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Brexit (the EU Referendum debate)

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PDR
1330069.  Wed Sep 18, 2019 7:08 am Reply with quote

To dugress to the matter of the case currently before the Supreme Court:

The argument from the plaintiff is that the PM should not be allowed to invoke the royal prerogative (proroguing Parliament) for political reasons and/or to prevent Parliamnetary scrutiny of the Executive.

The argument from the defendant has yet to be heard, but in the lower courts was based on two aspects - that the PM has the right to request prorogation at any time and of any duration for any reason whatsoever, and that this is a political rather than executive issue which should therefore not be open to judicial review (or other intervention by the courts).

I can see both arguments, frankly - it's an example of hard cases making bad law. I have no idea how the judges will dugest it, but for me there is a killer argument in favour of the plaintiff:

If it is found that the PM has the right to see Parliament prorogued at any time, for any duration and for any reason she/he sees fit 6then there would be no barrier to the winner of an election immediately proroguing parliament for five years. This would leave the PM free to rule by executive authority alone without any scrutiny by, or reference to Parliament (or even their own party). Parliament couldn't even unseat the PM because they can only hold a confidence vote when the house is in session.

The PM would not be able to pass any legislation, but as we do not operate by annual "appropriations" (like our colonial cousins) there is no actual necessity even to pass annual finance bills to secure revenue so this constraint wounldn't necessarily be a showstopper.

Are we really suggesting that our constitution should allow a PM that much power?

PDR

 
Alexander Howard
1330072.  Wed Sep 18, 2019 7:26 am Reply with quote

As I recall from my constitutional law lectures, the Queen is free not to call Parliament, and the government could carry on just with the executive authority it has from existing laws. However all taxes would soon expire, and the army and air force would be disbanded when their statutory authority expires.

 
PDR
1330076.  Wed Sep 18, 2019 7:51 am Reply with quote

Alexander Howard wrote:
As I recall from my constitutional law lectures, the Queen is free not to call Parliament, and the government could carry on just with the executive authority it has from existing laws. However all taxes would soon expire,


As far as I am aware UK Tax legislation does not "expire" unless there are explicit sunset clauses in the particular acts (which are rare). There is a custom that tax legislation is amended annually as part of the annual financal review drumbeat, but the major part (allocation of cash to spoending departments) is done by the executive rather than by legislation anyway.

Quote:
and the army and air force would be disbanded when their statutory authority expires.


I was unaware of any periodically-renewed statutory authority for the armed foces - could you point me to it?

PDR

 
Alexander Howard
1330077.  Wed Sep 18, 2019 8:10 am Reply with quote

Quote:
and the army and air force would be disbanded when their statutory authority expires.


Quote:
I was unaware of any periodically-renewed statutory authority for the armed foces - could you point me to it?

PDR


Yup - the Armed Forces Acts. The Bill of Rights 1688 forbids the maintenance of a standing army in the realm in time of peace without the consent of Parliament, so the Armed Forces Acts gives that consent but for a limited time, for example the 2016 Act (which I think is the current one) was for one year but extendible up to 2021:

http://www.legislation.gov.uk/ukpga/2016/21/section/1

Taxes are defined by Acts which last, but they have their rates set for just one year, so my understanding is that if Parliament does not pass a new Act each year then the tax expires, and the money stops.

 
barbados
1330078.  Wed Sep 18, 2019 9:27 am Reply with quote

One thing of interest to me on the matter of the court case is one of the plaintiffs Sir John Major, former PM has apparently suggested that it is unlawful to prorogue for political gain.
The same (then) John Major who prorogued parliament to prevent the cash for questions scandal to break before the 1997 election, fat lot of good it did him, but I wonder if the reason this instance wasn’t mentioned yesterday when all of the other occasions were brought up.
Do you think it might have been so Mr Major could be asked in person when he appears today?

 
Celebaelin
1330079.  Wed Sep 18, 2019 9:37 am Reply with quote

Firstly I should like to apologise to dr.bob for the tone of my last post (and for misspelling obfuscatory) and to say that I am now convinced by his argument and indebted to him for his clarification. I should also like to retract my praise for the BBC article which is not, it seems, as clear as I had thought and actually is open to misinterpretation by the particularly hard of understanding.

To put it briefly I was wrong; so sorry about that.

I’d explain the source of my error but that would be pointless weaselling and it’s better for everyone if I just suck it up and admit that I did indeed misunderstand the article.

However...

As regards there being no tariffs within the EU the Wiki article also states

Quote:
A charge is not a customs duty or charge having equivalent effect if:

• it relates to a general system of internal dues applied systematically and in accordance with the same criteria to domestic products and imported products alike

which leads us back to the “non-tariff barriers” section of the article I cited whereby rules applied internally in certain member states can lead to a de facto tariff (that is not called a tariff).

Other “non-tariff barriers” that involve actual payment of a charge not considered to be a tariff occur

Quote:
• if it constitutes payment for a service in fact rendered to the economic operator of a sum in proportion to the service or
• subject to certain conditions, if it attaches to inspections carried out to fulfil obligations imposed by Union law.

I don't really understand what those two mean however.

 
Alexander Howard
1330082.  Wed Sep 18, 2019 10:02 am Reply with quote

It's a head-scratcher, but I would think it refers to excise duties, such as the taxes on booze and petrol.

VAT is a form of excise duty too, but that is standard across the EU (or rather the scheme is standard, not the tax rates).

