This is a mini-series of three. Part two went up yesterday, Parts one and three, which are repostings, will go up today.
There are two documents attached to this:
There are sundry other issues attached, from the ECHR to the EU itself to various other statutes which are mentioned within the body of the posts.
“And when the judges recognise that the political facts have changed, the meaning of sovereignty changes accordingly.”
Much of the argument over sovereignty is bunkum. First, Graham Wood’s notion of Brexit:
Nonsense Cameron. Art 50 would be the status quo, continuing payment to the Evil Empire of membership fee, subject to continuing EU directives and ECJ judgements. And all possibly for two years. No thanks!
Oh, and all amidst the usual ‘horse trading’ and ‘you scratch my back…… and at the end a bowl of fudge.
Far better to invoke the Vienna Convention on Treaties in which we have a very strong case to formally terminate all EU treaties (Article 62), the criteria being a “fundamental change in circumstances” Couldn’t be clearer.
There are also VCT clauses in relation to fraud (by the EU on our accession, and also the case of Greece entry into Eurozone and bail outs) – all contrary to the EU’s own treaties.
And the Boiling Frog’s response:
‘Lex specialis derogat legi generali’ plus ‘Article 50 is the only legal route out.’
‘Lex posterior derogat priori;’
… not to contradict or be combative but to point out that there are two opposite points of view, even within the laws governing a specific situation.
It’s called legal opinion, just as you can have two doctors’ opinions. And just as you can have two doctors’ opinions, so you can have two blocs of scientists with diametrically opposed views of MMGW. And two lots or more of lawyers, all steeped in international law.
The point is that when someone comes in dogmatically and says this is the only way – sorry, there is legal opinion to contradict that. Not that he’s wrong, just that there is counter-opinion which equally stands up.
This principle of non-dogmatism is vital when it comes to sovereignty because if there is opposed august opinion on it, then anything can actually be argued by a nation, as distinct from a private citizen.
I’ll reprint much of this post:
Is there not something curious about the construction of Lord Steyn’s argument? He cites three respects in which, in his view, the sovereignty of Parliament is now limited. These are: the United Kingdom’s membership of the European Union, the devolution “settlement” of 1998, and the incorporation by the Human Rights Act of fundamental rights into domestic law. Each of these, it is to be observed, came about as a result of legislation.
Yet from this starting point his Lordship goes on to state that the sovereignty of Parliament is a “construct of the common law”, “created” by judges and alterable by them. Even if this is correct (and I submit below that it is incorrect) the conclusion does not follow from the evidence his Lordship cites. The changes he outlines were made through legislation by Parliament; not through common law adjudication by judges.
30. Lord Bingham, in his 2007 Commemoration Lecture delivered at King’s College London, to my mind correctly stated that it has been ‘convincingly shown that the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it.’
32. The doctrine of the sovereignty of Parliament is better understood as having its legal source in judicial recognition of political fact than in the common law.
33. European Union law is far from being the only contemporary challenge to the doctrine of parliamentary sovereignty.
One commenter at Breitbart said that this Freeman of the Realm stuff doesn’t cut it any more, quoting Magna Carta and all that.
In one sense true and to back that up, another commenter wrote, on Magna Carta:
Question 1: What has Magna Carta done for me?
Quite simple – it’s because of Magna Carta that we live in a free country today. Magna Carta affirmed the vital principle of freedom under the law. Clause 39 of the Charter said: ‘no free man shall be imprisoned or deprived of his lands except by judgement of his peers or by the law of the land’. Clause 40 said:
‘To no one shall we sell, delay or deny right or justice’. Before the making of Magna Carta the king had been able to do pretty well whatever he liked – and did. After the making of the Charter he was subject to the law like everyone else.
In the mid thirteenth century, the lawyer Henry Bracton was to write, ‘in England the king is below God and below the law’.
Question 2: How much of Magna Carta is still in the statute book?
Very little, in fact. To be precise, just four clauses of the original 1215 version of the Charter.
These are: clause 1, guaranteeing the liberties of the Church; clause 13, guaranteeing the liberties of the City of London; and the famous clauses 39 and 40, guaranteeing due legal process.
These represent clauses 1, 9 and 29 of the definitive reissue of the Charter in a slimmed down version by King Henry III in 1225.
All the rest of the Charter has been repealed in stages over the centuries, most especially in the nineteenth century, a period which saw the repeal of a great deal of obsolete medieval legislation.
Does that mean that the Charter no longer matters? Most definitely not. All great documents are the product of specific historical circumstances and lose their immediate relevance over time.
But that does not mean that they can be forgotten or consigned to the historical waste paper bin. Magna Carta, although overtaken by events even in the medieval period, acquired huge symbolic significance, and it is its symbolic power as a touchstone of liberty which has guaranteed its continuing fame and importance over the centuries.
