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Post by Zany on Apr 15, 2024 18:42:33 GMT
Sorry, I don 't understand this answer equivocal Part of the case presented by the applicants asked the court to look at whether the Rwanda issue made the designation of the UK as a safe country was lawful. However, because of the way the Dublin 3 treaty interacted with Irish legislation the declaration that the UK was a safe country (made before the Rwanda issue arose) was found to be unlawful.
The court declined to look at the effect of the Rwanda issue because, having found the declaration unlawful in any event, there was no relevant issue to be decided.
175 (link) Insofar as the review ground constitutes a separate and distinct challenge to the continuing designation of the UK in the light of developments concerning the Rwanda Policy based on a breach of a duty to regularly review in accordance with s. 72A(4), I am satisfied that it is no longer necessary for me to determine this issue to the resolve the dispute between the parties in either of these two proceedings in the light of my conclusions as to the vires of the designation as set out above. Accordingly, by reason of the doctrine of judicial restraint, I purposely refrain from making any determination on the frequency with which a review in accordance with s. 72A(4) of the 2015 Act is required. This question should await a case in which it properly arises as necessary to the resolution of the dispute.
I am amazed that our government has chosen to legislate on a matter fact contrary to a finding of our Supreme Court. I can't even guess what might emerge when the issue reaches that court next time around.
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Way over my head equivocal, apart from the last bit. |
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Post by equivocal on Apr 15, 2024 19:05:38 GMT
Part of the case presented by the applicants asked the court to look at whether the Rwanda issue made the designation of the UK as a safe country was lawful. However, because of the way the Dublin 3 treaty interacted with Irish legislation the declaration that the UK was a safe country (made before the Rwanda issue arose) was found to be unlawful.
The court declined to look at the effect of the Rwanda issue because, having found the declaration unlawful in any event, there was no relevant issue to be decided.
175 (link) Insofar as the review ground constitutes a separate and distinct challenge to the continuing designation of the UK in the light of developments concerning the Rwanda Policy based on a breach of a duty to regularly review in accordance with s. 72A(4), I am satisfied that it is no longer necessary for me to determine this issue to the resolve the dispute between the parties in either of these two proceedings in the light of my conclusions as to the vires of the designation as set out above. Accordingly, by reason of the doctrine of judicial restraint, I purposely refrain from making any determination on the frequency with which a review in accordance with s. 72A(4) of the 2015 Act is required. This question should await a case in which it properly arises as necessary to the resolution of the dispute.
I am amazed that our government has chosen to legislate on a matter fact contrary to a finding of our Supreme Court. I can't even guess what might emerge when the issue reaches that court next time around.
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Way over my head equivocal, apart from the last bit. Might help if I didn't type gobbledegook.
Part of the case presented by the applicants asked the court to look at whether the Rwanda issue made the designation of the UK as a safe country was lawful.
unlawful!
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Post by Zany on Apr 15, 2024 20:00:41 GMT
Way over my head equivocal, apart from the last bit. Might help if I didn't type gobbledegook.
Part of the case presented by the applicants asked the court to look at whether the Rwanda issue made the designation of the UK as a safe country was lawful.
unlawful!
Yes that makes more sense. |
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Saint
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Post by Saint on May 16, 2024 18:29:53 GMT
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Post by equivocal on May 17, 2024 8:25:40 GMT
I meant to look at this when it was reported. Having done a little research, I'm none the wiser.
I understand the reasons and basis for the disapplication and declarations of incompatibility in Northen Ireland. I also understand that the diisapplication only applies in Northern Ireland. I've lost track of where the bunch of constitutional vandals have legislated to exclude the HRA and the jurisdiction of the ECtHR, so I don't understand if the declarations have any effect (however limited) outside of NI.
Can you help?
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Saint
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Post by Saint on May 17, 2024 8:47:44 GMT
I meant to look at this when it was reported. Having done a little research, I'm none the wiser.
I understand the reasons and basis for the disapplication and declarations of incompatibility in Northen Ireland. I also understand that the diisapplication only applies in Northern Ireland. I've lost track of where the bunch of constitutional vandals have legislated to exclude the HRA and the jurisdiction of the ECtHR, so I don't understand if the declarations have any effect (however limited) outside of NI.
Can you help?
I'm afraid I'm not very familiar with the judgment, Equivocal. When I first heard of the case, I was surprised - how could a court disapply a statute from the sovereign Parliament? Then, I vaguely recalled that the courts are bound to read all statutes so that they are consistent with international law, and will indulge a conceit that it was not Parliament's intention to introduce a law that breaches international law in the absence of express wording to that effect. I assumed that was the basis of the ruling, how an international agreement came to have priority over a piece of national legislation. I could very well be wrong. If I'm correct, I don't suppose the ruling will have any effect outside NI, as the international law in question relates only to NI. I'm not entirely sure that I've understood your question. It's an interesting point of law, so I'll investigate it further with you if I've missed your point. |
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Post by equivocal on May 17, 2024 9:11:11 GMT
I meant to look at this when it was reported. Having done a little research, I'm none the wiser.
I understand the reasons and basis for the disapplication and declarations of incompatibility in Northen Ireland. I also understand that the diisapplication only applies in Northern Ireland. I've lost track of where the bunch of constitutional vandals have legislated to exclude the HRA and the jurisdiction of the ECtHR, so I don't understand if the declarations have any effect (however limited) outside of NI. Can you help?
