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Interesting portion of the Supreme Court Decision 24/01/17

Interesting portion of the Supreme Court Decision 24/01/17

Postby triken3 » Fri Jan 27, 2017 2:06 am

Judgement of the Supreme Court of the UK 24/01/17
Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union [2017] UKSC 5, 24th January 2017;

Regarding;
The status and character of the European Communities Act 1972;
Para 62. “The 1972 Act did two things which are relevant to these appeals.
First, it provided that rights, duties and rules derived from EU law should apply in the United Kingdom as part of its domestic law.[Section 2(1)]
Secondly, it provided for a new constitutional process for making law* in the United Kingdom.” [Section 2(2)]

Section 2(2);
(2)Subject to Schedule 2 to this Act, at any time after its passing.....any designated Minister or department may by order, rules, regulations or scheme , make provision—

(a)for the purpose of implementing any EU obligation]of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or

(b)for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above;

BUT;
Schedule 2 to this Act provides ;1(1)The powers conferred by section 2(2) of this Act to make provision for the purposes mentioned in section 2(2) (a) and (b) shall not include power—
(a)to make any provision imposing or increasing taxation; or

(c).confer any power to legislate* by means of orders, rules, regulations or other subordinate instrument, other than rules of procedure for any court or tribunal;

THE EFFECT AS CONFIRMED BY THE UK SUPREME COURT 2017;
Accordingly,by virtue of Section 2(2) (a) and (b),subject to Schedule 2, of the European Communities Act 1972, subsequent to the coming into force of the European Communities Act 1972, a Minister or Department of the Crown does not possess the power to make law in the United Kingdom,
and
any orders, rules, regulations or other subordinate instrument, [other than rules of procedure for any court or tribunal,] made by a Minister or a Department of the Crown, subsequent to the coming into force of the European Communities Act 1972, are not law in the United Kingdom and all such orders, rules, regulations or other subordinate instrument have no legal effect in the United Kingdom.

At Para63; “Further, any serious breach by the UK Parliament, government or judiciary of any rule of EU law intended to confer individual rights will entitle any individual sustaining damage as a direct result to compensation from the UK government: Brasserie du Pêcheur SA v Germany; R v Secretary of State for Transport (Ex p Factortame Ltd) (No 4) (Joined Cases C-46/93 and C-48/93) [1996] QB 404"


This explains what the Courts were trying hard not to say in Thoburn v Sunderland City Council(2003).

Lord Justice Laws dealt with an issue that raised the same question when he held; “The present state of our domestic law is such that substantive Community Rights prevail over the express terms of any domestic law, including primary legislation, made or passed after the coming into force of the ECA, even in the face of plain inconsistency between the two. This is the effect of Factortame (No 1) [1990] 2 AC 85.”
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby dls » Fri Jan 27, 2017 10:07 am

a Minister or Department of the Crown does not possess the power to make law in the United Kingdom,


You misread it. Ministers do not, generally, make laws, Parliament does. Parliament can make laws provided they do not contradict EU law. Parliament has thus made many hundreds of perfectly valid law each year since accession.
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby triken3 » Fri Jan 27, 2017 3:46 pm

Hi Mr. Swarbrick,

Thank you for your website. I have found it of great value.

But, I beg to disagree.

Parliament does not make laws.

Parliament merely debates the merits or demerits of an Act of Parliament which is drafted by the Crown, acting through the Executive Government of the day, and then votes whether to accept or table amendments to the Act which the Crown has commended to Parliament.

An Act of Parliament is in the Oath of Office of Privy Counsellors defined as an annexation of Authority made by the Crown.

If Parliament does vote to accept the Act, it is then enacted into a Statute by the Authority of Her Majesty.

A statute is defined as a legislated rule of A Society, which is only given the status of a law within the legal boundaries of that Society, and that status can only be achieved with the consent of the Members of that Society.

As Home Secretary Theresa May once admitted on BBC News that: “In the UK we Police by Consent”.

So, at no point has Parliament made a 'law' or enacted into existence a 'law' of the United Kingdom.

But, as I'm sure you are aware, the vast majority of Acts then empower a Minister or Department to make secondary legislation in the form of Regulations, etc.

These secondary statutes are then passed of as 'laws'.

