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Article 50 - requires parliamentary approval watch

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    (Original post by BobBobson)
    Remainians back at it again, with "People are too dumb to make their own decisions."

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    Our entire democratic system and society is based around that premise. We elect politicians to make decisions for us, we go to lawyers to help us understand the law, we speak to doctors about our health and we allow civil servants to help regulate industry. You'll find far more examples of people pushing decision making on to informed individuals than seizing power for themselves. The vast majority of the UK and the world is quite happy with that premise.

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    (Original post by Jammy Duel)
    The big flaw with the second part is that we DON'T elect informed professionals, we elect politicians, which are often as far from informed professionals as you get.

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    Okay, I accept that, but that's how the system's meant to work. It's also the reason we have the House of Lords - where we appoint people to provide expert legislative overview.
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    (Original post by Plagioclase)
    Let's hope that the High Court battle verdict next month says the same because the government currently does not seem to be accepting this.



    Why don't we just replace the House of Lords with paul514 since he clearly knows much better?
    I'd reject the post the lords should be abolished


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    (Original post by Aj12)
    Our entire democratic system and society is based around that premise. We elect politicians to make decisions for us, we go to lawyers to help us understand the law, we speak to doctors about our health and we allow civil servants to help regulate industry. You'll find far more examples of people pushing decision making on to informed individuals than seizing power for themselves. The vast majority of the UK and the world is quite happy with that premise.

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    That post is an oxymoron.

    If we need educated people to make political decisions for us then why is there no tests to be a politician?

    How are we supposed to know what's best for us the voter in our choice of potential MP's on the ballot paper?

    Your post has only one conclusion, a dictatorship


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    (Original post by paul514)
    That post is an oxymoron.

    If we need educated people to make political decisions for us then why is there no tests to be a politician?

    How are we supposed to know what's best for us the voter in our choice of potential MP's on the ballot paper?

    Your post has only one conclusion, a dictatorship


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    Because to win an election is a test in itself. Whilst some politicians are idiots you almost always find those that make it to decision making positions are incredibly well educated. More than this they also have their hands held by well trained and educated advisors and civil servants.

    An election is a number of people arguing why they are best qualified to make decisions and to convince the public of this.

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    (Original post by nulli tertius)
    No this isn't the case and there is plenty enough evidence the withdrawal from Empire to show it isn't the case.

    If we activated Article 50 but enacted no UK legislation or no legislation other than the repeal of the European Communities Act, the position would be that all EU law up the moment of departure that had formed part of UK law, would remain part of UK law.
    I simply don't think that's true. Anything that had been enacted in primary legislation as a result of directives will obviously remain in place, but everything else will cease to have legal effect. The ECA '72 provides that EU law basically is UK law, and after Art 50 triggering and 2 years elapsed, as a matter of EU law we will no longer be a part of the European Union and EU law will be of no further effect (from the EU's perspective). That means from our perspective the same will be the case.

    I'm just very skeptical whether the High Court will interpose itself between parliament and the executive where parliament has the positive power to prevent any triggering if it so wishes. Article 50 triggering is a treaty mechanism, which all serious observers have always agreed is a matter for the executive.

    In any case, the question of whether EU law remains effective as a matter of British law (which is a question, in essence, of internal legal construction) has no necessary bearing on the question of whether the executive can trigger Article 50 (which is a matter of external relations and how the EU perceives that act). It's entirely possible that the executive is capable of triggering Article 50 while it will require parliament to engage in a significant statutory clean-up process to put things right.

    I have to trust my own judgment on this. I remember after the High Court case about the Labour Party freeze date, I said the decision was obviously wrong in law (in fairness, the Shambo decision was an easy aid to that judgment). Quite a few senior barristers I spoke to on Twitter didn't agree; when it went to the Court of Appeal I said I was very confident they would overturn it. I was right. I'm just going to have to trust my own judgment, and we can return to the issue when the High Court rules and see who was right and who was wrong.
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    (Original post by Aj12)
    Because to win an election is a test in itself. Whilst some politicians are idiots you almost always find those that make it to decision making positions are incredibly well educated. More than this they also have their hands held by well trained and educated advisors and civil servants.

    An election is a number of people arguing why they are best qualified to make decisions and to convince the public of this.
    While that's true as a matter of practice, as a matter of law it's not. People are entitled to vote for a candidate for whatever they choose, and no-one else (whether the state or other electors) has the right to make a judgment on that or enquire into it.

