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Is all EU law a creature of a treaty?

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Re: Is all EU law a creature of a treaty?

Postby tulkvmoxhay » Mon Dec 05, 2016 3:44 pm

I listened briefly to the exposition of the government case this morning and that appears to be anchored upon Parliament's historical recognition of the constitutional correctness of the power of the executive to make and unmake treaties. Aside from the present brouhaha, in a wider constitutional context this would appear to have merit. So the six little words are neither concealed nor relevant when applied to who is the high contracting party in a treaty and how is that party answerable in constitutional terms.

I am suggesting:-
In 1972 the executive properly formed a treaty without prior Parliamentary authorisation and that route was founded upon a constitutional verity dating back to time immemorial .
Parliament ratified the 1972 treaty, and by the wording of the Act upon which it freely chose to adopt the treaty into UK law it gave the original and importantly all subsequent treaties and amendments constitutional legitimacy without further legislation. The words are clear and are quoted by the Supreme Court in its summary.
From 1972 the Parliament allowed its sovereignty in certain matters of domestic law to be subsumed. Of that there can be no doubt. In those matters it received instruction from the new supreme legislative bodies of the EU. It was bound by the Treaty, which it ratified and mandated itself to do so. Thus Parliament did not 'create' EU rights, or "Miller Rights". The rights flowed from Treaty and legislative decisions of the EU, which the UK was bound to operate as agreed in the treaty and did so as a County Council is bound to apply national law.
Those and other rights, obligations etc, were considered in terms in the 1972 Act. Just as further enactments were not deemed necessary to create such rights, it follows that no such enactment is need to remove them. The rights disappear solely as a consequence of the unmaking of the treaties begun by Art 50.

To sum up. It could be argued:
i) Parliament has no prior place in foreign policy treaty negotiation
ii) Art 50 simply unmakes a treaty and this is an executive power
iii) Parliament has by the 1972 Act accepted that 'rights' and laws created elsewhere will hold sway in the laws of the United Kingdom without Parliament granting legislative permission.
iv) If the UK unmakes the EU Treaties, the unique rights so expunged, albeit domestic rights, are not creatures of the UK Parliament and thus fall away with the Treaty without the necessity form Parliamentary consideration
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Re: Is all EU law a creature of a treaty?

Postby theycantdothat » Tue Dec 06, 2016 11:15 am

iii) Parliament has by the 1972 Act accepted that 'rights' and laws created elsewhere will hold sway in the laws of the United Kingdom without Parliament granting legislative permission.

Change that to:

Parliament has by the 1972 Act accepted that 'rights' and laws created elsewhere will hold sway in the laws of the United Kingdom without the need for Parliament to ratify them.

iv) If the UK unmakes the EU Treaties, the unique rights so expunged, albeit domestic rights, are not creatures of the UK Parliament and thus fall away with the Treaty without the necessity form Parliamentary consideration

No. They are creatures of Parliament because Parliament said they would become law.
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Re: Is all EU law a creature of a treaty?

Postby tulkvmoxhay » Wed Dec 07, 2016 10:43 am

No. They are creatures of Parliament because Parliament said they would become law.
On this point, is it not a tenet of natural justice that, once given away with clear intent so to do, control over an object thus given is relinquished?
Parliament acceded to Treaty demands that all and every EU right and law would thereafter be law without a role for national parliaments. That was the point at which the "gift" was made. The question is whether claiming back this "gift" made in 1972 demands as a constitutional necessity for Parliament to resile from the previous abrogation of its duty in the matter of lawmaking made in 1972 (subsequent the Treaty).
That freely given relinquishment of Parliamentary sovereignty was and is demanded by a treaty obligation. As the High Contracting Party in such treaties with countries and the EU entity, is it not constitutionally the executive and only the executive that has primacy? So in context, The High Contracting Party follows the Art 50 procedure, and then subsequently Parliament does what is necessary to restore its puissance.
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Re: Is all EU law a creature of a treaty?

Postby dls » Wed Dec 07, 2016 10:48 am

Parliament acceded to Treaty demands that all and every EU right and law would thereafter be law without a role for national parliaments.


Not correct
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Re: Is all EU law a creature of a treaty?

