Lady Hale talked about Article 50, she must be biased. Burn her.
It's unusual to the point being unheard-of that a judge should make any comment at all about a case he or she will be hearing. The issue isn't what she said, it's the fact that she said anything at all.
I presume that if either party thinks Lady Hale is compromised they can apply to the Supreme Court for an order that she be recused? That would settle the question wouldn't it?
Why is she incapable of seeing that herself? Ah, now wait we have had 3 judges heading up the child abuse enquiry and 2 not realising that they were not independent enough.
If she remains she runs the risk of compromising the decision of a hugely controversial subject with possible serious constitutional implications. In everyone's interests including her own she would be best advised to stand down
The central passage of Lady Hale's speech reads as follows:
"The issue is whether giving that notification falls within the prerogative powers of the Crown in the conduct of foreign relations or whether it falls foul of the rule that the prerogative cannot be used in such a way as to frustrate or substantially undermine an Act of the United Kingdom Parliament. The argument is that the European Communities Act 1972 grants rights to individuals and others which will automatically be lost if the Treaties cease to apply. Such a result, it is said, can only be achieved by an Act of Parliament. Another question is whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement for the 1972 Act.
The contrary argument is that the conduct of foreign affairs, including the making and unmaking of treaties with foreign powers, lies within the prerogative powers of the Crown (what you would call the executive power of the Federation [The speech was made to Malaysian students]). The EU Referendum Act 2015 neither expressly nor by implication required that further Parliamentary authority be given to begin the process of withdrawal. The basis on which the referendum was undertaken was that the Government would give effect to the result. Beginning the process would not change the law.
Just before I left to come here, a unanimous Divisional Court held that the Secretary of State does not have power under the royal prerogative to give notice to withdraw from the European Union. 34 The court held that just as making a treaty does not change the law of the land, unmaking it cannot do so, but triggering article 50 will automatically have that effect. What has to be done instead is perhaps not so clear. But the case is destined for our Court, so I must say no more.
The case raises difficult and delicate issues about the constitutional relationship between Government and Parliament. What is meant by the exercise of the executive power of the State? To what extent can it be exercised in a way which may undermine the exercise of the legislative power of the State? We do not have a written Constitution to tell us the answer. But I doubt whether many written Constitutions would tell us the answer either."
I am at a loss to understand how anyone could read this as expressing a view either way.
Please, don't fall for the media hype, look at her quotes in their entirety, she explained how both sides would approach it.
Yes, but she shouldn't have done that. It suggests that she will approach the case with preconceptions abut what the arguments are or ought to be, rather than listening with a fresh mind to the actual arguments presented to her in court. To avoid any possible taint that she might have pre-judged the case, she should recuse herself from the case.
I agree,
Just before I left to come here, a unanimous Divisional Court held that the Secretary of State does not have power under the royal prerogative to give notice to withdraw from the European Union.
The court held that just as making a treaty does not change the law of the land, unmaking it cannot do so, but triggering article 50 will automatically have that effect. What has to be done instead is perhaps not so clear. But the case is destined for our Court, so I must say no more.
But then she did say more.
Surely she's said enough by now, that she really needs to recuse herself from the A50 appeal?
Nope, she's looking at it from both points of view.
She's waiting to be persuaded by a good argument from either side.
She is compromised and should stand down
Have you read her speech in full?
Yes and it seems astonishing that any judge should make such comments in public before hearing the case
One rule for Judges, another rule for councillors asked to decide on planning matters....
Or Jurors.
True. Strange how the "elite" set these matters out?
Lady Hale talked about Article 50, she must be biased. Burn her.
It's unusual to the point being unheard-of that a judge should make any comment at all about a case he or she will be hearing. The issue isn't what she said, it's the fact that she said anything at all.
I presume that if either party thinks Lady Hale is compromised they can apply to the Supreme Court for an order that she be recused? That would settle the question wouldn't it?
Why is she incapable of seeing that herself? Ah, now wait we have had 3 judges heading up the child abuse enquiry and 2 not realising that they were not independent enough.
If she remains she runs the risk of compromising the decision of a hugely controversial subject with possible serious constitutional implications. In everyone's interests including her own she would be best advised to stand down
Why? It would be outrageous for a judge to be hounded from hearing a case because right wing commentators have wilfully misconstrued her words.
Anyone got any news on Farage's 100,000 march on the Supreme Court? All seems to have gone a bit quiet on that front since Nige decided he was the gatekeeper of Trump's bottom. Also can't find any details of the £100k (they do like their nice, round figures) crowdfunder that's supposed to pay for it all. Banks putting his sweaty, little hand in his pocket again?
The central passage of Lady Hale's speech reads as follows:
"The issue is whether giving that notification falls within the prerogative powers of the Crown in the conduct of foreign relations or whether it falls foul of the rule that the prerogative cannot be used in such a way as to frustrate or substantially undermine an Act of the United Kingdom Parliament. The argument is that the European Communities Act 1972 grants rights to individuals and others which will automatically be lost if the Treaties cease to apply. Such a result, it is said, can only be achieved by an Act of Parliament. Another question is whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement for the 1972 Act.