    That's why the Remainer moans about the lies coming from the Brexit camp are so puerile, as if the fact that one side lied means it is legally null and void; first, no-one can really know what reasons those 17 million voted to leave. Many of them might have voted for many of the perfectly valid leave reasons. And many of the people who voted remain might have not been very bright and have been scared into it by Osborne's threatened "punishment budget" Second, people are wholly entitled to vote for something for whatever reason they wish, and they don't have to justify it to anyone. The fact that one side believes the other side behaved poorly (in reality, both did) does not undermine the legitimacy of a lawfully-conducted democratic vote.

    In reality a whole mix of judgments goes in to why someone is elected and someone else is not. Some people vote for very stupid reasons (I like his suit better than the other one), but it's made up for by the larger number that don't do that. On the whole, I think you get a kind of aggregated wisdom; the wisdom of crowds.

    On the question of "too dumb to make their own decisions" and experts, we employ experts to manage the system, but it is the voters who set the overall direction of the state. It is perfectly proper in pretty much all other mature democracies that the voters decide on the major constitutional questions by way of referendum. I know Brits are perhaps more used to deferring to their betters, after all you didn't get universal suffrage until quite late in the piece, but the fact there was a decision with which you disagree is not a good reason to say the people shouldn't be allowed to have a say on these most fundamental of constitutional questions. If you're not going to allow voters to decide on that, then you may as well give up democracy.

    I also find it quite interesting that condascension from Remainers to be laughable. Invariably, in my experience, this comes from people who think they possess a great mind but possess merely a good one. The friends of mine who really are exceptionally intelligent, graduated first-class honours from Oxford, working at the chancery bar, and so on... they all voted Leave. There's a kind of low-level, bigoted, not-very-intelligent judgment that will usually default to leave. Then you move one level up and there are people who are broadly-speaking slightly above average, think of themselves as cosmopolitan, etc, and they will default to Remain. But it's the really intelligent people who are able to consider the arguments, to come from a position of true cosmopolitanism, and yet still vote Leave. Also, in my experience, my friends who voted Leave are much more well-travelled and worldly. It's often the sort of "barely out of the lower-middle class" people who are quite self-conscious about their class status who use pro-Europeanism as a kind of proxy for sophistication.
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    (Original post by andrewdwilliams)
    It is not written within Article 50 that it can only be triggered following approval by a nation's legislature. Therefore, I believe it is possible for the government to unilaterally trigger it.

    However, in constitutional theory (as the committee points out) we have the concept of parliamentary sovereignty.
    The government triggering Art 50 does not undermine parliamentary sovereignty. Parliament is still fully entitled to pass a law prohibiting the government from triggering it. The reason the Remainers in the Commons are going via this route is that they want the government to bring a bill for the triggering of Article 50 which they can then find petty and technical reasons to vote against. They absolutely do not want to be seen to bring a bill to the floor which flat-out prohibits the triggering of Article 50.

    So parliament still has the whip-hand, it's just choosing not to use it for political reasons (or the Remainers could not command a majority, either one). In which case I can see no reason for the High Court to go against a thousand years of constitutional law that properly places foreign relations and treaties within the executive purview.
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    (Original post by TheDefiniteArticle)
    The vote is essentially irrelevant (or ought to be considered as such). As an advisory referendum
    It wasn't an "advisory" referendum. It was passed with the intention that it would be politically binding on the government of the day. The fact that it doesn't have automatic legal effect doesn't mean it is not, in practice, binding; that's a technical consideration (in the same way the Queen could technically refuse to give the royal assent to legislation).

    The Remainers really need to get used to the fact they lost. They don't have any means to block the triggering of Article 50. They now need to start from square one to persuade and convince the British people of the benefits of joining the European Union, so that maybe 30 or 40 years from now they will agree to do that (if it still exists). But whining about a valid democratic vote and saying that the government is not obligated, politically and practically, to carry out the decision of the referendum is obnoxious and childish. That arrogant Remainer attitude turned off many people during the referendum, it's probably one of the big reasons why you lost. It certainly smoothed the way for me to switch from Remain to Leave
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    Why is it that the Little Englanders spent so much time bleating about parliament being sovereign, yet when it doesn't suit them they refuse to give them said sovereignty? If the Government pushes this through without a vote then it will set a dangerous precedent for the future; people need to think very carefully about the sort of the country that they live in. I can't quite believe that the UK is going to take this insular position, it really is such a shame.