Postby tulkvmoxhay » Wed Dec 07, 2016 10:50 am

Elaborate?
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Re: Is all EU law a creature of a treaty?

Postby dls » Wed Dec 07, 2016 11:59 am

No such demand was made and no such concession given.

Some European law has direct effect - the Regulations.
Directives (the bulk in practice of EU law) are iplemented with some discretion by the legislative bodies of the several member states - they take part.
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Re: Is all EU law a creature of a treaty?

Postby theycantdothat » Wed Dec 07, 2016 1:30 pm

As with much to do with the British constitution, one needs to distinguish between what generally goes on and what the position is when to comes to the crunch. The crunch is that the sovereignty of Parliament was not affected by accession to the treaty because Parliament has always been free to pass an act which says that, for example, directive number 123456 will not apply. More generally, Parliament has always had the right to pass an act which said that European law becoming British law would no longer apply or undoing European law already applying.

Whatever the position, it surely has to be the case that if at one stage Parliament said "laws promulgated by X become British law" that any laws promulgated by X remain British law until Parliament says otherwise, even if Parliament says "laws promulgated by X will no longer become British law". It was not acceding to the treaty that made European law British law, but an Act of Parliament.
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Re: Is all EU law a creature of a treaty?

Postby tulkvmoxhay » Wed Dec 07, 2016 8:03 pm

Parliament has always been free to pass an act which says that, for example, directive number 123456 will not apply.

My problem with what might be called the fiction of the 'Dicey construction' of the doctrine of Parliamentary supremacy after the ECA is threefold:-

1 Constitutionally such a decision as you outline in regard to a directive would be create untenable friction between the executive and Parliament, as it would put the country in direct breach of a prior treaty obligation. As a consequence of being in breach there would be sanction rightly applied by the supreme legislative body of the EU in to enforce implementation of directive 123456 in order to assert that same Treaty-created supremacy.
2 The Parliament of 1971-2 did not reserve to itself powers to reverse its donation of legislative supremacy away from itself. On the contrary...
3 Constitutionally, just as a county council might have the option in theory to deny enactment or implementation of a Parliamentary edict, primary or secondary, there would be sanction, for a county council is not a supreme but is a subordinate body. Supremacy in EU terms is no longer with Parliament and cannot be so until such time as Art 50 proceedings are completed and the treaties dissolved in regard to the UK. Accession to the treaty was in itself a fundamental, irreversible change to the doctrine of Parliamentary supremacy for as long as the treaty runs.
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Re: Is all EU law a creature of a treaty?

Postby Smouldering Stoat » Wed Dec 07, 2016 9:16 pm

1. So far as domestic law is concerned, it is neither here nor there whether the UK is in breach of its international obligations. There may or may not be consequences of that breach, but that doesn't change the law: it means that there are consequences from the legislative choices that Parliament makes. There are consequences which flow from every legislative choice which Parliament makes. It is quite open to them to choose to place us in breach of those obligations. I don't think that they should; but I accept that they could.

2. Parliament did not reserve any powers to itself because it has no need to do so. Parliament is sovereign and it is axiomatic that it could make provision for EU law to no longer be effective. If I may say so, your reasoning on this point is somewhat circular: it makes sense only if we accept that Parliament has surrendered its sovereignty. I don't accept that, and in that respect I refer you to s.18 of the European Union Act 2011 which reaffirms that EU law only applies in this country because Parliament says so. On the contrary, had Parliament intended to surrender its sovereignty it would have had to do so explicitly: see for example the Canada Act 1982 which terminated the Westminster Parliament's right to legislate for Canada.

3.I disagree. Parliament has not reduced itself to the status of a County Council. It remains sovereign and could, if it so chose, legislate to disapply EU law from our system. If it did so the courts would obey. I think that would be foolish, because it would place us in breach of our treaty obligations, but it is beyond doubt that Parliament could do so if it so chose. The UK's international obligations are only of interest to the courts inasmuch as Parliament is from time to time pleased to enact them.
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Re: Is all EU law a creature of a treaty?

Postby Smouldering Stoat » Wed Dec 07, 2016 9:21 pm

Incidentally I've moved this to Brexit where it seems to fit better.
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