The contrary argument is that the conduct of foreign affairs, including the making and unmaking of treaties with foreign powers, lies within the prerogative powers of the Crown (what you would call the executive power of the Federation [The speech was made to Malaysian students]). The EU Referendum Act 2015 neither expressly nor by implication required that further Parliamentary authority be given to begin the process of withdrawal. The basis on which the referendum was undertaken was that the Government would give effect to the result. Beginning the process would not change the law.
Just before I left to come here, a unanimous Divisional Court held that the Secretary of State does not have power under the royal prerogative to give notice to withdraw from the European Union. 34 The court held that just as making a treaty does not change the law of the land, unmaking it cannot do so, but triggering article 50 will automatically have that effect. What has to be done instead is perhaps not so clear. But the case is destined for our Court, so I must say no more.
The case raises difficult and delicate issues about the constitutional relationship between Government and Parliament. What is meant by the exercise of the executive power of the State? To what extent can it be exercised in a way which may undermine the exercise of the legislative power of the State? We do not have a written Constitution to tell us the answer. But I doubt whether many written Constitutions would tell us the answer either."
I am at a loss to understand how anyone could read this as expressing a view either way.
It's clear what is happening. Right wing, hard-Brexiteers are concerned the case may not go their way and are looking to establish a narrative of Euro-fanatic skulduggery in advance. They cannot and will not accept the notion of an independent judiciary.
In the UK system, it can be the case that the winning party in a GE has less votes than the losing party, but then Parliament is nonetheless fairly evenly split in seats between the winning and losing parties. Although not exactly representative, both sides still have a strong presence in Parliament.
The US President is a Winner-Takes-All election.
I accept that Trump won the election according to the rules, but it is highly disturbing that he lost the popular vote by so much.
I'd conclude -- along with Southam -- that the current system is untenable.
On the other hand, the presidency is only 'part' of government, there's checks and balances from both the Senate and Congress.
Congress includes the Senate. There are also checks and balances from the Court and the states.
The central passage of Lady Hale's speech reads as follows:
"The issue is whether giving that notification falls within the prerogative powers of the Crown in the conduct of foreign relations or whether it falls foul of the rule that the prerogative cannot be used in such a way as to frustrate or substantially undermine an Act of the United Kingdom Parliament. The argument is that the European Communities Act 1972 grants rights to individuals and others which will automatically be lost if the Treaties cease to apply. Such a result, it is said, can only be achieved by an Act of Parliament. Another question is whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement for the 1972 Act.
The contrary argument is that the conduct of foreign affairs, including the making and unmaking of treaties with foreign powers, lies within the prerogative powers of the Crown (what you would call the executive power of the Federation [The speech was made to Malaysian students]). The EU Referendum Act 2015 neither expressly nor by implication required that further Parliamentary authority be given to begin the process of withdrawal. The basis on which the referendum was undertaken was that the Government would give effect to the result. Beginning the process would not change the law.
Just before I left to come here, a unanimous Divisional Court held that the Secretary of State does not have power under the royal prerogative to give notice to withdraw from the European Union. 34 The court held that just as making a treaty does not change the law of the land, unmaking it cannot do so, but triggering article 50 will automatically have that effect. What has to be done instead is perhaps not so clear. But the case is destined for our Court, so I must say no more.
The case raises difficult and delicate issues about the constitutional relationship between Government and Parliament. What is meant by the exercise of the executive power of the State? To what extent can it be exercised in a way which may undermine the exercise of the legislative power of the State? We do not have a written Constitution to tell us the answer. But I doubt whether many written Constitutions would tell us the answer either."
I am at a loss to understand how anyone could read this as expressing a view either way.
Discussing this case in public is unacceptable to many and these comments should have been part of the judgement not some lecture beforehand
The founding fathers designed the system to stop the more populous states railroading the smaller states.
Trump winning the electoral college but losing the popular vote was what they designed the system to deal with.
If you're complaining about that, then surely you'll have to complain about every state getting two senators.
I mean everyone accepts that little old Wyoming gets the same number of senators as California, despite California's population being 66 times the size of Wyoming
Of course "less populous" was code for slave owning states.
The central passage of Lady Hale's speech reads as follows:
"The issue is whether giving that notification falls within the prerogative powers of the Crown in the conduct of foreign relations or whether it falls foul of the rule that the prerogative cannot be used in such a way as to frustrate or substantially undermine an Act of the United Kingdom Parliament. The argument is that the European Communities Act 1972 grants rights to individuals and others which will automatically be lost if the Treaties cease to apply. Such a result, it is said, can only be achieved by an Act of Parliament. Another question is whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement for the 1972 Act.
