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Old 06-12-2016, 16:18
HR Guru
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That's not legislation.

Please show us the legislation where you (the citizen) had the right to store or produce landmines and this was subsequently removed.

I don't need to look up Russell's teapot
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Old 06-12-2016, 16:18
Jellied Eel
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The Treaty doesn't prevent you from manufacturing or using land mines. Domestic legislation (the Landmines Act) does.
It's getting a bit pedantic now, but if you read that legislation, you'll see it cites the Ottawa Treaty.
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Old 06-12-2016, 16:20
Jellied Eel
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That's not legislation.
Ok, try this-

http://www.legislation.gov.uk/ukpga/1998/33/contents

I don't need to look up Russell's teapot
I really think you do. Legislation tends to prohibit rather than permit..
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Old 06-12-2016, 16:24
Aftershow
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It's getting a bit pedantic now, but if you read that legislation, you'll see it cites the Ottawa Treaty.
It's nothing to do with pedantry, it's about legal fact.

The Landmines Act came about because of the Ottawa Treaty, but it is the Act that enacts the prohibition in UK law, not the Treaty.
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Old 06-12-2016, 16:26
d'@ve
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"Parliament should not be assumed to have strained at a gnat but swallowed a camel".
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Old 06-12-2016, 16:31
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It's nothing to do with pedantry, it's about legal fact.

The Landmines Act came about because of the Ottawa Treaty, but it is the Act that enacts the prohibition in UK law, not the Treaty.
Was just going to say that but he struggles to understand that RP can't alter domestic law... there is no issue with domestic law being introduced following a treaty,

On top of that there is obviously the issue of citizens' rights... storing landmines hardly qualifies.
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Old 06-12-2016, 16:32
Jellied Eel
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The Landmines Act came about because of the Ottawa Treaty, but it is the Act that enacts the prohibition in UK law, not the Treaty.
The question was..

That is irrelevant in any event. We've never had any domestic law that specifically granted the right to manufacture or indeed use land mines in the UK... hence the treaty took nothing away.

The treaty required the Act to take away/make unlawful something that was previously a 'right', assuming you had the correct paperwork.

And I guess the relevance might be how we signed up to that treaty, and whether that would be affected by any decision in the current case. The Landmines Act would remain in force, and even if it was challengeable, TPTB still have plenty of other books they could throw at any miscreant who thought they could get into that business.
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Old 06-12-2016, 16:38
Orri
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I think it's more a test of power, especially as the limits of RP have been challenged.
The use of RP to meet a deadline on notifying the EU under A50 prior to the council elections in May 2017 and at a stretch the conclusions to the investigations into Electoral Fraud https://www.theguardian.com/uk-news/...-tory-election in June 2017 where there's a remote chance the current Government might lose it's majority is for the convenience of the current Government rather than a necessity.

I think we all know it's a test of power.
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Old 06-12-2016, 16:41
Aftershow
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The question was..

That is irrelevant in any event. We've never had any domestic law that specifically granted the right to manufacture or indeed use land mines in the UK... hence the treaty took nothing away.

The treaty required the Act to take away/make unlawful something that was previously a 'right', assuming you had the correct paperwork.

And I guess the relevance might be how we signed up to that treaty, and whether that would be affected by any decision in the current case. The Landmines Act would remain in force, and even if it was challengeable, TPTB still have plenty of other books they could throw at any miscreant who thought they could get into that business.
I was responding to your assertion that the Treaty prevents you from doing something, which it doesn't. Treaties are not directly applicable in this country.
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Old 06-12-2016, 16:56
Jellied Eel
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I was responding to your assertion that the Treaty prevents you from doing something, which it doesn't. Treaties are not directly applicable in this country.
I think it answers HR's question. The UK signed the treaty, so could hardly carry on licencing manufacture. Legislation may not have been necessary as other legislation could have denied licences needed.

But enough of that.. The Bbc's summary-

Here is the summary of the seven reasons that Lord Pannick gave for why he believed the government's case was wrong and the original High Court ruling backing his client should be upheld.

