You might find their ruling perverse, and maintain that your opinion is correct, but theirs is the one that's going to end up as setting precedent.
You might want to look again at how you constructed your argument and arrived at a very different conclusion to the one that's most likely to stand.
On a point of information (that may or may not be relevant, we'll see) my understanding is that R (Miller) v Secretary of State for Exiting the European Union is a High Court judgment (i.e. a first instance decision) and so not a judgment by an appeal court. The case is going to appeal, leapfrogging the Court of Appeal and going straight to the Supreme Court, which might of course uphold the first instance decision in its entirety. Or reject it completely. Or do something in between. We'll see.
If this ends up going to the Supreme Court then in many ways we're discussing something that is not yet final.
[ 06. November 2016, 18:20: Message edited by: Anglican't ]
Posts: 3613 | From: London, England | Registered: Nov 2009
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Callan
Shipmate
# 525
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Posted
quote:
Originally posted by PaulTH*:
quote:
Originally posted by Enoch:
Our electoral system is as good as guaranteed to give no PM a legitimate claim to have an electoral mandate for anything
I agree, but it's all we've got in the present moment. And it may be needed to break a constitutional impasse.
The problem is that the moment she calls for a General Election she has to lay her hand upon the table. As she currently holds the two of Diamonds, a couple of Pokemons, a 1977 Football Top Trumps of Kenny Dalglish and The Fool she is understandably reluctant to do this. Basically, this is a government without a clue, without a plan and without an opposition which has been granted an electoral mandate to shoot the British economy in the foot. If she calls an election she will have to find a clue and a plan and, might possibly find herself with an opposition whilst still being obliged to point a shotgun and blow off one of her kitten heels. So it's not difficult to see why she's stalling.
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How easy it would be to live in England, if only one did not love her. - G.K. Chesterton
Posts: 9757 | From: Citizen of the World | Registered: Jun 2001
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Doc Tor
Deepest Red
# 9748
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Posted
quote:
Originally posted by Anglican't:
If this ends up going to the Supreme Court then in many ways we're discussing something that is not yet final.
I concur. But in my half-awake state this morning, R4 reliably informed me that the government's own legal advisers were telling May the game was up, and the SC was (I think the phrase was) 'unlikely' to reverse the Appeal Court's decision.
It is, of course, up to May et al to decide whether it's worth to risk another day of terrible headlines, but that's a political decision, not a legal one.
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Forward the New Republic
Posts: 9131 | From: Ultima Thule | Registered: Jul 2005
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by Doc Tor:
You might want to look again at how you constructed your argument and arrived at a very different conclusion to the one that's most likely to stand.
No thanks. Back in law school they taught me it was okay to write essays arguing that the very highest court in the land sometimes got it wrong. So I'm good.
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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Alan Cresswell
Mad Scientist 先生
# 31
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Posted
Though, if the highest court in the land says Parliament has to call Article 50, no amount of student essay writing on how it's wrong is going to alter the choices Mrs May has.
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Don't cling to a mistake just because you spent a lot of time making it.
Posts: 32413 | From: East Kilbride (Scotland) or 福島 | Registered: May 2001
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
Completely agreed.
The problem I have is that Doc Tor seems to think that students really ought to shut up and just parrot what they were told to say.
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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Doc Tor
Deepest Red
# 9748
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Posted
quote:
Originally posted by orfeo:
Completely agreed.
The problem I have is that Doc Tor seems to think that students really ought to shut up and just parrot what they were told to say.
Er, no. I think that students should study the work of senior practitioners and learn from it. That is basic pedagogy and, I would have thought, reasonably uncontroversial.
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Forward the New Republic
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Sioni Sais
Shipmate
# 5713
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Posted
quote:
Originally posted by orfeo:
quote:
Originally posted by Doc Tor:
You might want to look again at how you constructed your argument and arrived at a very different conclusion to the one that's most likely to stand.
No thanks. Back in law school they taught me it was okay to write essays arguing that the very highest court in the land sometimes got it wrong. So I'm good.
Indeed, that is so, but AFAICR, you have to supply references for the elements of your argument. These courts might get it wrong but you have to take account of the framework they are working within; unless you want to start from a blank sheet of paper that is.
Posts: 24276 | From: Newport, Wales | Registered: Apr 2004
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
Sigh. Do you really want me to pepper the message board with citations of all the legislation and cases?
In any case, the starting proposition that it is the Crown, not the Parliament, that has the power to conduct international relations is uncontroversial. Heck, even the High Court agrees with it.
And I don't disagree with the basic law that says Parliament is sovereign either.
What I disagree with is no more, and no less, than the interpretation of a particular piece of legislation and how it supposedly "gave rights" to UK citizens. I don't think I could be much clearer.
Precious few of you seem interested in engaging with what I'm saying simply because it involves saying that that mean nasty Prime Minister has more power than you'd like, but I don't actually give a shit about the consequences, I give a shit about the reasoning process. It's the reasoning process of the judgement that I'm commenting on. I've provided a link to the judgement. What else would you like?
