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  1. #1
    Wanna-be Apple nut silver trophy M. Johansson's Avatar
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    Originally posted by TheOriginalH
    I take it I missed something in editing? I see nothing unreasonable in mmi's last post..
    I was referring to this:
    Originally posted by mmi
    sorry Hellbent, but I think you're about as ignorant on this issue as a person can be
    It's not too bad, now that I look at it again, but it doens't hurt to try to keep this thread on track nonetheless, dontyathink?

    The declaration you mention has been largely ignored by most countries for many years now, including the US and UK. In fact, there was no dominant human rights law in the UK at all until the incorporation of the European convention, if I recall correctly in October last year. The nature of our legal system means that all other law, be it international or european in origin, can only ever be persuasive until it is translated into UK statute, as no other sovereignty is recognised.
    Darn. I didn't realize it was so bad. Sweden is very UN/EU friendly, and politicans here are pimping The declaration all the time, so I guess I'm a little damaged. I still think the thing is valid in general, though.
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  2. #2
    SitePoint Wizard silver trophy TheOriginalH's Avatar
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    mmm, forgot about that one. Thread on track, yes, good .

    Oooh, 'cept

    I wish it were "valid". And insomuch as the rest of the UN could turn round and say "hey, you, member, you haven't been adhering to xx&x", it is.

    But that certainly doesn't assure rights for humans, infact, just for fun I went through the list, and was amazed at how many were indisputably contravened in Cuba very recently.

    I am quite pro-Europe I think, but constitutionally, the UK can not "give up" legal sovereignty to any other body. When the Treaty of Rome et al were subscribed to, the UK made clear it would try and keeps its laws congruent with those of the EU, but they could never enjoy higher authority.

    I'm noving Waaaaay ot here (sorry H/B ), but I thought Sweden was one of the few other countries that chose not to adopt the Euro? Am I being thick?
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  3. #3
    Wanna-be Apple nut silver trophy M. Johansson's Avatar
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    Originally posted by TheOriginalH
    I'm noving Waaaaay ot here (sorry H/B ), but I thought Sweden was one of the few other countries that chose not to adopt the Euro? Am I being thick?
    Sweden has chosen not to join the currency union YET - but I would be VERY surprised if Sweden doesn't join.
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  4. #4
    SitePoint Wizard silver trophy TheOriginalH's Avatar
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    ~The Artist Latterly Known as Crazy Hamster~
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  5. #5
    Fried Gold Polymath's Avatar
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    Original H said: "the UK made clear it would try and keeps its laws congruent with those of the EU, but they could never enjoy higher authority".

    This is nearly right (99.9%). EU law is (currently) indubitably and incontestably supreme in the UK, to the point that it supercedes any UK laws which are contradictory. So EU laws do enjoy higher authority. BUT, this is only the case because the UK Parliament says so.
    In other words, if Parliament votes to get rid of EU law tomorrow, then that is that. But, as I say, Parliament currently rules that EU law does enjoy higher authority.
    (This is pedantic on my part, Original H, but worth clarifying.)

  6. #6
    SitePoint Wizard silver trophy TheOriginalH's Avatar
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    So EU laws do enjoy higher authority
    No they don't.

    Parliamentry sovereignty dictates that is not the case. The doctrine means that there is no power in the UK higher than that enjoyed by parliament. Therefore any statute passed by parliament will not be superceded in power by any other authority. Including any EU directives.

    We have agreed to try the "mirror" principle, ie our laws should reflect and consider the guidlines of the EU, and in considering any case judges in the higher courts have a duty to do so. Where a conflict exists that is irreconcilable UK law will always prevail.

    European law simply DOES NOT APPLY in the UK. It is persuasive, nothing more. Hence the introduction of the 1998 Human Rights act, rather than the accepting of the European Convention on Human rights as sovereign.

    This is basic constitutional law.
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  7. #7
    Wanna-be Apple nut silver trophy M. Johansson's Avatar
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    No I'm confused. Does EU laws apply in the UK or not? This thread needs more hyperlinks.
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    SitePoint Wizard silver trophy TheOriginalH's Avatar
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    Not directly no. Statement based on degree which focused on Constitutional Law in the last year, not supposition.
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  9. #9
    SitePoint Wizard silver trophy TheOriginalH's Avatar
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    Sorry, was straying so far off topic thought it warranted a thread of its own. Hope no-one minds, have tried to split it as cleanly as possible
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  10. #10
    Fried Gold Polymath's Avatar
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    OK you've studied law, Original H, but I have too. What you are saying (European law simply DOES NOT APPLY in the UK) really doesn't tally with what I was taught, and what lawyers say:
    The following is all directly quoted from:
    http://members.lycos.co.uk/lawnet/EUROPE.HTM

    "Community law is now part of our law: and, whenever there is any inconsistency, Community law has priority. It is not supplanting English law. It is part of our law which overrides any other part which is inconsistent with it."
    [per Lord Denning in Maccarthys Ltd v Smith [1980].]

