The Lemon Fool

Spet0789 wrote: The key point is that they can be amended by any subsequent Parliament without any special procedure (beyond, one hopes, an elevated level of scrutiny).

This is what you said after your first edit, but before your second.

The Act can be amended, but the Declaration cannot. I have not looked at the arguments about the process for amending the Act (when it was first amended which I think was in the late 1800s), but the Act of Rights is clearly different because of the link to the Declaration.

I have seen documents relating to a court decision as to what are and what are not constitional laws, but it is true to say that constitutional laws have no real constitutional protection although were there to be an amendment to the Act of Rights which conflicted with the declaration it would raise an interesting legal question.

Lootman wrote:Well to me, whatever a Constitution is, it is not something that can just be thrown away by a new government.

Although I would agree that changes to the constitution above a threshold should require popular consent in some form (referendum probably) a constitution is simply the rules and procedures that apply. This includes, for example, the Standing Orders of the House of Commons which are subject simply to a majority resolution of the House.

The theory is that House Business should not have a whip, but it is not always as easy as that.

johnhemming wrote:

Spet0789 wrote: The key point is that they can be amended by any subsequent Parliament without any special procedure (beyond, one hopes, an elevated level of scrutiny).

This is what you said after your first edit, but before your second.

The Act can be amended, but the Declaration cannot. I have not looked at the arguments about the process for amending the Act (when it was first amended which I think was in the late 1800s), but the Act of Rights is clearly different because of the link to the Declaration.

I have seen documents relating to a court decision as to what are and what are not constitional laws, but it is true to say that constitutional laws have no real constitutional protection although were there to be an amendment to the Act of Rights which conflicted with the declaration it would raise an interesting legal question.

I agree, it would be an interesting question. I suppose the operative legal point is whether the constitutional authority stems from the Declaration of Rights or from the Act of Parliament which enacted it. Given that there have been subsequent amendments, I would argue the latter (obviously).

All a bit off topic... we wait for Salvor Hardin to explain his ingenious theory that for the 5ish decades we thought we were members of the EU... we really weren't!

Spet0789 wrote:The facts are that now we have left the EU any government with a working majority in both houses can do exactly those things, in theory at least.

Leaving the EU has not changed this. There are international treaties that the UK has subscribed to which have resolution proceedings. The EU was only one of those. However, in the end that is international law which is not enforceable in the UK without a UK court order of some form.

johnhemming wrote:

Lootman wrote:Well to me, whatever a Constitution is, it is not something that can just be thrown away by a new government.

Although I would agree that changes to the constitution above a threshold should require popular consent in some form (referendum probably) a constitution is simply the rules and procedures that apply. This includes, for example, the Standing Orders of the House of Commons which are subject simply to a majority resolution of the House.

The theory is that House Business should not have a whip, but it is not always as easy as that.

I defer to your greater experience with procedural matters within government.

But from my point a view, a Constitution or Bill of Rights is worthless unless it limits and restricts what any given government can change. Without that there can be no faith that there is any kind of consistency and continuity of government over the centuries. Except for the monarchy and who would want to rely on their divine right?

It is no coincidence that the ten clauses in the US Bill of Rights start with the phrase: "Congress shall pass no law that . . . "

Spet0789 wrote:I suppose the operative legal point is whether the constitutional authority stems from the Declaration of Rights or from the Act of Parliament which enacted it. Given that there have been subsequent amendments, I would argue the latter (obviously).

I would disagree because of the role of the Convention in all of this. I would agree that the fundamental constitutional law is the Bill/Act of Rights 1688.

johnhemming wrote:

Spet0789 wrote:The facts are that now we have left the EU any government with a working majority in both houses can do exactly those things, in theory at least.

Leaving the EU has not changed this. There are international treaties that the UK has subscribed to which have resolution proceedings. The EU was only one of those. However, in the end that is international law which is not enforceable in the UK without a UK court order of some form.

I think you're right in theory, wrong in practice. Rulings from the ECJ were pretty enforceable when we were in the EU.

Lootman wrote:I defer to your greater experience with procedural matters within government.