I give an instance in my own personal experience;

When I made an enquiry as to what 'law' empowered the Secretary of State for Work and Pensions to disallow payment of benefit, I received the following email in reply:

Mr NoNames
 
ESA 2008 Regulations and Regulation 23 is the relevant law appropriate for your case. I cannot comment any further as I am the presenting officer for your case and will be present at the hearing.
regards
 
NoNames I Appeals and Presenting Officer I Dispute Resolution Team I James Cook House I Middlesbrough I TS1 2BA I Tel : 01642 305553


So a statute is passed off as a 'law'.
Last edited by atticus on Fri Jan 27, 2017 3:49 pm, edited 1 time in total.
Reason: no names rule!
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby atticus » Fri Jan 27, 2017 3:50 pm

A novel analysis.
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby triken3 » Fri Jan 27, 2017 4:28 pm

Well, the Supreme Court agrees that what the ECA 1972 introduced was " ..a new Constitutional Process for making laws in the United Kingdom"
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby triken3 » Fri Jan 27, 2017 5:40 pm

In Bulmer v. Bollinger (1974) Lord Denning spoke of the duty placed on the Judiciary by the ECA 1972:

“The Treaty is like an incoming tide. We must no longer speak or think of English law, as something of its own. We must speak and think of Community law, of Community rights and obligations and we must give effect to them”.

In the same manner in which, say the Governor of Alabama, may make rules that have effect only within the boundries of State of Alabama provided they do not conflict with or contradict the Constitution of, or laws of, the 'Society' that calls itself the United States of America, since accession, EU Law is Supreme, and Parliament is only allowed to give its consent to rules that have effect within the boundries of the 'Society' that calls itself the Commonwealth of the United Kingdom of Great Britain and Northern Ireland, and then only provided they do not conflict with or contradict the laws of the EU.

see SIMMENTHAL II 1977:
17 furthermore , in accordance with the principle of the precedence of community law , the relationship between provisions of the treaty and directly applicable measures of the institutions on the one hand and the national law of the member states on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law but - in so far as they are an integral part of, and take precedence in , the legal order applicable in the territory of each of the member states - also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with community provisions .
18 indeed any recognition that national legislative measures which encroach upon the field within which the community exercises its legislative power or which are otherwise incompatible with the provisions of community law had any legal effect would amount to a corresponding denial of the effectiveness of obligations undertaken unconditionally and irrevocably by member states pursuant to the treaty and would thus imperil the very foundations of the community.
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby atticus » Fri Jan 27, 2017 9:22 pm

Could I ask the OP to give a short one or two sentence summary of what he/she seeks to discuss?
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby triken3 » Sat Jan 28, 2017 5:31 am

Summary;
1. The Supreme Court at Para 62 has acknowledged the the ECA introduced a new constitutional process for making law in the United Kingdom.

2. Given the doctrine of implied repeal, therefore the 'old constitutional process for making laws in the United Kingdom' ceases to have any legal effect in the UK- further see Simmenthal II.

3. The 'old constitutional process for making laws in the United Kingdom' involved the Crown, through the Government of the day, drafting an Act of Parliament which Parliament is only allowed to vote yea or nay for. While the ECA 1972 is in force that 'old process' is rendered null and void and has no legal effect.

4. Article 50(1) states; "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements." In the UK that is the 'new constitutional process' introduced by the ECA 1972.

5. The Bill put before Parliament for triggering Article 50 is made under provisions of the 'old' constitutional process, which has no legal effect.

Question of Law; How can the Bill put before Parliament be used to trigger Article 50, when it does not meet the basic criteria established by Article 50(1) to enable a Member State to trigger Article 50?
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby atticus » Sat Jan 28, 2017 8:31 am

Having requested a one or two sentence summary, I think the OP's point is this.

The effect of the European Communities Act 1972 and related legislation is to take away from Parliament the power to make law. So Parliament does not have the power to pass a law authorising the Government to take the UK out of the EU.

Have I got that right?
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby triken3 » Sat Jan 28, 2017 10:57 am

No.

It is the Crown that is prevented from legislating in the United Kingdom for any purpose other than that allowed under Section 2(2)(a) and (b) while the ECA 1972 remains in force.

Read Section 2(2) and Schedule 2 of the ECA 1972 to understand the limitations and restrictions placed on the Queen in Council and any designated Minister that are referred to in Section 2(1).
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