    All I can say is thank god for my Irish passport and the fact that my children will continue to enjoy the numerous benefits of being an EU citizen.
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    (Original post by nulli tertius)
    No this isn't the case and there is plenty enough evidence the withdrawal from Empire to show it isn't the case.
    By the way, you have to compare like with like. I can see no serious argument for asserting that there was any comparable mechanism to Article 50 in the imperial legal construct that would make it a valid analogy.

    Can you provide an example of which decolonisation statutes you're referring to?
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    (Original post by SHallowvale)
    Either way, Parliament will still need to vote on our exit negotiation.
    Anything else will be completely unacceptable.

    I suspect a major ruckus and possibly something similar to a Parliamentary riot is on the cards if May sticks to her guns and refuses to put this before the House. For one thing, the SNP aren't just going to sit around and accept it.
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    The Committee also draws an analogy between triggering Article 50 and the prerogative power to go to war or to deploy the UK's armed forces. The Committee, in a report published in 2013, took the view that there is now a convention that “save in exceptional circumstances, the House of Commons is given the opportunity to debate and vote on the deployment of armed force overseas” (para 64). While it accepts that no convention has formed to govern how Parliament should be involved in enacting and ratifying the result of a referendum, the Committee considers there to be a “strong argument that enacting the result of a referendum of this magnitude should require at least the same level of parliamentary involvement as a decision to authorise a military deployment.” The Committee therefore avers that it would be “constitutionally unacceptable, not to mention setting a disturbing precedent, for the Government to act on an advisory referendum without explicit parliamentary approval—particularly one with such significant long-term consequences”.
    https://publiclawforeveryone.com/201...on-article-50/

    I do believe some Parliamentary involvement is necessary as leaving the EU has major constitutional ramifications and will be a "process, not an event".
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    (Original post by AlexanderHam)
    I simply don't think that's true. Anything that had been enacted in primary legislation as a result of directives will obviously remain in place, but everything else will cease to have legal effect. The ECA '72 provides that EU law basically is UK law, and after Art 50 triggering and 2 years elapsed, as a matter of EU law we will no longer be a part of the European Union and EU law will be of no further effect (from the EU's perspective). That means from our perspective the same will be the case.

    I'm just very skeptical whether the High Court will interpose itself between parliament and the executive where parliament has the positive power to prevent any triggering if it so wishes. Article 50 triggering is a treaty mechanism, which all serious observers have always agreed is a matter for the executive.

    In any case, the question of whether EU law remains effective as a matter of British law (which is a question, in essence, of internal legal construction) has no necessary bearing on the question of whether the executive can trigger Article 50 (which is a matter of external relations and how the EU perceives that act). It's entirely possible that the executive is capable of triggering Article 50 while it will require parliament to engage in a significant statutory clean-up process to put things right.

    I have to trust my own judgment on this. I remember after the High Court case about the Labour Party freeze date, I said the decision was obviously wrong in law (in fairness, the Shambo decision was an easy aid to that judgment). Quite a few senior barristers I spoke to on Twitter didn't agree; when it went to the Court of Appeal I said I was very confident they would overturn it. I was right. I'm just going to have to trust my own judgment, and we can return to the issue when the High Court rules and see who was right and who was wrong.
    You may be right about the legal position, but is it right morally and politically? The Referendum said nothing about it being binding. If Parliament is to legislate itself out of existence, which is essentially what May is saying, by handing over all power to the Executive, that's something Parliament at minimum should have a say in.

    There's another aspect to this - so far, Theresa May hasn't stood for election as Prime Minister. Are we really going to have an unelected PM deciding on such an important piece of our future, following a less than 2% majority of a referendum that wasn't even binding??

    I think we all need a dose of reality.
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    The referendum was only advisory, whatever the likes of Davis try to claim. Wasn't Farage going on about him only accepting it if it was a landslide? Eventually, the more and more people will realise that the whole thing is madness and Article 50 will never actually be triggered. We have already seen the Leavers discount their belief that parliament is sovereign anyway and their numerous blatant lies will be exposed more and more.
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    (Original post by Fullofsurprises)

    There's another aspect to this - so far, Theresa May hasn't stood for election as Prime Minister. Are we really going to have an unelected PM deciding on such an important piece of our future, following a less than 2% majority of a referendum that wasn't even binding??