1: The 2015 referendum act doesn't give ministers prerogative to trigger Article 50 - doesn't mention it at all

2: While ministerial prerogative is used to enter into new treaties (such as EU membership) it can’t be used to change the UK constitution

3: Government must demonstrate Parliament has expressly handed over powers to ministers to supercede legislation. It hasn’t over Brexit.

4: Parliament did not intend the 1972 Act to create ministerial prerogative power to sweep away membership

5: Ministers can’t use prerogative power to frustrate legislation

6: None of the European Union-related acts created over 40 odd years give ministers power to trigger Article 50

7: Only an act of parliament can take away the rights linked to the EU that have been created since 1972 membership. “It is so obvious, so basic… These are matters for Parliament."


Which to me seems pretty weak-
1) The Act and the question made the intent pretty clear, at least to the public. It didn't need to mention A.50 as that's just the process to invoke. 2 & 3 pretty much rehash that point.

4) Nobody knows what was intended in 1972, just as Parliament in 1972 couldn't have predicted how the EU would morph from being a trading club to a federal superstate.

5) Ministers can use powers granted since '72 to frustrate all sorts of things, for example-

http://www.legislation.gov.uk/ukpga/2006/51/part/3

A gift from Labour, that keeps on giving.. Even in it's watered down form.

6) Or say they can't. The EU legislation doesn't even make it clear, but presumably assumes some responsible person somewhere can trigger it.

7) Triggering A50 doesn't take away any rights that aren't already enacted in current legislation, or could be enacted in future legislation.

So if the Bbc's summary is correct, it seems a pretty weak argument.
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Old 06-12-2016, 20:41
thenetworkbabe
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I think it answers HR's question. The UK signed the treaty, so could hardly carry on licencing manufacture. Legislation may not have been necessary as other legislation could have denied licences needed.

But enough of that.. The Bbc's summary-

Here is the summary of the seven reasons that Lord Pannick gave for why he believed the government's case was wrong and the original High Court ruling backing his client should be upheld.

1: The 2015 referendum act doesn't give ministers prerogative to trigger Article 50 - doesn't mention it at all

2: While ministerial prerogative is used to enter into new treaties (such as EU membership) it can’t be used to change the UK constitution

3: Government must demonstrate Parliament has expressly handed over powers to ministers to supercede legislation. It hasn’t over Brexit.

4: Parliament did not intend the 1972 Act to create ministerial prerogative power to sweep away membership

5: Ministers can’t use prerogative power to frustrate legislation

6: None of the European Union-related acts created over 40 odd years give ministers power to trigger Article 50

7: Only an act of parliament can take away the rights linked to the EU that have been created since 1972 membership. “It is so obvious, so basic… These are matters for Parliament."


Which to me seems pretty weak-
1) The Act and the question made the intent pretty clear, at least to the public. It didn't need to mention A.50 as that's just the process to invoke. 2 & 3 pretty much rehash that point.

4) Nobody knows what was intended in 1972, just as Parliament in 1972 couldn't have predicted how the EU would morph from being a trading club to a federal superstate.

5) Ministers can use powers granted since '72 to frustrate all sorts of things, for example-

http://www.legislation.gov.uk/ukpga/2006/51/part/3

A gift from Labour, that keeps on giving.. Even in it's watered down form.

6) Or say they can't. The EU legislation doesn't even make it clear, but presumably assumes some responsible person somewhere can trigger it.

7) Triggering A50 doesn't take away any rights that aren't already enacted in current legislation, or could be enacted in future legislation.

So if the Bbc's summary is correct, it seems a pretty weak argument.
its
they didn't put it in any thing about the prerogative, so they didn't intend it to be used
v
it existed so, if Parliament didn't add something to the contrary, the normal use of the prerogative would apply.

Parliament was told, by Hammond, that the referendum would decide the issue - they didn't vote thinking it was intended to be advisory - according to the government QC.

I don't see the rights thing. The Great Repeal Bill reinacts all rights - until Parliament disposes of them. The only rights lost ,relate to rights to do things in Europe. And the prerogative presumably applies there, over international affairs . You couldn't not declare war on Germany because British citizens couldn't travel there. or come here.
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Old 06-12-2016, 21:15
Jellied Eel
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Parliament was told, by Hammond, that the referendum would decide the issue - they didn't vote thinking it was intended to be advisory - according to the government QC.
Seems reasonable, and that's what we mere mortals were told as well. Out meant out etc. Counting the votes appears to have changed that though.

