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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 dls » Thu Dec 08, 2016 12:26 pm

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.


Why would there be friction between Parliament and the executive here? The vast majority of material passed by Parliament originates with the executive - you make a strange assumption that the executive would not equally be involved in the presentation of such a measure to Parliament.

Equally there are many very strange and unlikely events which if they happened would put us in conflict with Europe. A putinesque assassination of a senior EC offical for example.
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Re: Is all EU law a creature of a treaty?

Postby tulkvmoxhay » Thu Dec 08, 2016 1:07 pm

I agree that if there were agreement between the executive and Parliament that the UK should or could challenge the will of the EU and ECJ in regard to a certain directive then there would be no friction domestically. I suppose I was imagining a Parliament intoxicated by, as I posit, its false view of supremacy post ECA ('EU law is only law because we say it is'), pitted against a government of the day that made the Liberal Party look like Eurosceptics. A government that wished inter alia to promulgate ever closer union and an EU army by the end of the week would thus have no wish to defy the rule of law in regard to the particular directive. That would be the point of friction I imagined and it would throw into relief the eventual conclusion, as I would argue, that there was no longer sovereignty inherent in the proceedings of the English Parliament when EU law was considered, notwithstanding the present Dicey fiction. The law would have to be tested in a manner not dissimilar to the present case before the Supreme Court. The ECJ would eventually be called upon to guide the Supreme Court to review this point and the Supreme Court would, in my opinion, be forced to construe its decision in order to project the will of the supreme body to which it was answerable. Where it went or the constitution goes thereafter is speculation.
I am not sure how to address the second hypothetical. Do you have any particular EU official in mind? Should I call the authorities?
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Re: Is all EU law a creature of a treaty?

Postby LoveandPeace » Mon Jan 02, 2017 8:22 pm

If this is not too much to ask (as in a big ask) is it known how many EU passed laws incorporated into UK law was opposed by the majority of our UK MEP's?
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Re: Is all EU law a creature of a treaty?

Postby dls » Tue Jan 03, 2017 6:24 am

Welcome landp

The question you ask is unknowable. How would measure 'how an MP might have voted'
How many MPs would vote for something they opposed?
Oppose how strongly.
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Re: Is all EU law a creature of a treaty?

Postby LoveandPeace » Wed Jan 04, 2017 9:07 pm

dls wrote:Welcome landp


Thank you Mr S. It's appreciated.

dls wrote:The question you ask is unknowable. How would measure 'how an MP might have voted'.


I thought I'd pose the question incase anyone had come across a site similar to theyworkforyou. I don't know if all voting is on it this site but there is some.

dls wrote:How many MPs would vote for something they opposed?


In terms of UK's MEP's I was curious to know of how many times the majority of our MEP's voted against a directive that was implemented into UK law. I doubt I'll get that answer was wondering if anyone had any quirks up their sleeves around here I'm not aware of. Possibly Political Parties will have data on that.

I am not of any great knowledge of the EU system. I said EU Law in previous post, am I correct to say I should have said directives? I'm reading and reading and reading.

Still trying to figure if our UK law will be affected by Brexit. Are the directives now law? Will they fall away in event of Brexit? I have read this discussion several times and I'm still confused on what happens to the EU Law/Directives.

Apologies if I'm using all the wrong legal terminology but that's because I don't have a clue what I'm talking about. Trying to learn.
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Re: Is all EU law a creature of a treaty?

Postby Smouldering Stoat » Wed Jan 04, 2017 9:59 pm

Votewatch.eu is the best resource on EU Parliamentary votes. There's a Commons Library note on how to get the best from it which I can't lay my hands on at the moment. I'll post a link if I find it.

The data you require - the proportion of EU law that was opposed by British MEPs - isn't available, or at least not that I can find. I suspect that, if anyone had run that kind of analysis, one side or the other would have used it in the referendum debate, or if not it would have turned up in a Commons Library briefing paper. It would be a highly labour-intensive task to go through every EU regulation and directive, find the relevant vote in the European Parliament, and compare the votes of the British delegation with the result. It would be possible but not very informative.

Remember also that the majority of British MEPs aren't from the same party as the British government: so an EU law may be supported by the government, but opposed by our MEPs.