The contrary argument is that the conduct of foreign affairs, including the making and unmaking of treaties with foreign powers, lies within the prerogative powers of the Crown (what you would call the executive power of the Federation [The speech was made to Malaysian students]). The EU Referendum Act 2015 neither expressly nor by implication required that further Parliamentary authority be given to begin the process of withdrawal. The basis on which the referendum was undertaken was that the Government would give effect to the result. Beginning the process would not change the law.
Just before I left to come here, a unanimous Divisional Court held that the Secretary of State does not have power under the royal prerogative to give notice to withdraw from the European Union. 34 The court held that just as making a treaty does not change the law of the land, unmaking it cannot do so, but triggering article 50 will automatically have that effect. What has to be done instead is perhaps not so clear. But the case is destined for our Court, so I must say no more.
The case raises difficult and delicate issues about the constitutional relationship between Government and Parliament. What is meant by the exercise of the executive power of the State? To what extent can it be exercised in a way which may undermine the exercise of the legislative power of the State? We do not have a written Constitution to tell us the answer. But I doubt whether many written Constitutions would tell us the answer either."
I am at a loss to understand how anyone could read this as expressing a view either way.
Apparently it's the whole speech that's wrong, nothing specific.
The central passage of Lady Hale's speech reads as follows:
"The issue is whether giving that notification falls within the prerogative powers of the Crown in the conduct of foreign relations or whether it falls foul of the rule that the prerogative cannot be used in such a way as to frustrate or substantially undermine an Act of the United Kingdom Parliament. The argument is that the European Communities Act 1972 grants rights to individuals and others which will automatically be lost if the Treaties cease to apply. Such a result, it is said, can only be achieved by an Act of Parliament. Another question is whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement for the 1972 Act.
The contrary argument is that the conduct of foreign affairs, including the making and unmaking of treaties with foreign powers, lies within the prerogative powers of the Crown (what you would call the executive power of the Federation [The speech was made to Malaysian students]). The EU Referendum Act 2015 neither expressly nor by implication required that further Parliamentary authority be given to begin the process of withdrawal. The basis on which the referendum was undertaken was that the Government would give effect to the result. Beginning the process would not change the law.
Just before I left to come here, a unanimous Divisional Court held that the Secretary of State does not have power under the royal prerogative to give notice to withdraw from the European Union. 34 The court held that just as making a treaty does not change the law of the land, unmaking it cannot do so, but triggering article 50 will automatically have that effect. What has to be done instead is perhaps not so clear. But the case is destined for our Court, so I must say no more.
The case raises difficult and delicate issues about the constitutional relationship between Government and Parliament. What is meant by the exercise of the executive power of the State? To what extent can it be exercised in a way which may undermine the exercise of the legislative power of the State? We do not have a written Constitution to tell us the answer. But I doubt whether many written Constitutions would tell us the answer either."
I am at a loss to understand how anyone could read this as expressing a view either way.
Discussing this case in public is unacceptable to many and these comments should have been part of the judgement not some lecture beforehand
Judges are not there to do what is acceptable to you.
'I hadn't expected to see my comments about the febrile atmosphere confirmed so quickly. Some of our regular posters have gone full-on fruitloop on the subject. ''
Hang on a minute. We were assured by remainers that Britain WAS independent and sovereign. That we merely needed to put the red article 50 button and, hey presto, we would be catapulted free of the EU in a trice.
Now it appears that assertion was a rank lie.
A certain amount of consternation is warranted, on that basis,
Parliamentary Sovereignty is a tough concept to grasp it seems.
The central passage of Lady Hale's speech reads as follows:
"The issue is whether giving that notification falls within the prerogative powers of the Crown in the conduct of foreign relations or whether it falls foul of the rule that the prerogative cannot be used in such a way as to frustrate or substantially undermine an Act of the United Kingdom Parliament. The argument is that the European Communities Act 1972 grants rights to individuals and others which will automatically be lost if the Treaties cease to apply. Such a result, it is said, can only be achieved by an Act of Parliament. Another question is whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement for the 1972 Act.
The contrary argument is that the conduct of foreign affairs, including the making and unmaking of treaties with foreign powers, lies within the prerogative powers of the Crown (what you would call the executive power of the Federation [The speech was made to Malaysian students]). The EU Referendum Act 2015 neither expressly nor by implication required that further Parliamentary authority be given to begin the process of withdrawal. The basis on which the referendum was undertaken was that the Government would give effect to the result. Beginning the process would not change the law.
Just before I left to come here, a unanimous Divisional Court held that the Secretary of State does not have power under the royal prerogative to give notice to withdraw from the European Union. 34 The court held that just as making a treaty does not change the law of the land, unmaking it cannot do so, but triggering article 50 will automatically have that effect. What has to be done instead is perhaps not so clear. But the case is destined for our Court, so I must say no more.
The case raises difficult and delicate issues about the constitutional relationship between Government and Parliament. What is meant by the exercise of the executive power of the State? To what extent can it be exercised in a way which may undermine the exercise of the legislative power of the State? We do not have a written Constitution to tell us the answer. But I doubt whether many written Constitutions would tell us the answer either."
I am at a loss to understand how anyone could read this as expressing a view either way.
