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Is all EU law a creature of a treaty?

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Is all EU law a creature of a treaty?

Postby tulkvmoxhay » Sat Nov 05, 2016 6:14 pm

Is it true that the Crown is the state's High Contracting Party in International Treaties?
Does the rest of this follow?
i) Parliament, if it has a role, is that of ratification ex post facto either yea or nay, without the right of amendment in respect of treaties.
ii)The same is true of termination as it is of accession to international treaties
iii) Up till 1972 no international treaty created domestic law in and of itself.
iv) The European Communities Act was an unprecedented International Treaty rightly only ratified after the event by Parliament.
v) The treaty and the subsequent ratification through the ECA was a uniquely enormous and fundamental constitutional amendment. For the first time since Danelaw it made both Parliament and the judicial process subservient to other law -- that subservience flowed from the treaty.It is written in the document.
vi) After the treaty it was the treaty and nothing but the treaty that allowed for law of direct application along with domestic legislation which had to be enacted subject to sanction in order to accommodate foreign law that was promulgated outside the jurisdictions of the United Kingdom.
vii) Thus all EU law and the 'rights' therefrom are a creature of an international treaty.

If the above is correct then does the High Court misdirect itself when it dismisses this argument in regard to extinction of domestic 'rights' and are the chatterati wrong that pre-vetting of an international treaty obligation is the proper role of the Houses of Parliament?
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Re: Is all EU law a creature of a treaty?

Postby atticus » Sat Nov 05, 2016 7:06 pm

Welcome. Good user name!

Point iv cannot be right, as the European Communities Act 1972 is an Act of Parliament.

I can also say that in many cases UK legislation has been enacted to implement EU directives (TUPE being an example that springs to mind). sometimes UK law has 'gold plated' EU law, in that it goes further than the minimum levels stipulated in EU directives.
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Re: Is all EU law a creature of a treaty?

Postby theycantdothat » Sat Nov 05, 2016 8:06 pm

v) The treaty and the subsequent ratification through the ECA was a uniquely enormous and fundamental constitutional amendment. For the first time since Danelaw it made both Parliament and the judicial process subservient to other law -- that subservience flowed from the treaty.It is written in the document.

That is incorrect. EU law becomes British law because a British Act of Parliament says it does. What Parliament does it can undo. Parliament remains supreme.
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Re: Is all EU law a creature of a treaty?

Postby dls » Sat Nov 05, 2016 9:45 pm

Does the rest of this follow?

Probably not quite in the terms you suggest.

i) Yes.
A treaty will come as an entire pre-packaged entity. It has already been signed. Opportunities for modifiation are usually nil. So Parliament eith ratifies it or it doesn't
ii) Possibly, but it happens very much less often, and i suspect that it is much less tidy
iii) IN England in England you may be correct, but Europe already operated under much of this arrangement. Nor dies the treaty make domestic law, but the European Commission and Parliament (not the Treaty but by virtue of the treaty) make Regulations which have direct effect, and Directives which require local legislation and do not have effect unless and until.

The Act was not the Treaty
It was indeed a whopper. Unravelling it will be worse
vI is an over statement as is vii
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Re: Is all EU law a creature of a treaty?

Postby tulkvmoxhay » Sun Nov 06, 2016 9:44 am

Thanks to all for the replies. Forgive my misstating or mistyping perhaps point iv.In essence I suppose I was trying to raise the issue for debate that in Constitutional terms the 1972 Act was unlike any other.It pulled a plug literally on those sovereignties debated by AV Dicey. No longer was English law a closed system and Parliamentary puissance was inexorably draining away from that date.The judicature recognised its new position in Constitutional terms from that date (Purposive approach, Factortame et al), while Parliament maintained a fiction of supremacy.
And despite its enactment in terms, the ECA was a simple ratification by a body no longer supreme in Constitutional terms of the Crown's previous Treaty as the Crown's Treaty had deposited sovereignty elsewhere -- in the International Organisation that became the EU.
The EU has, in Lisbon, provided a Treaty method of withdrawal. The UK Crown as signatory can act upon that without reference to Parliament. Thereafter and I mean after, not before, Art 50, then Parliament is entitled to ratify or not.
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Re: Is all EU law a creature of a treaty?

Postby atticus » Sun Nov 06, 2016 9:56 am

It pulled a plug literally?
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Re: Is all EU law a creature of a treaty?

Postby tulkvmoxhay » Sun Nov 06, 2016 4:52 pm

Oops, too early in the morning. I hate myself... well, metaphorically.
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Re: Is all EU law a creature of a treaty?

Postby atticus » Sun Nov 06, 2016 5:58 pm

So, the question is ...
tulkvmoxhay wrote:Thanks to all for the replies. Forgive my misstating or mistyping perhaps point iv.In essence I suppose I was trying to raise the issue for debate that in Constitutional terms the 1972 Act was unlike any other.It pulled a plug [metaphorically] on those sovereignties debated by AV Dicey. No longer was English law a closed system and Parliamentary puissance was inexorably draining away from that date.The judicature recognised its new position in Constitutional terms from that date (Purposive approach, Factortame et al), while Parliament maintained a fiction of supremacy.
And despite its enactment in terms, the ECA was a simple ratification by a body no longer supreme in Constitutional terms of the Crown's previous Treaty as the Crown's Treaty had deposited sovereignty elsewhere -- in the International Organisation that became the EU.
The EU has, in Lisbon, provided a Treaty method of withdrawal. The UK Crown as signatory can act upon that without reference to Parliament. Thereafter and I mean after, not before, Art 50, then Parliament is entitled to ratify or not.
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Re: Is all EU law a creature of a treaty?

Postby Smouldering Stoat » Sun Nov 06, 2016 6:20 pm

I would answer the question in the negative. Passing the European Communities Act did not involve the surrender of Parliamentary sovereignty; EU law was incorporated into domestic law only because Parliament said so; and only while Parliament said so. Parliament could have declined to pass the Act; in which case that law would not have been incorporated. It could repeal the Act, in which case EU law would cease to have effect.

Sovereignty is vested where it always has been.
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Re: Is all EU law a creature of a treaty?

Postby theycantdothat » Sun Nov 06, 2016 11:41 pm

Smouldering Stoat wrote:I would answer the question in the negative. Passing the European Communities Act did not involve the surrender of Parliamentary sovereignty; EU law was incorporated into domestic law only because Parliament said so; and only while Parliament said so. Parliament could have declined to pass the Act; in which case that law would not have been incorporated. It could repeal the Act, in which case EU law would cease to have effect.

Sovereignty is vested where it always has been.


Agreed except that I do not think that if the Act is repealed all EU law is also repealed.
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