But it’s clear to me that the commenter had not read that document:
… because contained in there is the legal opinion that in fact, the “Freeman stuff” is not an historical curiosity in the least – it is a legal argument for today. From the parliamentary paper:
Although Factortame … undoubtedly demonstrate[s] what may be described as a devolution of legislative power to Europe, it is no true devolution of sovereignty. In legal (though certainly not political) terms, the organs of European legislation may in truth be described, for so long as the Act of 1972 remains on the statute book, as Parliament’s delegates; the law of Europe is not a higher-order law, because the limits which for the time being it sets to the power of Parliament are at the grace of Parliament itself.
16. Professor Allan’s challenge to Wade is slightly different. He attacks the jurisprudential basis of Wade’s account of sovereignty. For Wade, the sovereignty of Parliament is ultimately a judicially recognised “political fact”.
And when the judges recognise that the political facts have changed, the meaning of sovereignty changes accordingly. So, for Wade, what the House of Lords recognised in Factortame (No 2) was that the political fact of sovereignty had changed – Parliament since 1972 legislates not in the splendid isolation of a supreme being but in a geo-political environment in which the United Kingdom is a loyal member of the European Union.
Allan disputes this analysis on the basis that sovereignty should be seen, not as judicial recognition of political fact, but as a rule of the common law based on reason just like any other rule of the common law.
Bottom line, Laze and Gem, is that there is sound legal opinion saying we are bound by the EU, sound opinion that we are in no way bound, however, we voluntarily entered various agreements involving the handing over of cash at a time up to the Brexit vote.
And at the moment of the vote being declared and Cameron standing down, it was held by all parties, including other nations, except some Remainers, that Brexit means Brexit.
The new PM has reaffirmed that. So, this guff about two years is a gentlemanly British way of going out politely, though it’s quite unnecessary. We can declare our exit today, were there the political will.
The political will
A country’s law binds a citizen. A nation is not bound in this way, except voluntarily. A treaty is just that – an agreement is acceptance of some of the supra-body’s rules, in order to enjoy benefits accruing from that.
We never were bound by the EU, we could have left at any time without the referendum but there are things like credit ratings and that’s a different matter.
Plus the will of the country is a useful string to the bow. This was the whole intention – to kill off once and for all this notion of Brexit. And it backfired.
So, it’s very much a case now of the PM giving notice – a year is a reasonable time and within that year, she and we go. Simple. Meanwhile, she has the legal opinion at the ready, such as I quoted above, to support it.
And naturally, the EU would put up the counter opinion, citing the ECHR and various other issues. But it would matter not a jot what they said, as the British parliament has reasserted itself as being bound only by British statutes. The agreement with the EU has ceased.
And when the judges recognise that the political facts have changed, the meaning of sovereignty changes accordingly.
A certain amount of my position on this is down to my Russian experience, particularly with that trade minister and there I found that so much of it is bollox. Everything’s put in ship-shape form, on beautifully crafted Dokumentii but it only means as much as the two parties find mutually beneficial.
And the other part of my position is that we are not Russian and we can’t go completely cavalier like a Yeltsin. However, we do NOT have to scurry around, tail between legs before the supra-body, as they know fullwell the game is up. Now it’s just down to the details.
The real issue
The only real issue now is our agreements with non-EU banks, the money-lenders. If we do not wish to be seen as a place to avoid, as Russia was at one stage around ’98 while I was there, then we must honour agreements with those people, as we’ll need them again. We may even need Euro banks too but that is fraught at this time.
The EU itself we no longer need, except insofar as they try to block trade between our firms and those of European nations. That again comes down to how far they feel bound. and we, Britain, have now set the precedent. The law itself has now altered.
The Boiling Frog noted that we’re having the debate after the referendum that we should have had before.
Maybe but now we’re beyond even that debate. I like the Harrogate Agenda and much of Flexcit was good, although now it’s been superseded and clause 3 is not relevant any more – a single market. We do not immediately need that, the various firms are already making overtures to trade. Meanwhile, we get trade going with the countries lined up.
John Redwood and others asked why the MSM is not revealing this is so.
The only reason we’ve not started
The only reason we’ve not started the process is that there are key people with personal reasons to be in the supra-state. That’s it. Heads of companies dependent on the EU cash flow for themselves, politicians in the trough. And they can’t just be pooh-poohed out of the room – they do have a point and some money does come into the UK via them.
So there needs to be an adjustment time for them as well as getting the lex specialis for the newly returned nation written up and as lex specialis, pertaining to sovereignty of a nation, it overrides all other general laws and statutes.
A year’s a good time, as mentioned earlier.
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