Apparently it's the whole speech that's wrong, nothing specific.
Very amusing.
It would be normally. But the populist hard right is on the march and this government gives every impression of wanting to cosy up close to it. What price legislation to "democratise" the courts?
The central passage of Lady Hale's speech reads as follows:
"The issue is whether giving that notification falls within the prerogative powers of the Crown in the conduct of foreign relations or whether it falls foul of the rule that the prerogative cannot be used in such a way as to frustrate or substantially undermine an Act of the United Kingdom Parliament. The argument is that the European Communities Act 1972 grants rights to individuals and others which will automatically be lost if the Treaties cease to apply. Such a result, it is said, can only be achieved by an Act of Parliament. Another question is whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement for the 1972 Act.
The contrary argument is that the conduct of foreign affairs, including the making and unmaking of treaties with foreign powers, lies within the prerogative powers of the Crown (what you would call the executive power of the Federation [The speech was made to Malaysian students]). The EU Referendum Act 2015 neither expressly nor by implication required that further Parliamentary authority be given to begin the process of withdrawal. The basis on which the referendum was undertaken was that the Government would give effect to the result. Beginning the process would not change the law.
Just before I left to come here, a unanimous Divisional Court held that the Secretary of State does not have power under the royal prerogative to give notice to withdraw from the European Union. 34 The court held that just as making a treaty does not change the law of the land, unmaking it cannot do so, but triggering article 50 will automatically have that effect. What has to be done instead is perhaps not so clear. But the case is destined for our Court, so I must say no more.
The case raises difficult and delicate issues about the constitutional relationship between Government and Parliament. What is meant by the exercise of the executive power of the State? To what extent can it be exercised in a way which may undermine the exercise of the legislative power of the State? We do not have a written Constitution to tell us the answer. But I doubt whether many written Constitutions would tell us the answer either."
I am at a loss to understand how anyone could read this as expressing a view either way.
Discussing this case in public is unacceptable to many and these comments should have been part of the judgement not some lecture beforehand
Judges are not there to do what is acceptable to you.
I think you may find that I am one of many who think she has compromised her position
The central passage of Lady Hale's speech reads as follows:
"The issue is whether giving that notification falls within the prerogative powers of the Crown in the conduct of foreign relations or whether it falls foul of the rule that the prerogative cannot be used in such a way as to frustrate or substantially undermine an Act of the United Kingdom Parliament. The argument is that the European Communities Act 1972 grants rights to individuals and others which will automatically be lost if the Treaties cease to apply. Such a result, it is said, can only be achieved by an Act of Parliament. Another question is whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement for the 1972 Act.
The the law.
Just before I left to come here, a unanimous Divisional Court held that the Secretary of State does not have power under the royal prerogative to give notice to withdraw from the European Union. 34 The court held that just as making a treaty does not change the law of the land, unmaking it cannot do so, but triggering article 50 will automatically have that effect. What has to be done instead is perhaps not so clear. But the case is destined for our Court, so I must say no more.
The case raises difficult and delicate issues about the constitutional relationship between Government and Parliament. What is meant by the exercise of the executive power of the State? To what extent can it be exercised in a way which may undermine the exercise of the legislative power of the State? We do not have a written Constitution to tell us the answer. But I doubt whether many written Constitutions would tell us the answer either."
I am at a loss to understand how anyone could read this as expressing a view either way.
Discussing this case in public is unacceptable to many and these comments should have been part of the judgement not some lecture beforehand
Judges are not there to do what is acceptable to you.
I think you may find that I am one of many who think she has compromised her position
Of course you do - you are worried the government may lose its case and you are looking to get your excuses in early.
Not sure if this has already been posted, but this transcript of a 2014 talk by Steve Bannon is very interesting indeed - and not what you might expect:
Please, don't fall for the media hype, look at her quotes in their entirety, she explained how both sides would approach it.
Yes, but she shouldn't have done that. It suggests that she will approach the case with preconceptions abut what the arguments are or ought to be, rather than listening with a fresh mind to the actual arguments presented to her in court. To avoid any possible taint that she might have pre-judged the case, she should recuse herself from the case.
I agree,
Just before I left to come here, a unanimous Divisional Court held that the Secretary of State does not have power under the royal prerogative to give notice to withdraw from the European Union.
The court held that just as making a treaty does not change the law of the land, unmaking it cannot do so, but triggering article 50 will automatically have that effect. What has to be done instead is perhaps not so clear. But the case is destined for our Court, so I must say no more.
But then she did say more.
Surely she's said enough by now, that she really needs to recuse herself from the A50 appeal?
Nope, she's looking at it from both points of view.
She's waiting to be persuaded by a good argument from either side.
She is compromised and should stand down
Have you read her speech in full?
Yes and it seems astonishing that any judge should make such comments in public before hearing the case
One rule for Judges, another rule for councillors asked to decide on planning matters....
Or Jurors.
True. Strange how the "elite" set these matters out?