I don't see the rights thing. The Great Repeal Bill reinacts all rights - until Parliament disposes of them. The only rights lost ,relate to rights to do things in Europe. And the prerogative presumably applies there, over international affairs . You couldn't not declare war on Germany because British citizens couldn't travel there. or come here.
Me neither, and Scotland joining the fun makes it all the more bizarre given foreign policy isn't a delegated power. If it were, along with defence etc then they may have a point.. But currently Scotland is represented in Parliament so can contribute to national matters. And can't invade Panama to reclaim the Darrian Gap.

The bigger issue is how any ruling may relate to past or future treaties, agreements and use of prerogative powers. But another example. This time, not with a bang, but a whimper.

http://www.bbc.co.uk/news/science-environment-37888317

Signed by 193 countries in the French capital last December, the Paris Agreement is now international law, having been ratified by at least 55 countries representing over 55% of global emissions.

So only a few weeks ago, 20,000 NGOs, lobbyists and politicians flew into Morocco on a haze of jet fuel for the annual Conference of the Parties, where the UN hopes rich nations will give them $100bn a year to dole out to the less rich nations. And skim a few bucks for themselves.

The purpose of these extravaganzas is to get duly appointed representatives from those 193 countries (plus observers) in a room to thrash out line by line an agreement.. Which in future may not be possible, and the UK's rep will have to relay the proceedings to Parliament so they can all chip in, while the Minister responsible looks forlornly at the commemerative signing pen they'd hoped to pocket.

So it could actually be good news as the UK might not get invited to future treaty jamborees because the people who previously thought themselves responsible for negotiating on behalf of the UK.. won't be.

And people wonder why the government appealed the ruling..
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Old 06-12-2016, 22:32
Kiteview
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Parliament was told, by Hammond, that the referendum would decide the issue - they didn't vote thinking it was intended to be advisory - according to the government QC.
The opinion of one MP on a bill does not bind the others to share his or her opinion. MPs pass or reject the text of a bill and any proposed amendments to it.


I don't see the rights thing. The Great Repeal Bill reinacts all rights - until Parliament disposes of them. The only rights lost ,relate to rights to do things in Europe.
This is incorrect since your rights under the EU Treaties apply throughout the EU including here in the U.K. They are in many cases enacted in the domestic legislation of the relevant member state. As Parliament has enacted the legislation, the Government - in the opinion of the High Court - can't use the RP to bypass a decision by Parliament on those rights.
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Old 06-12-2016, 23:54
d'@ve
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I don't see the rights thing. The Great Repeal Bill reinacts all rights - until Parliament disposes of them.
The Great Repeal Bill does nothing until it exists. It doesn't currently exist, therefore it is nothing more than a point of interest with no legal relevance to the triggering of A. 50. It's a political promise, no more than that. Just like the Government's promises about the referendum result - also a political promise.

This was pointed out the other day by one of the judges in response to the Government's suggestions - but it didn't need to be, because it's obvious. Or should be. This case is about the legalities of the trigger, not the politics of Brexit. The legalities of the trigger must be done correctly because Article 50 says they must and that is what the supreme court are currently engaged in determining.
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Old 07-12-2016, 00:55
david16
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The government failing to win their supreme court battle to avoid article 50 having to go through parliament does not mean there will have to be a "running commentary" on government brexit negotiations with the EU.

Nobody's demanding a "running commentary" on those negotiations.
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Old 07-12-2016, 02:11
Aurora13
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I don't see the rights thing. The Great Repeal Bill reinacts all rights - until Parliament disposes of them. The only rights lost ,relate to rights to do things in Europe. And the prerogative presumably applies there, over international affairs . You couldn't not declare war on Germany because British citizens couldn't travel there. or come here.
View of judges during discussion was that the Repeal Bill was going to be irrelevant to this judgement. It is currently only a statement at Tory Party Conference and there are no substantive details. What might or might not happen in future cannot be used in legal ruling.
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Old 07-12-2016, 07:35
HR Guru
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The question was..

