Another new Brexit thread

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Vic said:
It's the decision to withdraw that has to be "in accordance with its own constitutional arrangements." That decision has been made. The ECJ has since ruled that the decision can be revoked as no sovereign nation can be forced to leave the EU against its will. But if the nation in question has no functioning government capable of seeking an extension, or saying we're revoking, you'd effectively be arguing that the lack of capacity to make a decision voids the consequences of the original decision. Even if Parliament has been prevented by an unlawful act from exercising constitutional arrangements to extend or revoke, it's a long leap to the ECJ saying that it will retrospectively intervene to imagine what might have happened (the new Act meant asking for an extension but there was no guarantee the EU would agree).

It would be interesting if the EU says they will institute a standstill arrangement from 1st November (not sure under what provisions) on the grounds that the UK has no functioning constitutional arrangements and declare that (again by what provision?) we are stil a member state. Next question would be whether Farage refuses his MEP salary.
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No it isn't, or at least not necessarily. The text of Art 50(1) in full is this:

"Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."

There is nothing there that limits the requirement that withdrawal should be in accordance with the state's own constitutional requirements to the decision to withdraw alone. The wording of the article is just as consistent with a requirement that the act of withdrawal itself should be in accordance with the state's own constitutional requirements. It would be strange if the ECJ said on the one hand a state cannot be forced against its will from the EU but on the other hand accepted that withdrawal can be validly achieved by way of an unlawful fait accompli by the government of the day.

The position is, as you know, that the law of the UK is that the government is obliged in law to seek an extension to the 31/10 exit date. If the government said 'throw us in jail if you like, we're not doing it' it wouldn't be that surprising (and certainly it would be consistent with the wording of Art 50) if the ECJ said 'the UK has not validly exited the EU because it has not done so in accordance with its own constitutional arrangements' - the most fundamental of which, of course, is that Parliament is sovereign and that the rule of law will be observed by the Government. You are quite right that there is no guarantee the Council of Europe would agree to extend the period even if the government made the request, but we don't get to the point where it gets to make the decision if the request for an extension that is mandatory in UK law isn't ever put before the Council. Before they ever get to think about the question the UK Govt's unlawful actions have taken their ability to extend (or not) the withdrawal period from them. So arguably the fact that the Council of Europe has to agree is irrelevant, because you only get to that point if the UK Government complies with its own law, and in this scenario it hasn't.

What the consequences would be of the ECJ making such a ruling is a separate matter, but if that's what the ECJ decide the treaty means, then that's that. All I'm saying is that it is possible to construe the treaty in that way. If you don't agree with that, it would be interesting to hear why.
 
Chris in London said:
No it isn't, or at least not necessarily. The text of Art 50(1) in full is this:

"Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."

There is nothing there that limits the requirement that withdrawal should be in accordance with the state's own constitutional requirements to the decision to withdraw alone. The wording of the article is just as consistent with a requirement that the act of withdrawal itself should be in accordance with the state's own constitutional requirements. It would be strange if the ECJ said on the one hand a state cannot be forced against its will from the EU but on the other hand accepted that withdrawal can be validly achieved by way of an unlawful fait accompli by the government of the day.

The position is, as you know, that the law of the UK is that the government is obliged in law to seek an extension to the 31/10 exit date. If the government said 'throw us in jail if you like, we're not doing it' it wouldn't be that surprising (and certainly it would be consistent with the wording of Art 50) if the ECJ said 'the UK has not validly exited the EU because it has not done so in accordance with its own constitutional arrangements' - the most fundamental of which, of course, is that Parliament is sovereign and that the rule of law will be observed by the Government. You are quite right that there is no guarantee the Council of Europe would agree to extend the period even if the government made the request, but we don't get to the point where it gets to make the decision if the request for an extension that is mandatory in UK law isn't ever put before the Council. Before they ever get to think about the question the UK Govt's unlawful actions have taken their ability to extend (or not) the withdrawal period from them. So arguably the fact that the Council of Europe has to agree is irrelevant, because you only get to that point if the UK Government complies with its own law, and in this scenario it hasn't.