I'm obliged to sign multiple NDAs and Confidentially Agreements. Meanwhile Judges chatter away.
Always amusing to see the sites 'lawyers' going holier than thou on anyone who disagrees. Let's remember that according to a survey published here in the last couple of weeks, the same members of the legal profession were ranked less trustworthy by the public than your 'average man on the street'.
@david_herdson The full context of the half-sentence that causes you qualms is:
"Perhaps significantly, the Government has given up the argument that the issue is not justiciable in our courts. To that extent, at least, it is accepted that we are indeed the guardians of the Constitution: if only we knew what it meant."
The title of the talk was "The Supreme Court: Guardians of the Constitution?" Far from prejudging the case, Lady Hale was giving an ironically anodyne ending to a very milk-and-water speech. Though I tend to agree with @Richard_Nabavi that she would have done better not to touch on the subject at all, so febrile is the atmosphere at present.
I'd regard that self-deprecatory conclusion as hiding a profound change in soft language. And it wasn't just that accepting of the guardian status; it was her willingness to consider that the Court has the power to effectively strike down primary legislation, as she does when she accepts the possibility that only a 'comprehensive' Act might be capable of enabling the triggering of A50. That is to say that a limited Act might not be adequate and if passed, could be ruled unconstitutional. To even consider that the Court might have that right is an immense power-grab, particularly given the subject matter in question.
Lady Hale talked about Article 50, she must be biased. Burn her.
It's unusual to the point being unheard-of that a judge should make any comment at all about a case he or she will be hearing. The issue isn't what she said, it's the fact that she said anything at all.
I think it was unwise. But a sense of perspective is still needed.
@david_herdson The full context of the half-sentence that causes you qualms is:
"Perhaps significantly, the Government has given up the argument that the issue is not justiciable in our courts. To that extent, at least, it is accepted that we are indeed the guardians of the Constitution: if only we knew what it meant."
The title of the talk was "The Supreme Court: Guardians of the Constitution?" Far from prejudging the case, Lady Hale was giving an ironically anodyne ending to a very milk-and-water speech. Though I tend to agree with @Richard_Nabavi that she would have done better not to touch on the subject at all, so febrile is the atmosphere at present.
I'd regard that self-deprecatory conclusion as hiding a profound change in soft language. And it wasn't just that accepting of the guardian status; it was her willingness to consider that the Court has the power to effectively strike down primary legislation, as she does when she accepts the possibility that only a 'comprehensive' Act might be capable of enabling the triggering of A50. That is to say that a limited Act might not be adequate and if passed, could be ruled unconstitutional. To even consider that the Court might have that right is an immense power-grab, particularly given the subject matter in question.
Curiously, the only time that I am aware of the Supreme Court striking down primary legislation it was on the direction of the ECJ. It is a power they might have had (because of supranational law that we had signed up to) but seem to be losing.
The central passage of Lady Hale's speech reads as follows:
"The issue is whether giving that notification falls within the prerogative powers of the Crown in the conduct of foreign relations or whether it falls foul of the rule that the prerogative cannot be used in such a way as to frustrate or substantially undermine an Act of the United Kingdom Parliament. The argument is that the European Communities Act 1972 grants rights to individuals and others which will automatically be lost if the Treaties cease to apply. Such a result, it is said, can only be achieved by an Act of Parliament. Another question is whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement for the 1972 Act.
The the law.
Just before I left to come here, a unanimous Divisional Court held that the Secretary of State does not have power under the royal prerogative to give notice to withdraw from the European Union. 34 The court held that just as making a treaty does not change the law of the land, unmaking it cannot do so, but triggering article 50 will automatically have that effect. What has to be done instead is perhaps not so clear. But the case is destined for our Court, so I must say no more.
The case raises difficult and delicate issues about the constitutional relationship between Government and Parliament. What is meant by the exercise of the executive power of the State? To what extent can it be exercised in a way which may undermine the exercise of the legislative power of the State? We do not have a written Constitution to tell us the answer. But I doubt whether many written Constitutions would tell us the answer either."
I am at a loss to understand how anyone could read this as expressing a view either way.
Discussing this case in public is unacceptable to many and these comments should have been part of the judgement not some lecture beforehand
Judges are not there to do what is acceptable to you.
I think you may find that I am one of many who think she has compromised her position
Of course you do - you are worried the government may lose its case and you are looking to get your excuses in early.
Not at all - I am pleased the Court is going to decide on the serving of A50 as it is better to do it now and clarify the position.
I am also relaxed about Parliament having a vote on A50 if that is required
I am not, however, happy that a judge should lay out the case in public before the hearing
'I hadn't expected to see my comments about the febrile atmosphere confirmed so quickly. Some of our regular posters have gone full-on fruitloop on the subject. ''
Hang on a minute. We were assured by remainers that Britain WAS independent and sovereign. That we merely needed to put the red article 50 button and, hey presto, we would be catapulted free of the EU in a trice.
Now it appears that assertion was a rank lie.