Thank you for that, but my experience is mainly about procedural matters in the House of Commons.

Spet0789 wrote:I think you're right in theory, wrong in practice. Rulings from the ECJ were pretty enforceable when we were in the EU.

I am not aware of any contempt proceedings relating to the failure to follow an ECJ judgment.

johnhemming wrote:

Spet0789 wrote:I think you're right in theory, wrong in practice. Rulings from the ECJ were pretty enforceable when we were in the EU.

I am not aware of any contempt proceedings relating to the failure to follow an ECJ judgment.

I'm not a lawyer, but I think the mechanism would be that the UK courts would set aside any UK legislation which was in contravention of EU law. So there's no need for the ECJ to intervene directly.

Spet0789 wrote:I'm not a lawyer, but I think the mechanism would be that the UK courts would set aside any UK legislation which was in contravention of EU law. So there's no need for the ECJ to intervene directly.

The UK courts take into account the statutes as required by the UK parliament. It is UK court orders that are enforcible. Parliament at times asks the courts to consider international treaties (such as the hague conventions and the various EU rules), but it remains it is a UK court decision that is made. At times the courts will look at precedent from other common law jurisdictions.

johnhemming wrote:Some Acts of Parliament are deemed by the courts to be constitutional laws. The Bill of Rights is one of these. So is Magna Carta (1297). For many of years the Bill of Rights was considered to be unamendable, but has since been amended.

The argument is that the doctrine of implied repeal, namely that when two laws conflict then the newest law takes precedence, does not apply to constitutional statutes.

Constitutional statutes are of such fundamental importance in common law systems that they have to be explicitly repealed. This is done by passing a law which states that the constitutional statute (or part of it) is repealed.

This is what was done with the various parts of the Magna Carta (I believe only three of the 63 clauses of Magna Carta are still in force; the others have been explicitly repealed)

There have been many judgments over the years which have reinforced the principle of Constitutional Statutes (e.g. The Metric Martyrs case). The Bill of Rights 1689 is one such statute. Others include Act of Union 1707 and The Laws of Wales Acts of 1535 and 1542.

There is a section of The Bill of Rights 1689 starting "No foreign prince..." which forbids any foreign body from having jurisdiction over England. This was breached when we joined the EU in 1993 as it was still in force having never been explicitly repealed.

SalvorHardin wrote:

johnhemming wrote:Some Acts of Parliament are deemed by the courts to be constitutional laws. The Bill of Rights is one of these. So is Magna Carta (1297). For many of years the Bill of Rights was considered to be unamendable, but has since been amended.

The argument is that the doctrine of implied repeal, namely that when two laws conflict then the newest law takes precedence, does not apply to constitutional statutes.

Constitutional statutes are of such fundamental importance in common law systems that they have to be explicitly repealed. This is done by passing a law which states that the constitutional statute (or part of it) is repealed.

This is what was done with the various parts of the Magna Carta (I believe only three of the 63 clauses of Magna Carta are still in force; the others have been explicitly repealed)

There have been many judgments over the years which have reinforced the principle of Constitutional Statutes (e.g. The Metric Martyrs case). The Bill of Rights 1689 is one such statute. Others include Act of Union 1707 and The Laws of Wales Acts of 1535 and 1542.

There is a section of The Bill of Rights 1689 starting "No foreign prince..." which forbids any foreign body from having jurisdiction over England. This was breached when we joined the EU in 1993 as it was still in force having never been explicitly repealed.

Thanks for the explanation. As I mentioned, I am not a lawyer but many ardent Brexiteers are. If that is arguable, why was it never litigated?

It was litigated and was rubbish because of the various constitutional laws in place. The EU treaties are no different to other international treaties.

Spet0789 wrote:Thanks for the explanation. As I mentioned, I am not a lawyer but many ardent Brexiteers are. If that is arguable, why was it never litigated?

I'd guess that those with the inclination and resources to pursue a case chose not to. The establishment would have closed ranks because the consequences of EU membership being ruled to be unlawful were to horrible to contemplate.