What the consequences would be of the ECJ making such a ruling is a separate matter, but if that's what the ECJ decide the treaty means, then that's that. All I'm saying is that it is possible to construe the treaty in that way. If you don't agree with that, it would be interesting to hear why.
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Should that scenario occur, it would be jumped on by the ultra Brexiters as proof that the EU are not letting us leave, and would provide a huge boost for Johnson and Farage. The population at large won't read the small print.
 
west didsblue said:
Should that scenario occur, it would be jumped on by the ultra Brexiters as proof that the EU are not letting us leave, and would provide a huge boost for Johnson and Farage. The population at large won't read the small print.
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Everything is viewed through the lens of Brexit, whether it should be or not. Like yesterday: some people were far more outraged by the idea that we've been insulted by Luxombourg than by the repeated suggestions that the prime minister - the man chosen by the Queen to run the government - will not abide by an Act of Parliament to which the Queen has assented. Others saw it as yet more evidence, if any were needed, of a man who avoids scrutiny and challenge on every possible occasion.
 
Rascal said:
I would rather vote for Johnson/Pol Pot/Pinochet/Orban/Bolsanaro before Swinson, the Lib Dems are worse than the Tories.

As there is no Communist Party standing where I live I will lend my vote to Labour.
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What about if it was a best bangers vote - does she get your vote then?
 
Whilst i admire the lib dems for their stance they can't form a government,what happens if they are best placed to form a coalition but it's with a pro brexit party?
 
Chris in London said:
No it isn't, or at least not necessarily. The text of Art 50(1) in full is this:

"Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."

There is nothing there that limits the requirement that withdrawal should be in accordance with the state's own constitutional requirements to the decision to withdraw alone. The wording of the article is just as consistent with a requirement that the act of withdrawal itself should be in accordance with the state's own constitutional requirements. It would be strange if the ECJ said on the one hand a state cannot be forced against its will from the EU but on the other hand accepted that withdrawal can be validly achieved by way of an unlawful fait accompli by the government of the day.

The position is, as you know, that the law of the UK is that the government is obliged in law to seek an extension to the 31/10 exit date. If the government said 'throw us in jail if you like, we're not doing it' it wouldn't be that surprising (and certainly it would be consistent with the wording of Art 50) if the ECJ said 'the UK has not validly exited the EU because it has not done so in accordance with its own constitutional arrangements' - the most fundamental of which, of course, is that Parliament is sovereign and that the rule of law will be observed by the Government. You are quite right that there is no guarantee the Council of Europe would agree to extend the period even if the government made the request, but we don't get to the point where it gets to make the decision if the request for an extension that is mandatory in UK law isn't ever put before the Council. Before they ever get to think about the question the UK Govt's unlawful actions have taken their ability to extend (or not) the withdrawal period from them. So arguably the fact that the Council of Europe has to agree is irrelevant, because you only get to that point if the UK Government complies with its own law, and in this scenario it hasn't.

What the consequences would be of the ECJ making such a ruling is a separate matter, but if that's what the ECJ decide the treaty means, then that's that. All I'm saying is that it is possible to construe the treaty in that way. If you don't agree with that, it would be interesting to hear why.
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I think my interpretation that "in accordance with its own constitutional requirements" refers to the decision to withdraw is supported by the ECJ decision that "The United Kingdom is free to revoke unilaterally thenotification of itsintention to withdraw from the EU. Such a revocation, decided in accordance with its own national constitutional requirements..." https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-12/cp180191en.pdf

Implicitly, any withdrawal agreement must be done under the country's constitution (hence the Supreme Court supporting Miller that notice under Article 50 needed Parliament's authority rather than the PM's whim). Previous extensions have needed an Order in Council to change Exit Day, but under the new Act Parliament can require the PM to seek an extension. So, yes, it can be argued that the PM's unlawful refusal would frustrate the constitutional requirements that might have led to extension (or revocation). I'm just not sure how and when it would get to the ECJ so de facto would usurp any de jure.

I much prefer the scenario where Johnson gives the Supreme Court the undertaking not to prorogue Parliament again, so even if they find the current prorogation was lawful (even if he deceived the Queen) Parliament gets to vote for a second referendum, or simply to Revoke, and the EU says we'll take that as "in accordance with its own national constitutional requirements".
 