A certain amount of consternation is warranted, on that basis,
David Cameron said that he would invoke Article 50 on 24th June, suggesting that it was a. In his power to do so and b. As simple as writing a letter to Brussels.
Instead, he chose to resign.
Those of us who voted to leave, are expecting to leave.
The central passage of Lady Hale's speech reads as follows:
"The issue is whether giving that notification falls within the prerogative powers of the Crown in the conduct of foreign relations or whether it falls foul of the rule that the prerogative cannot be used in such a way as to frustrate or substantially undermine an Act of the United Kingdom Parliament. The argument is that the European Communities Act 1972 grants rights to individuals and others which will automatically be lost if the Treaties cease to apply. Such a result, it is said, can only be achieved by an Act of Parliament. Another question is whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement for the 1972 Act.
The contrary argument is that the conduct of foreign affairs, including the making and unmaking of treaties with foreign powers, lies within the prerogative powers of the Crown (what you would call the executive power of the Federation [The speech was made to Malaysian students]). The EU Referendum Act 2015 neither expressly nor by implication required that further Parliamentary authority be given to begin the process of withdrawal. The basis on which the referendum was undertaken was that the Government would give effect to the result. Beginning the process would not change the law.
Just before I left to come here, a unanimous Divisional Court held that the Secretary of State does not have power under the royal prerogative to give notice to withdraw from the European Union. 34 The court held that just as making a treaty does not change the law of the land, unmaking it cannot do so, but triggering article 50 will automatically have that effect. What has to be done instead is perhaps not so clear. But the case is destined for our Court, so I must say no more.
The case raises difficult and delicate issues about the constitutional relationship between Government and Parliament. What is meant by the exercise of the executive power of the State? To what extent can it be exercised in a way which may undermine the exercise of the legislative power of the State? We do not have a written Constitution to tell us the answer. But I doubt whether many written Constitutions would tell us the answer either."
I am at a loss to understand how anyone could read this as expressing a view either way.
I certainly don't think it was inappropriate to mention the existence of such a case in this speech. The question would be whether what was said, in the speech, or in any subsquent Q&A session, developed the arguments in any way beyond what had already been argued in the Divisional Court. If not, then no problem, if so, then problem.
If the Democrats had had a good candidate they'd have won the election! Bernie Sanders was appealing to the same disaffected as voted for Trump, he'd have held many of the rust belt states that Clinton lost.
Bernie Sanders never found himself in Trump's cross-hairs. He would have had the same problem as Clinton of piling up most of his votes where he didn't need them. It's only in the rust belt where he possibly could have made a difference, but Trump would have been fighting a different campaign.
Yes, but in the rust belt 1% or 2% was all it took for Trump to win. Trump's narrative of draining the swamp wouldn't have been as effective when running against another outsider. He only won because enough believed in Crooked Hillary to either vote Trump or sit on their hands - in the key swing states.
The key question is what states would Sanders have lost that Clinton held/took, if any?
Lady Hale talked about Article 50, she must be biased. Burn her.
It's unusual to the point being unheard-of that a judge should make any comment at all about a case he or she will be hearing. The issue isn't what she said, it's the fact that she said anything at all.
I think it was unwise. But a sense of perspective is still needed.
Unwise is a very lawyer word, and the one that I would also use in the circumstances.
@david_herdson The full context of the half-sentence that causes you qualms is:
"Perhaps significantly, the Government has given up the argument that the issue is not justiciable in our courts. To that extent, at least, it is accepted that we are indeed the guardians of the Constitution: if only we knew what it meant."
The title of the talk was "The Supreme Court: Guardians of the Constitution?" Far from prejudging the case, Lady Hale was giving an ironically anodyne ending to a very milk-and-water speech. Though I tend to agree with @Richard_Nabavi that she would have done better not to touch on the subject at all, so febrile is the atmosphere at present.
I'd regard that self-deprecatory conclusion as hiding a profound change in soft language. And it wasn't just that accepting of the guardian status; it was her willingness to consider that the Court has the power to effectively strike down primary legislation, as she does when she accepts the possibility that only a 'comprehensive' Act might be capable of enabling the triggering of A50. That is to say that a limited Act might not be adequate and if passed, could be ruled unconstitutional. To even consider that the Court might have that right is an immense power-grab, particularly given the subject matter in question.
One of the things I'm finding difficult to grasp is where the 'Great Repeal Bill' fits in. If the concern is about removing rights from the British people by triggering article 50, then the bill will transfer all current EU laws into U.K. Law so no rights will be lost. If parliament then decides to repeal these laws it will be by due parliamentary process. There's no loss of parliamentary sovereignty
@jcesmond You omit to mention that judges are very trusted indeed. No doubt that was just a careless oversight.
No oversight. Judges were near the top of the table that TSE published. But it did amuse me how low down the scale Lawyers were, along with Estate Agents.
@david_herdson The full context of the half-sentence that causes you qualms is:
"Perhaps significantly, the Government has given up the argument that the issue is not justiciable in our courts. To that extent, at least, it is accepted that we are indeed the guardians of the Constitution: if only we knew what it meant."