The EU makes two kinds of law: Regulations which have direct effect, and Directives which are, in effect, instructions to member states to make a particular law themselves. Britain has to pass an Act of Parliament, or introduce secondary legislation, to bring a Directive into effect. When we leave the EU regulations would cease to have effect, which would leave us with no law on those matters, so the government proposes to pass an Act of Parliament (the "Great Repeal Act") to preserve all EU law as it is when we leave.
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Re: Is all EU law a creature of a treaty?

Postby LoveandPeace » Thu Jan 05, 2017 8:16 pm

Smouldering Stoat wrote:Votewatch.eu is the best resource on EU Parliamentary votes. There's a Commons Library note on how to get the best from it which I can't lay my hands on at the moment. I'll post a link if I find it.


Thank you, what a fantastic tool I had browse through it late last night.

LoveandPeace wrote: It would be possible but not very informative.


I partially agree with you. I know I would find the statistical and general analytical break down informative.

Smouldering Stoat wrote:Remember also that the majority of British MEPs aren't from the same party as the British government: so an EU law may be supported by the government, but opposed by our MEPs.

We still voted in the MEP's but I had never thought about what you've pointed out perviously.

All the different tiers to the cake can be so confusing and now the pillars supporting of the cake are crumbling. Fight or flight for the fairy sitting at the top, time can only tell.

I looked up the Regulations and Driectives. Regulations was the missing ingredient for me. Why two types? Why not just Directives or Regulations?

I'm now in hurry .... I wanted to quickly ask, do you think that law will be passed (the Great Repeal Act)? Any possibitly it might not get through?

Thank you for your help.
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Re: Is all EU law a creature of a treaty?

Postby Smouldering Stoat » Thu Jan 05, 2017 8:39 pm

My understanding is that Regulations tend to be more technical in nature: if you need to make regulations to harmonise the packaging of widgets across the single market, then it makes sense to issue Regulations to that effect.

On the other hand Directives set out the broad principles, leaving member states some discretion on how to implement them. For example, the Data Protection Act 1998 was passed to bring into effect an EU Directive (Directive 95/46/EC, since you asked).

Something needs to be passed in order to establish what laws will apply once we've left.
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Re: Is all EU law a creature of a treaty?

Postby LoveandPeace » Thu Jan 05, 2017 11:53 pm

Smouldering Stoat wrote:packaging of widgets

? I will look it up in a minute.
Smouldering Stoat wrote:On the other hand Directives set out the broad principles, leaving member states some discretion on how to implement them

Does that mean Directive vary from one country to another but with the same fundamental basis?

Smouldering Stoat wrote: For example, the Data Protection Act 1998 was passed to bring into effect an EU Directive (Directive 95/46/EC, since you asked).

Did the act come from EU regulation? I'm assuming it didn't. However, has that ever happened?

Smouldering Stoat wrote:Something needs to be passed in order to establish what laws will apply once we've left.


For clarification purposes when the law is passed will this be blanket coverage? Once it's passed will this apply to all of the outstanding EU law (regulations) or will this be our own pick & mix? Will this cover hundreds of laws? Is there any current estimation on the number of laws this affects?

Thank you.
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Re: Is all EU law a creature of a treaty?

Postby Smouldering Stoat » Fri Jan 06, 2017 5:51 am

LoveandPeace wrote:? I will look it up in a minute.


It wasn't meant to be a specific example.

Does that mean Directive vary from one country to another but with the same fundamental basis?


No. There is one Directive. But it is up to member states how to implement it.

Did the act come from EU regulation? I'm assuming it didn't. However, has that ever happened?


No, because EU regulations have direct effect. There's no need to repeat what they say in an Act.

For clarification purposes when the law is passed will this be blanket coverage? Once it's passed will this apply to all of the outstanding EU law (regulations) or will this be our own pick & mix? Will this cover hundreds of laws? Is there any current estimation on the number of laws this affects?

Thank you.


The Government says that it will transpose all of EU law into our domestic law exactly as it is at the moment we leave. We will then be able to change or repeal those we don't like, because they'll be part of British law not EU law. I'm not aware of any estimate of how many regulations are affected, but it must run into the hundreds if not thousands.
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