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Treaties and Parliament

Re: Treaties and Parliament

Postby Hairyloon » Tue Nov 28, 2017 11:20 pm

tulkvmoxhay wrote:Why is it truly exceptional? As a nation we have conquered territories, annexed territories, made war, made peace, made alliances, withdrawn from alliances, sat around tables and divided up Europe and the world with other nations as equals.

Those are everyday activities for this nation are they? I suggest that any and all of the examples were exceptional... or at least they were the first time we did it.

But in any case, this situation is certainly exceptional because at no previous time in our history has Parliament allowed the government to take a course of action that the majority (in the House) think is a bad idea.
You may note that I avoid saying that parliament has decided to take that course: as far as I can tell they have not done.

So the "truly exceptional" argument could be viewed as nothing more than a cloak under which hides the usurpation of a power of the Executive on this one partisan issue but whose unintended consequence will stand from this time forward.


Isn't the fundamental principle that any and all power is derived from the people? That power is lent to parliament who delegate some of it to the executive: how can they usurp power that was theirs to begin with?

We elect cabinet government in the UK..


Do we? I think we elect a parliament, from which a cabinet is imposed upon us.
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Re: Treaties and Parliament

Postby tulkvmoxhay » Tue Nov 28, 2017 11:45 pm

I agree with much of your position. Yes the Constitution is whatever one says it to be.
My original post was seeking comment or confirmation of an observation that the British Constitution is changing on this point or has been already changed. This has been brought about in part by a weak Executive not even bothering to define the status quo on this matter and letting the Parliamentary terrier yap and nip at its heels.
The conclusion I drew was that any precedent will make advantageous treaty negotiation for this country all but impossible. If political grandstanding and a parlous level of Parliamentary debate colours those future negotiations as it is doing in this. (One only has to think of that "cliff edge", those airlines not flying to Europe, pets banned from travel, a hard border bringing back the Troubles, the existence of the EU maintaining the peace in Europe for 70 years, food prices rising exponentially upon departure from the common external tariff, EU citizens being expelled and other such trite rehearsal of false news, repeated as it has been in the House as if it were true, to note how poorly informed the legislative branch appears to be).
The 1909 Budget and the subsequent Parliament Act redressed the balance between Commons and Lords to reflect that any vestige of informal, residual primacy of peers was indeed over. One wonders whether there should be a similar formalization by the sovereign Parliament of its curtailment of the Executive's hitherto free hand in the cut and thrust of negotiating treaties with other nations.
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Re: Treaties and Parliament

Postby Hairyloon » Wed Nov 29, 2017 2:16 am

tulkvmoxhay wrote:The conclusion I drew was that any precedent will make advantageous treaty negotiation for this country all but impossible.

Isn't the best deal a deal that is best for everybody?
To seek advantage suggests we are trying to get one up on the other side, and that would not be fair.
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Re: Treaties and Parliament

Postby Smouldering Stoat » Wed Nov 29, 2017 6:27 am

I am afraid that I do not see what the objection is. We elect a sovereign parliament from whom the executive branch is drawn and to whom it is accountable. It is, and has always been the case for as long as we have had our current system, that the duty of Parliament is not only to pass legislation, but to hold the executive to account. In the past Parliament has gone so far as to impeach members of the government, a power which seems to have fallen into abeyance.

We do indeed operate a system of the separation of powers, but we do not raise that doctrine to the level of, say, the United States where the line is clearly defined. It is not unconstitutional for Parliament to scrutinise the work of Government, nor is it a constitutional novelty. Ministers have been answering Parliamentary questions for quite some time because it is axiomatic that Parliament has the power to demand that information. The OP wishes to limit the power of Parliament to hold the government to account. That would be a departure from our current constitutional arrangements.

Further, it is quite clear that Parliament has an unfettered ability to limit the prerogative rights of the government. For example, the prerogative power to call a General Election has been abolished.

It follows that it is quite in order for Parliament to demand information from the government which it requires to further its duty to hold the executive to account, and it is unconstitutional and a contempt of the High Court of Parliament for the government to refuse.

The OP wishes to limit the power of Parliament to have access to that information not because of some point of constitutional principle but because he finds it uncomfortable. It is easy to deride the consequences of Brexit if information about those consequences has been suppressed.

Before the referendum we were told that Brexit would lead to the restoration of the Westminster Parliament to its proper place. How times have changed.
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Re: Treaties and Parliament

Postby tulkvmoxhay » Wed Nov 29, 2017 8:49 am

On a point of information
Before the referendum we were told that Brexit would lead to the restoration of the Westminster Parliament to its proper place. How times have changed.

I fear that your point of the "we were told...proper place " is not quite accurate. The notion has latterly -- only after the referendum -- been re-interpreted and narrowed down to Parliamentary sovereignty for the convenience of those arguing one side of the debate. What was being offered to 'we, the people', was a larger, more nebulous perhaps, concept of 'popular sovereignty' in which the volition to submit as a people and as an electorate to the construct called Parliamentary sovereignty was but a part.
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Re: Treaties and Parliament

Postby Hairyloon » Wed Nov 29, 2017 10:12 am

What we were not offered was the opportunity to abandon democracy in favour of diktat by the executive, yet that is what we appear to have done.
Beginning with the decision to treat the referendum result as the answer to a question that was not asked: when was that point decided in parliament?

But isn't all this discussion of the distribution of power between parliament and the executive rather moot when the executive seems clearly to be in the pockets of the newspaper moguls?
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Re: Treaties and Parliament

Postby atticus » Wed Nov 29, 2017 12:26 pm

One wonders what the OP understands is meant by "taking back control", a phrase much bandied-about prior to 23 June 2016.

Here is what "Vote Leave" said at the time (note the £350m lie as well)
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Re: Treaties and Parliament

Postby dls » Wed Nov 29, 2017 1:10 pm

The UK constitution is flexible, and sometimes evolves quite quickly. For example . .


. .and teh way that parliamentarians have become ready to chicken out of difficult decisions by holding referenda.
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Re: Treaties and Parliament

Postby tulkvmoxhay » Wed Nov 29, 2017 1:28 pm

It was filed under Constitutional Law to avoid it being a 'he said, she said' about the merits or demerits of removing ourselves from a particular treaty.
It's about how future treaties can be safely arrived at if Parliamentarians take control of the substantive formation of treaties and then bicker from self-interest over i and ts. It is not bringing governance closer to the people. The capital punishment debates of the sixties proved a disconnect between Parliamentary thought and the "will of the people". The present debate if it proved anything proved intellectual rigor is not a close friend to most MPs. Which branch of government should be engaged in treaty-making and should Parliament's role solely be scrutiny ex post facto as the Act requires? These were the questions on the table...
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Re: Treaties and Parliament

Postby atticus » Wed Nov 29, 2017 1:30 pm

It is often wise to specify at the outset the questions that are being put on the table.
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