The title of the talk was "The Supreme Court: Guardians of the Constitution?" Far from prejudging the case, Lady Hale was giving an ironically anodyne ending to a very milk-and-water speech. Though I tend to agree with @Richard_Nabavi that she would have done better not to touch on the subject at all, so febrile is the atmosphere at present.
I'd regard that self-deprecatory conclusion as hiding a profound change in soft language. And it wasn't just that accepting of the guardian status; it was her willingness to consider that the Court has the power to effectively strike down primary legislation, as she does when she accepts the possibility that only a 'comprehensive' Act might be capable of enabling the triggering of A50. That is to say that a limited Act might not be adequate and if passed, could be ruled unconstitutional. To even consider that the Court might have that right is an immense power-grab, particularly given the subject matter in question.
Curiously, the only time that I am aware of the Supreme Court striking down primary legislation it was on the direction of the ECJ. It is a power they might have had (because of supranational law that we had signed up to) but seem to be losing.
Was there not an act in the late 1960s which included a provision to the effect that the courts could never rule on the consequences of it. The HOL ignored it using the reasoning that the HoC could never have intended that they put acts of parliament above the law. Not quite striking down but similar.
Not sure if this has already been posted, but this transcript of a 2014 talk by Steve Bannon is very interesting indeed - and not what you might expect:
The evidence from SV elections is that AV results would not be greatly different from FPTP.
PR is a whole different ballgame, as would be a move from the Electoral College to a national vote in the US.
I know one thing, if Hilary had won on the same basis Trump won I doubt we would hear a peep from Democrats about how the "system is wrong".
What's wrong is that Trump now gets to mould the Supreme Court as a profoundly conservative body, even though he is trailing Clinton by so many votes. The electoral college is what it is and does sort of make sense in the kind of federation that the US is. What may be less fair is the power that someone who loses the popular vote gets to perhaps profoundly affect the lives of all Americans not only for the next four years but quite possibly for the next 20 or even 30. It's a hell of a lot of power for a loser to have.
He's not a loser though, is he (other than in your world). He's a winner by the rules of the game.
He lost the popular vote. American voters rejected him. The presidency is not a game.
Yes it is. It's just not a trivial game. Games are merely activities carried out according to predetermined rules among known competitors.
Complaining that Trump 'lost' is like complaining that Arsenal (for example) 'lost' purely because they conceded more goals, even though they had a greater share of possession and played nicer football than their opponents.
I am not complaining. I am observing. I have also said that given the US is a federation of states the electoral college makes sense. My point was about the power that someone who lost the popular vote has to profoundly affect the lives of all Americans not just for the term of his presidency, but for 20 or even 30 years beyond that. It is rare in a democracy for those who lose the popular vote to have such power.
In this case, though, the likely new Justices will take a literalist view of the Constitution. As a result they are *less* likely to indulge in judicial activism.
Consequently they won't "profoundly affect the lives of all Americans for the next 20-30 years" because they won't be expanding the role of the federal government in the way that Dems would be more likely to do.
I am not complaining. I am observing. I have also said that given the US is a federation of states the electoral college makes sense. My point was about the power that someone who lost the popular vote has to profoundly affect the lives of all Americans not just for the term of his presidency, but for 20 or even 30 years beyond that. It is rare in a democracy for those who lose the popular vote to have such power.
In this case, though, the likely new Justices will take a literalist view of the Constitution. As a result they are *less* likely to indulge in judicial activism.
Consequently they won't "profoundly affect the lives of all Americans for the next 20-30 years" because they won't be expanding the role of the federal government in the way that Dems would be more likely to do.
The evidence from SV elections is that AV results would not be greatly different from FPTP.
PR is a whole different ballgame, as would be a move from the Electoral College to a national vote in the US.
I know one thing, if Hilary had won on the same basis Trump won I doubt we would hear a peep from Democrats about how the "system is wrong".
What's wrong is that Trump now gets to mould the Supreme Court as a profoundly conservative body, even though he is trailing Clinton by so many votes. The electoral college is what it is and does sort of make sense in the kind of federation that the US is. What may be less fair is the power that someone who loses the popular vote gets to perhaps profoundly affect the lives of all Americans not only for the next four years but quite possibly for the next 20 or even 30. It's a hell of a lot of power for a loser to have.
He's not a loser though, is he (other than in your world). He's a winner by the rules of the game.
He lost the popular vote. American voters rejected him. The presidency is not a game.
Yes it is. It's just not a trivial game. Games are merely activities carried out according to predetermined rules among known competitors.
Complaining that Trump 'lost' is like complaining that Arsenal (for example) 'lost' purely because they conceded more goals, even though they had a greater share of possession and played nicer football than their opponents.
I am not complaining. I am observing. I have also said that given the US is a federation of states the electoral college makes sense. My point was about the power that someone who lost the popular vote has to profoundly affect the lives of all Americans not just for the term of his presidency, but for 20 or even 30 years beyond that. It is rare in a democracy for those who lose the popular vote to have such power.