On "public policy grounds" there would probably have been a contorted judgment which provided tenuous reasons why EU membership. Probably something like "conflict between two constitutional statutes allows the doctrine of implied repeal to apply" (that's what I'd argue if I was pro-EU, with my fingers crossed!)

The courts have done this a few times over the years. In this case the damages claims for 27 years of the illegal application of EU law would create a tsunami of cases costing the British state a colossal amount.

Magna carta 1297
https://www.legislation.gov.uk/aep/Edw1 ... 9/contents
Bill of rights 1688
https://www.legislation.gov.uk/aep/Will ... troduction

SalvorHardin wrote:

Spet0789 wrote:Thanks for the explanation. As I mentioned, I am not a lawyer but many ardent Brexiteers are. If that is arguable, why was it never litigated?

I'd guess that those with the inclination and resources to pursue a case chose not to. The establishment would have closed ranks because the consequences of EU membership being ruled to be unlawful were to horrible to contemplate.

On "public policy grounds" there would probably have been a contorted judgment which provided tenuous reasons why EU membership. Probably something like "conflict between two constitutional statutes allows the doctrine of implied repeal to apply" (that's what I'd argue if I was pro-EU, with my fingers crossed!)

The courts have done this a few times over the years. In this case the damages claims for 27 years of the illegal application of EU law would create a tsunami of cases costing the British state a colossal amount.

Sounds a bit too much like a conspiracy theory to me. Applying Occam’s Razor leads me to think that the reason it’s never been litigated is that it’s not a sound argument.

SalvorHardin wrote:There is a section of The Bill of Rights 1689 starting "No foreign prince..." which forbids any foreign body from having jurisdiction over England. This was breached when we joined the EU in 1993 as it was still in force having never been explicitly repealed.

Yes, that would be immediately after the section appointing the forreign Princesse Anne of Denmarke as heir to the throne should the forreign Prince of Orange and his Princess be in default of issue.

So is SalvorHardin a Jacobite sympathiser, or does he support regular foreign interference in British affairs so long as it is carried on by the monarch and his/her foreign spouses and cronies, rather than as legislated in Parliament?


GS

Spet0789 wrote:Sounds a bit too much like a conspiracy theory to me. Applying Occam’s Razor leads me to think that the reason it’s never been litigated is that it’s not a sound argument.

When I studied trust law there was one particular situation where there were two conflicting precedents. People had been using one of the two precedents since the 1920s and it was generally taken that if a case was ever taken to court then this precedent would prevail.

But no-one had risked it by taking a case to court.

As to the Bill of Rights argument, and how it would probably be dealt with by a court, this came up when I suggested it to a Professor of European Law during a lecture on the application of EU directives to English law. Mine was the EU membership was illegal, the Prof's was public policy and how the courts have a habit of "creative judgments" when something was so contentious is involved (especially due to the cost of processing such a change - there's a bit of Coase's "least cost avoider" at work in this sort of judgment).

America's Roe v Wade is a brilliant example of legislating from the bench on public policy grounds

zico wrote:In a larger sense, the question seems to be "in a crisis, what should the government do, and who should pay for it?"

Nobody pays for it. It pays for itself. Money is made round to go around.

"Government Debt" is actually a "Private Asset called a Gilt mostly in a pension fund somewhere". When that Gilt is spent (if it ever is), the transaction sequence it initiates pays off the Gilt.

https://new-wayland.com/blog/#Bonds%20Pay%20For%20Themselves

Interest on Gilts is essentially what the rest of us call "private pensions in payment" - alongside those compulsory pension contributions you are now paying or "privatised taxation" as it should be known.

The whole GDP ratio nonsense is essentially confusing a stock with a flow. When you see anybody in the media mentioning it you can mark them down as clueless. They just don't understand the accounting - for every debt there is an asset.

What seems to be happening at the moment is people are deleveraging and paying back loans in large amounts - which then reveals the huge amount of savings there is, and that naturally shows up as "government debt" because it can't go anywhere else. At least not without confiscating the savings.

The left want to confiscate savings with taxation. The right want to hide them by pushing offsetting private loans onto all and sundry. Both are stupid ideas.

NeilW