Posted on 02/20/2017 6:47:44 PM PST by naturalman1975
Theresa May made a highly unusual appearance at the House of Lords today as peers began their two-day debate on the Brexit bill.
The prime minister sat close to the throne as Lords leader Baroness Evans said the Government had a ‘strong mandate’ from the people and elected MPs to trigger Article 50.
‘This Bill is not the place to try and shape the terms of our exit, restrict the Government’s hand before in enters into complex negotiations or attempt to re-run the referendum,’ she added.
The European Union (notification of Withdrawal) Bill has passed major hurdles in the House of Commons.
But unlike with the lower chamber of parliament, the government does not have a majority in the Lords, meaning amendment is possible.
(Excerpt) Read more at metro.co.uk ...
The House of Lords cannot block these bills, but they can delay them (potentially by up to a year) and could use that delay to try and force amendments if they chose to (putting pressure on the government to amend to avoid the delay).
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There’s a few reasons as I understand it, but the main one is that doing so could invoke challenges through the European courts to whether or not an EU member has a right to invoke that principle. Article 50 was introduced in the Lisbon treaty largely because of the debate over that.
The last thing Britain needs is European courts interfering on this issue - especially as the most likely court to be involved is an EU court.
Article 50 gives all the negotiating power to the EU. It guarantees the ECJ a say, and possibly even the ECHR. It’s an expanded version of the secession clauses that were in the USSR’s constitutions.
It is not a foregone conclusion that EU courts would have jurisdiction over a rebus sic stantibus invocation, because that involves the Vienna conventions and UK sovereignty has to be respected in that case.
I'm told it does by people who are apparently experts. Short version as I understand it - Article 50 is fairly unambiguous (Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.) whereas whether withdrawal under clausula rebus sic stantibus is highly debatable for two reasons - references to the EU as inherently permanent in what is now Article 53, and the fact that the UK would find it hard to argue that the possibility of 'changed circumstances' had not been contemplated, given the debates of the 1970s (where British politicians expressly stated that they worried the treaty would be broadened) - under the Vienna conventions, clausula rebus sic stantibus does not apply if the changes were contemplated and so should have been taken into account when the treaty was signed.
Mmmmm, yes, highly unusual. Also highly unusual, London with a freaking MUSLIM MAYOR. Yes, Mmmmm, highly unusual, mmmmyes.
A freaking Muslim, non British Mayor. As bad as having Obama
as Mayor or Prime Minister.
While Article 50 does contain provisions that don't make withdrawal entirely straightforward, paragraph 3 means that once it is invoked, Britain is out in two years unless it agrees to an extension. That gives far greater certainty than potentially years of litigation in CJEU.
Like I say, I'm not an expert on this - I know British constitutional law very well, but the intricacies of the EU are something I haven't studied in detail - but people I know who are experts on both and who I know genuinely want Britain out of the EU, are telling me that Article 50 is the best approach. They could all be wrong but one of them has actually said that if clausula rebus sic stantibus clearly applied, article 50 would never have been necessary in the first place. The EU was designed to try and lock nations in.
I don’t see how rebus sic stantibus involves the ECJ. It is an assertion of Britain’s sovereignty and places the EU and its institutions squarely outside in terms of influence. The ECJ is not the arbiter of all international treaties suddenly.
Article 50 is dangerous. It cannot and will not guarantee that the UK is out without the EU causing damage to it.
I'm not talking about the ECJ - since 2007 and the Treaty of Lisbon, the ECJ (European Court of Justice) is only one component of the JCEU (Court of Justice of the European Union). Another component - referred to as the General Court - is the relevant institution here. Under the terms of the Treaty of Lisbon, this General Court is the arbiter of European Union law, and of the Treaties of the European Union - that is actually its explicit purpose - Articles 263 is the most relevant here but a quick read makes me think Article 267 may also be relevant. All of Section Five is worth looking at.
Article 50 is dangerous. It cannot and will not guarantee that the UK is out without the EU causing damage to it.
No, but it will guarantee they are out. And that may be the more important guarantee in the circumstances.
Britain cannot just render the treaties invalid. Because the JCEU decides what is and isn't valid, not Britain. Any other approach to exit could be blocked by the JCEU indefinitely - would it be? Maybe not, but there are no guarantees at all on that. The approach you are suggesting could trap Britain inside the EU with no change at all for any negotiation for years.
How? Your repeated insistence that Article 50 gives any advantage to the UK seems to be the proof by assertion fallacy, with all due respect. The article nullifies whatever voting rights the UK possessed within the EU from the time it is invoked, and it gives Brussels all the leverage in negotiations and the UK none.
Rebus sic stantibus is always valid, and even necessary because of how the EU altered the treaties by fiat, among other reasons. Pacta sunt servanda does not apply because the EU broke their promises.
Not to mention, the EU is already excluding the UK from voting rights, as well as conferences and negotiations in which it has an interest, without invocation of Article 50. Yet another breach of the treaty.
I could say the same about your repeated invocation of a Latin phrase that you seem to be throwing around as if it is a magical incantation rather than a legal principle that has specific limitations. On Article 50, just read it - it is explicit and quite clear. Paragraphs 1 and 3.
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. .....
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
This is clear and unambiguous.
The article nullifies whatever voting rights the UK possessed within the EU from the time it is invoked, and it gives Brussels all the leverage in negotiations and the UK none.
No, it doesn't - at least not the underlined bit. I believe you're misinterpreting paragraph 4. The UK does not lose its voting rights in the EU from the time Article is invoked. It only loses its rights concerning the specific issues raised in Paragraphs 2 and 3 - and it says explicitly that it only applies in those issues (For the purposes of paragraphs 2 and 3). This is because if it didn't lose those rights, it would in practice be negotiating on both sides. All Paragraph 4 does is say that it can't affect the negotiation position of The European Council in those negotiations. It can still represent itself and it remains able to participate in the deliberations of the EU on all other issues not connected to its exit.
Does Article 50 give Britain any special advantage - only that it means that it's out after two years and a plain text reading leaves very little room for a legal case to stop it. It's explicit. Once invoked, Britain is out in two years at most unless it choose to have the time extended (and the Council agrees). That is a huge advantage when any other approach could prevent the UK leaving as far as the rest of the EU is concerned making it virtually impossible for it to negotiate any advantageous deal with any EU country, and extremely difficult with any other country that doesn't want to be forced to choose between the UK or the EU.
Rebus sic stantibus is always valid
No, it isn't. It's actually quite limited under international law - if it wasn't no treaty could ever be binding. It's limitations are described in Article 45 and Article 62 of the Vienna Convention on the Law of Treaties. (Article 62 outlines when it can be invoked, Article 45 outlines the exceptions to Article 62.)
And this may be even more limited in the case of the EU Treaties.
I've already given you a link previously to a document that outlines legal position, in my view, fairly clearly. I'd also refer you to Hofmeister, Hannes. "‘Should I Stay or Should I Go?’—A Critical Analysis of the Right to Withdraw from the EU." European Law Journal 16.5 (2010): 589-603.
To be fair, Hofmeister believes that in a strict legal sense, withdrawal from the EU under general provisions of international law might be theoretically possible but: Subject to the conditions laid down in Articles 56, 60 and 62 of the VCLT, a state may thus withdraw from the Union. These Articles, however, allow for withdrawal only in very exceptional circumstances, thus making withdrawal a theoretical rather than a real option.
And who would decide whether that was allowed? The JCEU - a body with quite explicit motivations to decide that the Treaties of the European Union supersede the Vienna Conventions in matters concerning Europe. If organs of the European Union didn't routinely display that type of arrogance, there would be far less reason to leave it.
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