    I think we all need a dose of reality.
    Hang on. Parliamentary system means the MPs we elect can decide who is the leader of their party. Having to directly elect a PM is as dangerously undemocratic as holding a referendum :holmes:
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    (Original post by ChaoticButterfly)
    Hang on. Parliamentary system means the MPs we elect can decide who is the leader of their party. Having to directly elect a PM is as dangerously undemocratic as holding a referendum :holmes:
    Things have moved on from the old days when Winston could be visited by a couple of chaps in grey suits and an hour later dash off to see the King to be made PM. These days we like to elect our Prime Ministers, constitutional arrangements or no constitutional arrangements. Indeed, as we all know, the general election has become increasingly a presidential beauty contest between party leaders. I hate that, but it's the reality. May has no public mandate as far as most people will be concerned.
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    (Original post by Fullofsurprises)
    There's another aspect to this - so far, Theresa May hasn't stood for election as Prime Minister. Are we really going to have an unelected PM deciding on such an important piece of our future, following a less than 2% majority of a referendum that wasn't even binding??
    She was elected as an MP - every PM is an "unelected PM".

    Not legally binding, no, but there is an established convention that referendums are seen as (politically) binding.
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    (Original post by malebo55)
    She was elected as an MP - every PM is an "unelected PM".

    Not legally binding, no, but there is an established convention that referendums are seen as (politically) binding.
    In the case of Scottish devolution, for example, prior to the referendum to create a Scottish Parliament, there was a full Constitutional Convention and then an act passed in the UK Parliament sanctioning that there would be a Parliament if confirmed by referendum. So no, there is no such convention.

    I'm still waiting for the EU Membership Convention to be called. :bebored:
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    (Original post by Fullofsurprises)
    You may be right about the legal position, but is it right morally and politically?
    Morally and politically the argument is even stronger. Everyone agreed that this referendum would decide the matter. The government is entitled to give effect to the will of the people.

    The Referendum said nothing about it being binding
    What do you mean by binding? You should try to be precise with your language when we are taking about legal matters. The referendum was to decide whether we remain in the European Union or leave, that is what the legislation said. The referendum decided the matter, and it is, politically and practically, binding.

    If Parliament is to legislate itself out of existence, which is essentially what May is saying, by handing over all power to the Executive, that's something Parliament at minimum should have a say in.
    You're being a little bit hysterical. How is parliament legislating itself out of existence? How is it handing over all power to the executive? Comments like this make it sound like you have absolutely no clue what you're talking about.

    The government's position (which is supported by a thousand years of constitutional practice) is that foreign relations and treaty activity is conducted by the crown. Parliament is still sovereign and if it so wishes it could pass a statute forbidding the government to trigger Article 50, in which case they could not do so. So how is parliament giving up any power at all?

    It has the same power as it's always had. What the Remainers in the Commons are doing is that they don't want to actually bring a bill like that because they will be seen as anti-democratic. They want the government to bring a bill in parliament for triggering so they can find petty and technical reasons to vote against it, without being undeniably anti-democratic in opposing it by prohibiting the government from triggering.

    There's another aspect to this - so far, Theresa May hasn't stood for election as Prime Minister.
    Prime Ministers don't stand for election, we do not have a presidential system. We elect MPs to form a government, and that government may change its leader at any point during the parliament.

    Are we really going to have an unelected PM deciding on such an important piece of our future
    What are you talking about? Theresa May opposed Leaving. She is not deciding anything; the referendum decided the matter. She is merely carrying out the will of the people. It's totally ludicrous for so-called progressives who so often whine about conspiratorial elites to suddenly demand the will of the people be overturned.


    following a less than 2% majority of a referendum

    Err, that is how elections work. If Remain had won 51% to 49%, I don't think you'd be calling the outcome invalid. You have to decide some cut-off point; 50% is as good as any (and in fact, better than most).

    wasn't even binding??
    It was, politically and practically, binding. Everyone agreed this referendum would decide the matter. The typical Remainer arrogance you're showing now is one of the big reasons why I switched from Remain to Leave. The arrogance and utter contempt for democracy shown by the EU (forcing the French and Dutch to keep voting in referendums until they gave the "right" answer, threatening to damage the UK if we leave) is part of the reason the EU is so unpopular. You are damaging your own cause.

    The referendum was held, you lost. You now need to start from square one building up a consensus and convincing people why we should join the EU. Maybe 30 or 40 years from now the people will agree with you. But you need to do the hard yards, rather than showing utter contempt for the people by finding ways to ignore their clear democratic decision.
 
 
 
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