One big Brexit issue is getting cross-border VAT to work the way it does now, which is to say that a supplier can reclaim VAT he has paid on his purchases, as the tax has been paid again by the consumer, and in the EU this is a cross-border system: buy supplies in Germany at price-plus-VAT, sell products in Britain at price-plus-VAT, and reclaim the German VAT. After Brexit, suppliers will want still to be part of that system. It's simple to agree, but bureaucracy has a way of making things hard to achieve.

 
dr.bob
1330106.  Thu Sep 19, 2019 8:34 am Reply with quote

Celebaelin wrote:
I’d explain the source of my error but that would be pointless weaselling and it’s better for everyone if I just suck it up and admit that I did indeed misunderstand the article.


Many thanks for clearing this up. It was obvious to me that one of us had misunderstood something and I was beginning to worry it was me :)

Thanks for being grown up enough to acknowledge a simple mistake. Let's move on.

Celebaelin wrote:
As regards there being no tariffs within the EU the Wiki article also states

Quote:

A charge is not a customs duty or charge having equivalent effect if:

• it relates to a general system of internal dues applied systematically and in accordance with the same criteria to domestic products and imported products alike


which leads us back to the “non-tariff barriers” section of the article I cited whereby rules applied internally in certain member states can lead to a de facto tariff (that is not called a tariff).


Yeah, this kind of thing definitely complicates the picture.

Celebaelin wrote:
Other “non-tariff barriers” that involve actual payment of a charge not considered to be a tariff occur

Quote:

• if it constitutes payment for a service in fact rendered to the economic operator of a sum in proportion to the service or
• subject to certain conditions, if it attaches to inspections carried out to fulfil obligations imposed by Union law.


I don't really understand what those two mean however.


Me either. I'm trying to imagine what "inspections carried out to fulfil obligations imposed by Union law" might mean, but I can't think of any examples. Unless, for some odd reason, a product might be manufactured in one EU country but the relevant compliance standards are checked in another EU country. I can't think why that would be a particularly useful situation, but maybe this is just a case of the regulations being particularly thorough so as to deal with any possible case, even if they don't actually exist yet.

Alexander Howard wrote:
It's a head-scratcher, but I would think it refers to excise duties, such as the taxes on booze and petrol.


I think that kind of thing falls under the first batch of things Cele pointed out. The ones he referred to as "non-tariff barriers”. They are, after all, "applied systematically and in accordance with the same criteria to domestic products and imported products alike."

 
Leith
1330123.  Thu Sep 19, 2019 2:17 pm Reply with quote

dr.bob wrote:
Celebaelin wrote:
Other “non-tariff barriers” that involve actual payment of a charge not considered to be a tariff occur

Quote:

• if it constitutes payment for a service in fact rendered to the economic operator of a sum in proportion to the service or
• subject to certain conditions, if it attaches to inspections carried out to fulfil obligations imposed by Union law.


I don't really understand what those two mean however.


Me either. I'm trying to imagine what "inspections carried out to fulfil obligations imposed by Union law" might mean, but I can't think of any examples. Unless, for some odd reason, a product might be manufactured in one EU country but the relevant compliance standards are checked in another EU country. I can't think why that would be a particularly useful situation, but maybe this is just a case of the regulations being particularly thorough so as to deal with any possible case, even if they don't actually exist yet.


I think this means that if a country is legally required to implement border checks on something like e.g. the health of imported livestock, then it is allowed to charge the costs of carrying out those checks without that charge being considered a tariff or equivalent.

 
suze
1330165.  Fri Sep 20, 2019 4:57 pm Reply with quote

A thought from my stepdaughter.

Just suppose that Mr Johnson and the good people of the EU do by some miracle come up with a withdrawal agreement with which they are all happy. Given that Mr Johnson's majority in Parliament is currently minus 45, would that agreement have a hope in the Old Hot Place of winning a vote?

 
PDR
1330169.  Fri Sep 20, 2019 6:17 pm Reply with quote

It would depend on what the deal was. If nothing else, I think we have learned that any vote on the brexit terms is effectively a free vote that won't divide on party lines.

PDR

 
suze
1330180.  Sat Sep 21, 2019 4:45 am Reply with quote

That's a fair point.

The odds would have to be against there being a new agreement at all, but let's be optimistic for a second. If Mr Johnson likes it then Conservative MPs will of course be whipped to support it. Whether the DUP will depends what's in it, and Mr Johnson may not be so much their cup of tea as was Mrs May.

The LibDems will be whipped to oppose since they remain Remainist. Will Labour oppose just because it is the opposition, regardless of what the new agreement is? And then we have the assortment of non-party MPs, which I think is the largest such assortment there has ever been. Each and every one of them answers only to him-or-herself.

I would say God knows, but right now I'm not sure that even He knows where this is going next.

 
Alexander Howard
1330191.  Sat Sep 21, 2019 8:29 am Reply with quote

That's a better analysis than I have heard in ages.

 
ali
1330192.  Sat Sep 21, 2019 8:48 am Reply with quote

suze wrote:
I would say God knows, but right now I'm not sure that even He knows where this is going next.


The destination may be doubtful, but I suspect that the mode of transport is a handcart.

 
Stefan Linnemann
1330198.  Sat Sep 21, 2019 12:03 pm Reply with quote

The Tweede Kamer has such confidence in Boris c.s. that they've an emergency law in progress, to allow Dutch citizens currently in the UK to have dual British-Dutch citizenship.

 

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