    In Maccarthys Ltd. v. Smith 1979 Lord Denning said that "we are entitled to look to the treaty as an aid to construction, but not only as an aid but as an overriding force" unless "Parliament deliberately passes an Act with the intention of acting inconsistently with the Treaty", we shall follow it. This was the case where the Court of Appeal where EU law was applied over the provisions of the Equal Pay Act 1970.

    "The first and fundamental point is that the treaty concerns only those matters which have a European element, that is to say matters which affect people or property in the …countries of the Common Market besides ourselves. The treaty does not touch matters which concern solely the mainland of England and the people in it. These are still governed by English law. They are not affected by the treaty. But when it comes to matters with a European element, the Treaty is like an incoming tide. It cannot be held back…" Lord Denning in H.P. Bulmer Ltd. v. J Bollinger SA [1974] 2 All ER 1226 at page 1231.

    An example of the seriousness of the battering that parliamentary sovereignty has taken was seen in the Factortame 1991 case, where the House of Lords suspended, in a serious derogation from the traditional doctrine of parliamentary supremacy, the Merchant Shipping Act 1988, while awaiting the European Court of Justice's judgment.

    Whilst there is no doubt that if an inconsistency with EU law is accidental, then the EU law should have precedence, it seems that if the breach of EU legislation is intentional by the UK courts, it seems that the courts should follow the UK legislation, since the European Communities Act enjoys no special constitutional supremacy, and later statutes traditionally take precedence, but do so would necessitate the implicit repeal of at least part of the European Communities Act, and so the UK would have to leave the EU. To do so would require explicit orders from Parliament and would be improbable to say the least.

    (End of quotes from the above-mentioned website)
    Quote from: http://atlantis.ncl.ac.uk/modules/LAW152/iel2.htm
    "All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom and shall be recognised and available in law and be enforced, allowed and followed accordingly." - European Communities Act 1972, which was signed by the UK.

    There is absolutely no doubt that EU law takes precedence, even if it is only because parliament says so. But there is no doubt that parliament does say so, and this has been upheld in the UK courts as shown above. If parliament decides otherwise, that is entirely different, but parliament does not decide otherwise, so EU law is supreme.
    Note for Non-UK, non-law followers: Lord Denning of the above court cases (he's dead now, sadly) is easily the most authoritative voice in UK law this century.
    It would be a brave man who contradicts his utterances.

  11. #11
    SitePoint Wizard silver trophy TheOriginalH's Avatar
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    Well put, and Factortame should have been rolling off my tongue rather than the "oh yeah" that occured as I read your post, but it still illustrates my point. (Denning is my fave judge, so much so I named one of my cats after him...).


    As stated by Denning, unless expressly stated uk law shall be read as having intended to comply with eu law (somthing I alluded to re judges in an earlier post). This in reality almost constitutes one of our wonderful "legal fictions" (like for example the lost modern grant). But by Factortame (a key case indeed):
    where the House of Lords suspended, in a serious derogation from the traditional doctrine of parliamentary supremacy, the Merchant Shipping Act 1988, while awaiting the European Court of Justice's judgment.
    it was still the higher courts of this country that enforced the policy, not eu law. The law was persuasive, and caused action by our courts, and that I've never denied, but it is not the de facto standard until ratified by our own legal system.

    If I remember correctly even the 72 act is a ratification (with reservations) of the Treaty of Rome.
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  12. #12
    Fried Gold Polymath's Avatar
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    I think we agree now
    Say hello to Denning for me, I hope he is as wise as his namesake!

  13. #13
    SitePoint Wizard silver trophy TheOriginalH's Avatar
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    Originally posted by Polymath
    I think we agree now
    Say hello to Denning for me, I hope he is as wise as his namesake!
    Unfortunately he's thick as pig pooh. His sister "Freud" on the other hand....now there's an intense kitty.....
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