That is irrelevant in any event. We've never had any domestic law that specifically granted the right to manufacture or indeed use land mines in the UK... hence the treaty took nothing away.

The treaty required the Act to take away/make unlawful something that was previously a 'right', assuming you had the correct paperwork.

And I guess the relevance might be how we signed up to that treaty, and whether that would be affected by any decision in the current case. The Landmines Act would remain in force, and even if it was challengeable, TPTB still have plenty of other books they could throw at any miscreant who thought they could get into that business.
You honestly still don't understand that the RP can't alter domestic law? There was no domestic law that allowed you to make or keep landmines. If there would be a treaty that would make it illegal for you to go and see your local MP then that would alter your citizen rights and would be unconstitutional.
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Old 07-12-2016, 07:47
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its
they didn't put it in any thing about the prerogative, so they didn't intend it to be used
v
it existed so, if Parliament didn't add something to the contrary, the normal use of the prerogative would apply.

Parliament was told, by Hammond, that the referendum would decide the issue - they didn't vote thinking it was intended to be advisory - according to the government QC.

I don't see the rights thing. The Great Repeal Bill reinacts all rights - until Parliament disposes of them. The only rights lost ,relate to rights to do things in Europe. And the prerogative presumably applies there, over international affairs . You couldn't not declare war on Germany because British citizens couldn't travel there. or come here.
Your posts used to be really spot on but you somehow seemed to have lost it in regards to the court case. You strength lies with our political system and not our legal system and that is fine... but it makes your assessment of the court case wrong I'm afraid.

For starters, the GRB does not reenact any of the rights that are being questioned as being lost by default; it can't as they only exist whilst being an EU member. Nonetheless they are domestic rights as they have been granted by Parliament and not the EU - hence they can only be removed or altered by Parliament.

They far from relate to things that can only be done in Europe and your example of war with Germany does not grasp the concept of those rights (your example is absolutely fine to support the RP being used for declaration of war as no domestic right would be affected - travelling to Germany is not a domestic law).

A domestic law relating to the court case would be the right to rely on consumer rights all the way to the ECJU as granted by our parliament in a domestic Act of Law. Another one would be the right to return to the UK (as a UK citizen) after a period of absence and to pay home fees at university, based on EU citizenship but granted by Parliament as a domestic law. Another one would be to seek redress at the ECJU in employment matters protected by domestic Acts of Parliament.

All of these rights (and hundreds more) have been granted to you by domestic Acts but would be void be default upon leaving the EU... hence leaving the EU alters domestic law, which can and must only be done by Parliament.
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Old 07-12-2016, 07:51
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Seems reasonable, and that's what we mere mortals were told as well. Out meant out etc. Counting the votes appears to have changed that though.



Me neither, and Scotland joining the fun makes it all the more bizarre given foreign policy isn't a delegated power. If it were, along with defence etc then they may have a point.. But currently Scotland is represented in Parliament so can contribute to national matters. And can't invade Panama to reclaim the Darrian Gap.

The bigger issue is how any ruling may relate to past or future treaties, agreements and use of prerogative powers. But another example. This time, not with a bang, but a whimper.

http://www.bbc.co.uk/news/science-environment-37888317

Signed by 193 countries in the French capital last December, the Paris Agreement is now international law, having been ratified by at least 55 countries representing over 55% of global emissions.

So only a few weeks ago, 20,000 NGOs, lobbyists and politicians flew into Morocco on a haze of jet fuel for the annual Conference of the Parties, where the UN hopes rich nations will give them $100bn a year to dole out to the less rich nations. And skim a few bucks for themselves.

The purpose of these extravaganzas is to get duly appointed representatives from those 193 countries (plus observers) in a room to thrash out line by line an agreement.. Which in future may not be possible, and the UK's rep will have to relay the proceedings to Parliament so they can all chip in, while the Minister responsible looks forlornly at the commemerative signing pen they'd hoped to pocket.

