Brexit will be a Titanic Success - Boris Johnson

doe808

prosaver wrote: »

Done some more research..its a bit long winded but does make a point.
I quote.....
European Communities Act 1972 and Royal Prerogative

As noted above, Article 50 is a one-way street that, at the eclipse of two years without a deal to the contrary, releases the United Kingdom of its Treaty obligations. If it is the Government who activate Article 50 then they would be utilising the Royal Prerogative to take the United Kingdom out of the European Union despite the fact that the European Communities Act 1972 (“ECA”) expresses Parliament’s wish for EU law to apply domestically (section 2 ECA). In other words, this Act functions as an incorporating statute, bringing the United Kingdom’s international obligations into the domestic sphere with domestic effect. Barber, Hickman, and King argue “the obvious intention of the Act is to provide for the UK’s membership of the EU and for the EU Treaties to have effect at domestic law. The purpose of triggering Article 50 would be cut across the Act and render it nugatory”.

The argument goes that because withdrawal would render the 1972 Act hollow it would cut across Parliament’s intention in enacting the ECA. Since Parliamentary intention trumps prerogative power, the Royal Prerogative cannot be used to initiate the withdrawal process. Instead, it must be Parliament that does so.

Whilst incredibly well argued, this is not an argument that I agree with. The ECA was undoubtedly enacted to give effect to the United Kingdom’s international obligations vis-!-vis the European Union at the domestic level. However, regardless of such an Act, as a matter of international law the United Kingdom would already be bound at the international level. The ECA merely transposes these international obligation into the United Kingdom’s law in accordance with the constitution’s dualist approach to the domestic effect of international law. The use of the Royal Prerogative in initiating Article 50 will not repeal or modify the ECA. That is undoubtedly for Parliament to do. All it would do is alter the Treaties at the international level to remove the United Kingdom from its international obligations. This is entirely consistent with the will of Parliament as expressed in the ECA, which is to automatically give effect to European Union law as it applies to the United Kingdom at the domestic level. However, the relevant Treaties of the European Union govern European Union law and these Treaties are enlarged or reduced in scope, from the United Kingdom’s perspective at least, by the Government’s representative(s) acting under the Royal Prerogative. Therefore, the Royal Prerogative can be used to activate the Article 50 procedure.

Barber, Hickman, and King suggest that because section 2 ECA “provides that all such rights, powers, liabilities, obligations and restrictions” coming from the Treaties are part of the domestic law Article 50 could not be activated by the Executive because that would cause a loss of rights provided by European Union law. The idea here is that because Parliament provided for rights to be incorporated domestically under the ECA the Executive cannot use the Royal Prerogative to frustrate that purpose by initiating the withdrawal process (and therefore take rights away from citizens). This normative argument is based on a fallacy; the ECA provides that rights “from time to time arising” under the Treaties to apply domestically. Those rights can increase in scope (as has been the general trajectory of the European Union project) but, likewise, they can be restricted. There could be a Treaty change, for example, that abolishes the European Parliament. This would, on a strict analysis, only require assent from the United Kingdom via the Royal Prerogative and not from Parliament, despite the loss of a democratic “right”.

The authors may argue that a lowering of rights is acceptable within the current framework because that works within the European Union, whereas Article 50 would result in a withdrawal, which “cuts across the whole object and purpose of the 1972 Act, which is to make the UK part of the EU”. However, this is misguided. The 1972 Act was not designed to make the UK party to the European Union; it was rather to incorporate our international commitments into the domestic sphere. One way to demonstrate this is to reverse engineer the argument; if the Royal Prerogative had not been used to join the European Union but Parliament had still passed the ECA, the United Kingdom would not joined the European Union. Barber, Hickman and King seem to revert to potential arguments along these lines and dismiss any such contention as “a very formalistic analysis”. With respect, I contend that what they consider formalism is in fact the recognition of the important distinction between international legal obligations and the domestic legislation that may give effect to such. We are party to the European Union because of the Royal Prerogative, and we will leave the European Union because of the Royal Prerogative..Ref https://ukconstitutionallaw.org/2016/07/08/thomas-fairclough-article-50-and-the-royal-prerogative/

Buts thats been proved wrong by what happened with the ruling. And the ruling is the law, unless overturned by the supreme court, or an Act of Parliament.