In this case, though, the likely new Justices will take a literalist view of the Constitution. As a result they are *less* likely to indulge in judicial activism.
Consequently they won't "profoundly affect the lives of all Americans for the next 20-30 years" because they won't be expanding the role of the federal government in the way that Dems would be more likely to do.
Originalist and Literalist judges are just as prone to bouts of judicial activism. The rank hypocrisy of their interpretation of the 14th amendment in Bush vs Gore is a stunning gob of twisted logic.
Lady Hale talked about Article 50, she must be biased. Burn her.
I have some sympathy with what he actually meant with the comments about the Mexican judge although they were poorly expressed.
Let's say I was a judge asked to rule on the future of the financial services industry. I have no personal financial interest in the industry (aside from a few shares in a listed US company) and neither do my wife or children. However, although I have no economic benefit I might be perceived to have an interest because of the interests of my wider family. I would personally feel that I should recuse myself.
Trump's argument was because he was so widely perceived as being anti-Hispanic (fairly or not) that a Hispanic judge would have a similar prejudiced view of him and therefore should recuse himself. It's a broader than normal definition of conflict of interest, but I can see why it could be argued.
What he was saying was not that the judge *couldn't* do his job properly, but that he *wasn't* doing his job properly.
Comments
"The issue is whether giving that notification falls within the prerogative powers of the Crown in the conduct of foreign relations or whether it falls foul of the rule that the prerogative cannot be used in such a way as to frustrate or substantially undermine an Act of the United Kingdom Parliament. The argument is that the European Communities Act 1972 grants rights to individuals and others which will automatically be lost if the Treaties cease to apply. Such a result, it is said, can only be achieved by an Act of Parliament. Another question is whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement for the 1972 Act.
The contrary argument is that the conduct of foreign affairs, including the making and unmaking of treaties with foreign powers, lies within the prerogative powers of the Crown (what you would call the executive power of the Federation [The speech was made to Malaysian students]). The EU Referendum Act 2015 neither expressly nor by implication required that further Parliamentary authority be given to begin the process of withdrawal. The basis on which the referendum was undertaken was that the Government would give effect to the result. Beginning the process would not change the law.
Just before I left to come here, a unanimous Divisional Court held that the Secretary of State does not have power under the royal prerogative to give notice to withdraw from the European Union. 34 The court held that just as making a treaty does not change the law of the land, unmaking it cannot do so, but triggering article 50 will automatically have that effect. What has to be done instead is perhaps not so clear. But the case is destined for our Court, so I must say no more.
The case raises difficult and delicate issues about the constitutional relationship between Government and Parliament. What is meant by the exercise of the executive power of the State? To what extent can it be exercised in a way which may undermine the exercise of the legislative power of the State? We do not have a written Constitution to tell us the answer. But I doubt whether many written Constitutions would tell us the answer either."
I am at a loss to understand how anyone could read this as expressing a view either way.
Very amusing.
For remainers, it seems you are correct. After all, it was their assertion. We are sovereign. In case of loss of sovereignty, break glass.
Of course, us leavers always knew it was never that simple.
https://www.buzzfeed.com/lesterfeder/this-is-how-steve-bannon-sees-the-entire-world?utm_term=.qjonbNLPl8#.bmoP8yoXZ3
Always amusing to see the sites 'lawyers' going holier than thou on anyone who disagrees. Let's remember that according to a survey published here in the last couple of weeks, the same members of the legal profession were ranked less trustworthy by the public than your 'average man on the street'.
Given Bannon made his career at Goldman and Breitbart had a number of Jewish employees, I think the anti-semite charge is difficult to make stick.
I think its true that Bannon has some very questionable views on America's non-white communities, however.
I am also relaxed about Parliament having a vote on A50 if that is required
I am not, however, happy that a judge should lay out the case in public before the hearing
Instead, he chose to resign.
Those of us who voted to leave, are expecting to leave.
I don't see that the speech itself has done so.
NEW THREAD
Oh wait..*
*on the list, I know
Consequently they won't "profoundly affect the lives of all Americans for the next 20-30 years" because they won't be expanding the role of the federal government in the way that Dems would be more likely to do.
Consequently they won't "profoundly affect the lives of all Americans for the next 20-30 years" because they won't be expanding the role of the federal government in the way that Dems would be more likely to do.
Let's say I was a judge asked to rule on the future of the financial services industry. I have no personal financial interest in the industry (aside from a few shares in a listed US company) and neither do my wife or children. However, although I have no economic benefit I might be perceived to have an interest because of the interests of my wider family. I would personally feel that I should recuse myself.
Trump's argument was because he was so widely perceived as being anti-Hispanic (fairly or not) that a Hispanic judge would have a similar prejudiced view of him and therefore should recuse himself. It's a broader than normal definition of conflict of interest, but I can see why it could be argued.
What he was saying was not that the judge *couldn't* do his job properly, but that he *wasn't* doing his job properly.