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Vic said:
I think my interpretation that "in accordance with its own constitutional requirements" refers to the decision to withdraw is supported by the ECJ decision that "The United Kingdom is free to revoke unilaterally thenotification of itsintention to withdraw from the EU. Such a revocation, decided in accordance with its own national constitutional requirements..." https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-12/cp180191en.pdf

Implicitly, any withdrawal agreement must be done under the country's constiution (hence the Supreme Court supporting Miller that notice under Article 50 needed Parliament's authority rather than the PM's whim). Previous extensions have needed an Order in Council to change Exit Day, but under the new Act Parliament can require the PM to seek an extension. So, yes, it can be argued that the PM's unlawful refusal would frustrate the constitutional requirements that might have led to extension (or revocation). I'm just not sure how and when it would get to the ECJ so de facto would usurp any de jure.

I much prefer the scenario where Johnson gives the Supreme Court the undertaking not to prorogue Parliament again, so even if they find the current prorogation was lawful (even if he deceived the Queen) Parliament gets to vote for a second referendum, or simply to Revoke, and the EU says we'll take that as "in accordance with its own national constitutional requirements".
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I think the reason the Act requires the letter to be sent by mid October is to allow enforcement actions to be taken, including the court nominating some other person to sign in his stead before exit day if he is contempt. So it’s almost certainly an entirely moot point, but it’s interesting to consider that the contemplated act of martyrdom wouldn’t necessarily have any effect in any event.
 
kevin horlocks wand said:
Well it’s pretty clear it says leave with a deal or no deal. This is not Mrs miggins from St. Helens these are MPs

They would have been welcome to have sought to change it before they voted not argue now. But Back then they were still in the we will honour the referendum result stage.....

It then morphed to the we will honour the referendum result but not on the basis of Theresa mays deal

It then moved to we will honour the referendum result but not with no deal.

Now it’s moved to we don’t honour the referendum result and will do anything to stop it.
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Agreed but no imagined there wouldn’t be a deal. We were still in the days of the ‘easiest deal in history’, everyone was brimming with confidence, David Davis was cock of the walk, Theresa May was the new Iron Lady, the EU was cowering at our feet, yada, yada.

No one had a clue what it was like to negotiate with the EU as a non EU country which to them we now were. The E27 were a chaotic, disorganised rabble and would crumble on first contact with our crack negotiating team. We didn’t even bring any papers. They came with folders full of stuff like, rules, regs and laws. The Telegraph mocked them for doing so.

Ah what we wouldn’t give to have those carefree days back.
 
BobKowalski said:
Agreed but no imagined there wouldn’t be a deal. We were still in the days of the ‘easiest deal in history’, everyone was brimming with confidence, David Davis was cock of the walk, Theresa May was the new Iron Lady, the EU was cowering at our feet, yada, yada.

No one had a clue what it was like to negotiate with the EU as a non EU country which to them we now were. The E27 were a chaotic, disorganised rabble and would crumble on first contact with our crack negotiating team. We didn’t even bring any papers. They came with folders full of stuff like, rules, regs and laws. The Telegraph mocked them for doing so.

Ah what we wouldn’t give to have those carefree days back.
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I know what a mess.
 
BobKowalski said:
Agreed but no imagined there wouldn’t be a deal. We were still in the days of the ‘easiest deal in history’, everyone was brimming with confidence, David Davis was cock of the walk, Theresa May was the new Iron Lady, the EU was cowering at our feet, yada, yada.

No one had a clue what it was like to negotiate with the EU as a non EU country which to them we now were. The E27 were a chaotic, disorganised rabble and would crumble on first contact with our crack negotiating team. We didn’t even bring any papers. They came with folders full of stuff like, rules, regs and laws. The Telegraph mocked them for doing so.

Ah what we wouldn’t give to have those carefree days back.
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I blame the German car makers and french cheese producers for not doing their bit
 
Chris in London said:
I think the reason the Act requires the letter to be sent by mid October is to allow enforcement actions to be taken, including the court nominating some other person to sign in his stead before exit day if he is contempt. So it’s almost certainly an entirely moot point, but it’s interesting to consider that the contemplated act of martyrdom wouldn’t necessarily have any effect in any event.
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So long as he ends up in jail ... even better if it's to no effect!
 
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