Over 1000 barristers signed a letter to the Government setting out what the law was, prior to the referendum. Why didn't the Government listen?

It will be interesting to see how the Supreme Court will deal. As has been pointed out, they have limited scope here.

They must go for an Act. Otherwise Daily Mail readers will actually be out lynching judges in the street.

talexuser

EnglishMohican wrote: »

I do not know the intricacies of British Parliamentary law to comment on the Judges decision. I also doubt if anybody else on here does.

The first sentence sums it up distinctly, the second is plain wrong.

prosaver

doe808 wrote: »

Buts thats been proved wrong by what happened with the ruling. And the ruling is the law, unless overturned by the supreme court, or an Act of Parliament.

Over 1000 barristers signed a letter to the Government setting out what the law was, prior to the referendum. Why didn't the Government listen?

It will be interesting to see how the Supreme Court will deal. As has been pointed out, they have limited scope here.

They must go for an Act. Otherwise Daily Mail readers will actually be out lynching judges in the street.

There are 15,000 barristers and 115,000 solicitors. In the uk ..so only 1000 signed a letter...
I would ignore it too.
Anyway its up to the supreme court now ..let hope the papers know who the judges are before the decision made, to see if the have got any EU ties, conflict of interest. .
Forget the high archee (spell?) Super mind rubbish.

talexuser

prosaver wrote: »

its getting like the us elections

Did you see the Michael Moore program on TV the other week where he had the old clip of Trump saying what a super intelligent, charming and wonderful woman Hilary was? This I think from memory is yet a different clip:
https://www.youtube.com/watch?v=Q76rxpKm3m4
He invited the Clintons to his wedding, and was desperate to go to Chelseas'.
http://www.vanityfair.com/news/2016/08/donald-trump-chelsea-clinton-wedding

Unfortunately there are very few honest politicians.

doe808

prosaver wrote: »

There are 15,000 barristers and 115,000 solicitors. In the uk ..so only 1000 signed a letter...
I would ignore it too.
Anyway its up to the supreme court now ..let hope the papers know who the judges are before the decision made, to see if the have got any EU ties, conflict of interest. .
Forget the high archee (spell?) Super mind rubbish.

Those who signed were the preeminent constitutional minds in the UK, if you had read it. I don't know how much weight would have been added to it had a lawyer who specialises in parking fines signed. But just you go on and ignore things that dont suit your agenda.

Anyway you do know that all judges do is interpret what the law of the land?

EnglishMohican

talexuser wrote: »

The first sentence sums it up distinctly,

Thats why I said it, though I think you meant succinctly.

talexuser wrote: »

the second is plain wrong.

And your justification for that is .....

Dead easy to write silly one-liners that establish nothing. Can you not do better than that?

talexuser

EnglishMohican wrote: »

And your justification for that is .....?

the facts as explained at length by various posters above.

colsten

prosaver wrote: »

Anyway its up to the supreme court now ..let hope the papers know who the judges are before the decision made, to see if the have got any EU ties, conflict of interest.

anyone can easily find out who all the Supreme Court Judges are. Luckily it is not down to the papers who gets appointed a Supreme Court judge.

prosaver wrote: »

Forget the high archee (spell?) Super mind rubbish.

that does indeed sound like rubbish

Freecall

prosaver wrote: »

its news to me it was advisory.
didnt say on the voting form ..yes or no... btw this is advisory..
Its shocking that the people have been fooled by all of the government MPs
,

Given that the 2015 Referendum Act was passed with a briefing paper to MP's which clearly explained that the referendum would only have advisory effect, how can anyone now reasonably suggest that it should be interpreted otherwise?

This is not some technicality, parliament was told (and fully understood) that the purpose of the referendum was to inform it of the views of the electorate.

Now that it has that information, it can decide how to act.

EnglishMohican

talexuser wrote: »

the facts as explained at length by various posters above.

Mostly these "facts" are cut and pastes from various publications and many of the other posts are people squabbling over the wording of those cut and pastes. But if you want to consider that that makes them experts in Constitutional Law, then I can understand why you believe everything economists tell you.