So it could actually be good news as the UK might not get invited to future treaty jamborees because the people who previously thought themselves responsible for negotiating on behalf of the UK.. won't be.

And people wonder why the government appealed the ruling..
I think it's quite sad if you fail to notice the words "international law", which you even highlighted.

Nothing contained in this treaty alters domestic law or citizen rights in the UK.
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Old 07-12-2016, 07:56
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View of judges during discussion was that the Repeal Bill was going to be irrelevant to this judgement. It is currently only a statement at Tory Party Conference and there are no substantive details. What might or might not happen in future cannot be used in legal ruling.
The judges have by now alluded no less than 4 times that they want to know the content of the Great Repeal Bill, based on the fact that the ECA was debated, voted on and ratified prior to signing any treaty. They stopped short of implying (this is reserved for their ruling) that they require Parliament to put in place the Great Repeal Act PRIOR to giving notice on Article 50.

This goes in line with their argument that joining and leaving the EU has to be done, logically, by the same means; that is parliamentary preparation (i.e. Acts of Law) prior to joining or leaving.

The chance that this will be part of the ruling is currently 50/50 (and that's not just my opinion but also the consensus of a large number of constitutional experts who were, like me, spot on predicting the HC ruling).
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Old 07-12-2016, 09:12
Orri
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The conundrum is resolved if you understand that the requirement to create laws as part of a Treaty simply means that even though RP might be used to enter in to one that risks the UK being unable to fulfill its obligations by a refusal of it's legislature to enact laws in accordance with the terms of said treaty should that be a necessary condition of it. In the same way that breaking a treaty might remove individual rights, not necessarily within the UK, and if it does will require parliamentary approval.
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Old 07-12-2016, 09:20
Orri
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The judges have by now alluded no less than 4 times that they want to know the content of the Great Repeal Bill, based on the fact that the ECA was debated, voted on and ratified prior to signing any treaty.

That might be because there a restriction on the use of Royal Prerogative in cases where it's use is to avoid pending changes to the law. In that respect the Government has once again shot itself in the foot. I suspect that the reason for the March deadline is to have an official start to Brexit prior to the May 2017 local council elections both for the kudos that might give Conservative candidates and to mitigate the ongoing threat that UKIP candidates might either gain seats or divide the anti-EU vote.
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Old 07-12-2016, 10:36
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The conundrum is resolved if you understand that the requirement to create laws as part of a Treaty simply means that even though RP might be used to enter in to one that risks the UK being unable to fulfill its obligations by a refusal of it's legislature to enact laws in accordance with the terms of said treaty should that be a necessary condition of it. In the same way that breaking a treaty might remove individual rights, not necessarily within the UK, and if it does will require parliamentary approval.
Correct.

In fact no treaty can supersede domestic law or dictate it. In case of the EU treaties, apart from risking a fine or being thrown out of the EU, Parliament is and always has been entirely able to not transpose directives and turn them into domestic law via Acts of Parliament or, indeed, it would have been free to repeal the ECA at any point regardless of implications of the UK being in breach of the treaties.

This is very right that is now in danger by the government trying to dictate what happens to domestic law. It's entirely incompatible with our constitution.
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Old 07-12-2016, 10:39
HR Guru
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That might be because there a restriction on the use of Royal Prerogative in cases where it's use is to avoid pending changes to the law. In that respect the Government has once again shot itself in the foot. I suspect that the reason for the March deadline is to have an official start to Brexit prior to the May 2017 local council elections both for the kudos that might give Conservative candidates and to mitigate the ongoing threat that UKIP candidates might either gain seats or divide the anti-EU vote.
Yes there is that restriction as well which is certainly not helping the government's case.

I just had another chat with one of my legal friends who deals with constitutional law on a daily basis and she is putting the odds of the court ruling that the GRB has to be given royal ascent prior to A 50 being triggered at 70/30. Having read Faisal Islam's summary of the last two days I am tempted to agree... but I will stick with 50/50 for now.
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Old 07-12-2016, 11:01
DinkyDoobie
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If there is no prerogative to frustrate domestic rights how does that marry with article 48 that states the government can amend the treaties.
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