Posts: 18173 | From: Under | Registered: Jul 2008
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
Having done a quick cost/benefit analysis, I've decided it's not worth putting any more effort into explaining my view further. Consider it, or don't because you don't find the messenger suitably qualified and that's what matters to you.
Either way, I look forward to watching from a distance as the UK completely fucks up this process for the next couple of years, caught between the demands of its domestic audience and the demands of the other EU countries. I won't be at all surprised if the government finds that it can't get approval for triggering Article 50 without progressing a solid exit position, and it can't negotiate a solid exit position without triggering Article 50.
There will be ample opportunity to consume popcorn.
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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Alan Cresswell
Mad Scientist 先生
# 31
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Posted
At this stage, before any negotiations start, a "Brexit position" can only be where the UK government starts the negotiations - it would be incredible if that's where the negotiations end. At the moment the only reason that starting position hasn't been stated, even in outline, seems to be that the government hasn't managed to work out a compromise between different factions within the Conservative leadership (which range from "no Brexit" through to "drag the entire archipelago into the middle of the Atlantic"). Which is a direct consequence of the balls-up of the referendum question where Leave didn't produce such a starting position before the polls opened. If Leave had produced a manifesto setting out a starting position of (for example) "end freedom of movement, maintain tariff-free trade, exit agriculture and fisheries deals, maintain science and technology cooperation" then the government would have already triggered Article 50 and be working on negotiating on the basis of actually having clearly heard the will of the people on the subject (though, the referendum bill probably should have authorised that executive power, just to cover the legal bases).
Enjoy the popcorn. I think I need whisky (I just won't rely on the UK government to organise any sort of booze up at the distillery).
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Don't cling to a mistake just because you spent a lot of time making it.
Posts: 32413 | From: East Kilbride (Scotland) or 福島 | Registered: May 2001
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mr cheesy
Shipmate
# 3330
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Posted
I think one interesting outcome over the weekend has been to see Farage (and presumably a large constituency of people who think in similar ways) suggesting that judges are subverting the will of the people. Others have said that the government shouldn't be forced to "show it's hand" because "it isn't a binary".
To me this just gets to the root of the problem: the referendum was binary so saying "Brexit means Brexit" doesn't really cover the whole breadth of opinions on the topic. It seems like a lot of people voted Leave on the basis of immigration, did they also mean they want to leave the Common Market etc and so on?
Whichever way the Supreme Court rules (and I thank those who've tried to explain a contrary legal opinion), I think we're still in a bit of trouble here. If the SC rules that a Parliamentary vote isn't needed, then arguably Parliamentary Sovereignty has been usurped by the courts (if they can say that a vote is needed, then saying that a vote isn't needed must also show that they've got the final say).
May and co could then negotiate a package for Brexit which almost nobody agrees with - or at least it is impossible to know if a majority of people agree without asking them - for example full access to the Common Market, continued payment of fees to the EU for another 10 years without access to EU structural funds and no way to slow or prevent EU migrants.
On the other hand, giving a Parliamentary vote implies discussion of these issues in public, so even if the vote is overwhelmingly in favour of the Article 50 notification, the other EU nations will have gotten a feel for the weight of feeling in Parliament if not the country for different options.
I can't see that is a good thing either way around in terms of the UK Government's negotiating position or use of political capital. In the former, a large number of people are going to be annoyed whatever is agreed. In the latter, the EU leaders could just tell May to piss off with the golden divorce package the UK Parliament desires.
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arse
Posts: 10697 | Registered: Sep 2002
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mr cheesy
Shipmate
# 3330
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Posted
Another thing I was reflecting on is that Scotland must have almost zero chance of (re)joining the EU. The UK is a net contributor, Scotland would be a net beneficiary. The EU would be losing money.
If anything this is where the UK has some advantage in the EU discussions. What shockwaves would there be to the EU if a major contributor left?
Which makes me think that if the EU leaders really are committed to giving as little to the UK as they're saying (leaving a trade deal similar to the one with Canada), they're going to be squeeze as much out of the UK in divorce payments as possible.
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arse
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Alan Cresswell
Mad Scientist 先生
# 31
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Posted
I admit I don't understand all this "not showing our hand" stuff - except that it provides a smokescreen to obscure the fact that the government doesn't have a hand to show.
The Scottish government produced a substantial book detailing what they wanted out of independence negotiations prior to the 2014 referendum. No one said it was a stupid idea to have given the details of what they wanted before starting negotiations (or, even getting the go ahead to negotiate through the referendum vote - which, of course, they didn't get).
The first thing that will happen in negotiations is that the UK government will put a package on the table of what they want, what is wrong with first finding out if that's what we, the people, want?
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Don't cling to a mistake just because you spent a lot of time making it.
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