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

Re: Interesting portion of the Supreme Court Decision 24/01/

Postby Smouldering Stoat » Sat Jan 28, 2017 11:25 am

That is not correct.

Section 2(2) confers on Ministers powers to make secondary legislation for the purposes of implementing EU obligations. It does not restrict Ministers from doing anything.

Schedule 2 is about subordinate legislation: it has no relevance to primary legislation (that is, Acts of Parliament). It does not prevent the passing of an Act of Parliament because (a) it isn't about Acts of Parliament and (b) it is not legally possible to prevent Parliament from passing any Act.

Parliament is sovereign: it may pass whatever law it chooses. It is lawful for Parliament to legislate for withdrawal from the European Union.
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby triken3 » Sat Jan 28, 2017 12:21 pm

The Supreme Court decision at para 90:
"The EU Treaties as implemented pursuant to the 1972 Act were and are unique in their legislative and constitutional implications. In 1972, for the first time in the history of the United Kingdom, a dynamic, international source of law was grafted onto, and above, the well-established existing sources of domestic law: Parliament and the courts. And, as explained in paras 13-15 above, before (i) signing and (ii) ratifying the 1972 Accession Treaty, ministers, acting internationally, waited for Parliament, acting domestically, (i) to give clear, if not legally binding, approval in the form of resolutions, and (ii) to enable the Treaty to be effective by passing the 1972 Act."

"grafted onto, and above, the well-established existing sources of domestic law: Parliament and the courts". Therefore, any Act Parliament enacts subsequent to 01/01/73 is subject to the ECA 1972, and thus becomes subordinate legislation to the ECA 1972, in exactly the same way that any Regulation is subordinate to its enabling Act of Parliament.

Schedule 2(2) explains the meaning in the ECA 1972 of the term 'subordinate legislation' ; (2)In this paragraph “subordinate legislation” means any Order in Council, order, rules, regulations, scheme, warrant, byelaws or other instrument made after the coming into force of this paragraph under any Act, Act of the Scottish Parliament [F5, Measure or Act of the National Assembly for Wales] or Northern Ireland legislation passed or made before or after the coming into force of this paragraph.]

And that is why the Human Rights Act 1998 section 3 (1) imposes on any public authority, when interpreting legislation, this requirement ;(1)So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2)This section—

(a)applies to primary legislation and subordinate legislation whenever enacted;

It does not use the long established terms of primary legislation and secondary legislation, precisely because while the ECA 1972 remains in force it is the only primary legislation.

In any heirarchy, there can only be one superior.
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby Smouldering Stoat » Sat Jan 28, 2017 12:49 pm

No. That is not correct. The European Communities Act says that EU law is grafted onto our legal system because Parliament says so, and only while Parliament says so. Parliament could repeal the ECA on Monday morning and EU law would immediately cease to have effect in our legal system.

Article 50 says that we may leave. The UK Supreme Court says that Parliament must authorise the sending of the appropriate notice.
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby triken3 » Sat Jan 28, 2017 5:06 pm

Which part of the ECA 1972 mentions Parliament?
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby Smouldering Stoat » Sat Jan 28, 2017 5:35 pm

The preamble. Also, section 1(3) provides for Parliamentary control of accession to further EU treaties, schedule 2 - which we have discussed above - provides in some detail for Parliamentary approval of secondary legislation made under the Act. Nothing in the Act, express or implied, prevents Parliament from repealing the Act.

You will observe that Parliament has exercised its power to amend and repeal quite a lot of the Act over the years. In due course Parliament will repeal the whole thing. I would prefer that we remained, but it really is an exercise in futility to say we cannot leave.
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby dls » Sat Jan 28, 2017 8:02 pm

Indeed so far as the EU is concerned, we issue an article 50 notice (in accordance with whatever now clarified requirements exist) and, so far as they are concerned two years later we are out - they cease to have any further interest or control.
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby triken3 » Sun Jan 29, 2017 3:54 am

I have never said, nor believe, that we cannot leave, and I agree wholeheartedly that would be an exercise in futility.

But, Article 50 requires the process to be according to the 'constitutional arrangements' of the Member State.

If a notice is issued by anything other than the 'new constitutional process for making law in the United Kingdom' imposed by the ECA 1972, then it will then be open to a challenge as to the lawfulness of that notice.

And for the purposes of any legal proceedings, which obviously covers a notice of withdrawal, a question of the meaning or effect of the ECA 1972 has to be referred to the European Court.

Many 'experts' predicted that this could end up before the European Court.

When the Lisbon Treaty was negotiated, Britain gained a written acknowledgement that it could leave if it wanted to, but on the proviso that it follows a certain process.

I do not believe the Bill presented to Parliament qualifies, and will be challenged.
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby dls » Sun Jan 29, 2017 8:07 am

a question of the meaning or effect of the ECA 1972 has to be referred to the European Court.


You will need to support that. It is a rather strange assertion.

There are indeed people for whom membership of the EU and all its manifestations is religious belief. Challenges to that belief are, in their terms, necessarily wrong. It is a belief held a priori. There will be more challenges, and some may be at a point where a reference to the ECJ is appropriate, but not, I think, as to the interpretation of teh ECA 1972.
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby atticus » Sun Jan 29, 2017 8:32 am

There are people for whom it is an article of the blindest and most virulently held faith that the EU must be left, even destroyed.
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Re: Interesting portion of the Supreme Court Decision 24/01/

Postby triken3 » Sun Jan 29, 2017 10:09 am

"You will need to support that. It is a rather strange assertion."

Certainly, when the UK joined the EU, the Crown and the UK Government duly accepted liability for the implementation of EU law in the UK. They are bodies of the Union.

In one respect they became conscripts of the EU, just like the British forces under the command of Monty that fought in Europe from D-Day to May 1945 were conscripted to the jurisdiction of an American General.

I refer to a passage from the speech of Lord Bridge of Harwich in Factortame (No 2) [1991] 1 AC 603, 658 – 659:
“Some public comments on the decision of the European Court of Justice, affirming the jurisdiction of the courts of member states to override national legislation if necessary to enable interim relief to be granted in protection of rights under Community law, have suggested that this was a novel and dangerous invasion by a Community institution of the sovereignty of the United Kingdom Parliament.

But such comments are based on a misconception.

If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the E.E.C. Treaty… it was certainly well established in the jurisprudence of the European Court of Justice long before the United Kingdom joined the Community.

Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law.

Similarly, when decisions of the European Court of Justice have exposed areas of United Kingdom statute law which failed to implement Council directives, Parliament has always loyally accepted the obligation to make appropriate and prompt amendments. Thus there is nothing in any way novel in according supremacy to rules of Community law in those areas to which they apply and to insist that, in the protection of rights under Community law, national courts must not be inhibited by rules of national law from granting interim relief in appropriate cases is no more than a logical recognition of that supremacy.”
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