I'm afraid I'm not very familiar with the judgment, Equivocal. When I first heard of the case, I was surprised - how could a court disapply a statute from the sovereign Parliament? Then, I vaguely recalled that the courts are bound to read all statutes so that they are consistent with international law, and will indulge a conceit that it was not Parliament's intention to introduce a law that breaches international law in the absence of express wording to that effect. I assumed that was the basis of the ruling, how an international agreement came to have priority over a piece of national legislation. I could very well be wrong. If I'm correct, I don't suppose the ruling will have any effect outside NI, as the international law in question relates only to NI. I'm not entirely sure that I've understood your question. It's an interesting point of law, so I'll investigate it further with you if I've missed your point. The judgment is here. I've only skim read it, but it appears that the withdrawal act and the Windsor agreement serve to embed some parts of EU law and HR law in NI. It seems the court applied something like the principle in Factortame to disapply. I wonder if it's the Good Friday and Windsor agreements that allow the declaration? If so, you are probably right that the declaration only applies in NI. |
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Saint
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Post by Saint on May 17, 2024 9:15:37 GMT
I'm afraid I'm not very familiar with the judgment, Equivocal. When I first heard of the case, I was surprised - how could a court disapply a statute from the sovereign Parliament? Then, I vaguely recalled that the courts are bound to read all statutes so that they are consistent with international law, and will indulge a conceit that it was not Parliament's intention to introduce a law that breaches international law in the absence of express wording to that effect. I assumed that was the basis of the ruling, how an international agreement came to have priority over a piece of national legislation. I could very well be wrong. If I'm correct, I don't suppose the ruling will have any effect outside NI, as the international law in question relates only to NI. I'm not entirely sure that I've understood your question. It's an interesting point of law, so I'll investigate it further with you if I've missed your point. The judgment is here. I've only skim read it, but it appears that the withdrawal act and the Windsor agreement serve to embed some parts of EU law and HR law in NI. It seems the court applied something like the principle in Factortame to disapply. I wonder if it's the Good Friday and Windsor agreements that allow the declaration? If so, you are probably right that the declaration only applies in NI. Cheers. I'll look through it in a little bit. |
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Saint
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Post by Saint on May 17, 2024 10:11:30 GMT
I'm afraid I'm not very familiar with the judgment, Equivocal. When I first heard of the case, I was surprised - how could a court disapply a statute from the sovereign Parliament? Then, I vaguely recalled that the courts are bound to read all statutes so that they are consistent with international law, and will indulge a conceit that it was not Parliament's intention to introduce a law that breaches international law in the absence of express wording to that effect. I assumed that was the basis of the ruling, how an international agreement came to have priority over a piece of national legislation. I could very well be wrong. If I'm correct, I don't suppose the ruling will have any effect outside NI, as the international law in question relates only to NI. I'm not entirely sure that I've understood your question. It's an interesting point of law, so I'll investigate it further with you if I've missed your point. The judgment is here. I've only skim read it, but it appears that the withdrawal act and the Windsor agreement serve to embed some parts of EU law and HR law in NI. It seems the court applied something like the principle in Factortame to disapply. I wonder if it's the Good Friday and Windsor agreements that allow the declaration? If so, you are probably right that the declaration only applies in NI. Okay, I've taken a look at the judgment. It seems I was right to suppose that the whole thing hinges on the question of parliamentary sovereignty (yay!). Oddly, the decision doesn't give a lot of consideration to the matter. Noting that there is controversy about the meaning of the Factortame case, the judge proceeds on the basis that the widest interpretation is correct, without explaining why he believes it to be correct. That being so, he dedicates the majority of his judgment to consideration of specific provisions of the Windsor and Good Friday agreements, as well as relevant human rights laws. I think the reading of Factortame he has favoured is incorrect. Parliament is sovereign. It can expressly or impliedly repeal any law. Even if the Windsor and Good Friday agreements preclude the introduction of laws which undermine them, Parliament is constitutionally entitled to undermine them if it so wishes. It is simply constitutionally impossible to 'embed' international agreements. Lord Bridge's decision in Factortame seems to indicate otherwise. His decision is confusing because he clearly states that international law will have priority in the face of the fact that parliament has always been considered sovereign. It was an obiter dicta remark, though, and it's very difficult to understand how anyone could have taken an unreasoned obiter remark as seriously as some have taken it. I mean, if you're going to fundamentally change the constitution, you're going to need a lot more than a throwaway remark to do so. The Government should challenge the decision, for no other reason than it would be the most important constitutional case to reach the courts in, possibly, centuries. I really don't see the judgment being upheld on the ground that the government is not entitled to impliedly repeal provisions of the Good Friday or Windsor agreements. I would have thought a sounder ground for disapplying the act in NI was that the courts have traditionally required express wording of intention to legislate contrary to international law, and no specific mention was made in the relevant legislation of such intention in respect of the Good Friday or Windsor agreements. |
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Post by equivocal on May 17, 2024 10:57:07 GMT
The judgment is here. I've only skim read it, but it appears that the withdrawal act and the Windsor agreement serve to embed some parts of EU law and HR law in NI. It seems the court applied something like the principle in Factortame to disapply. I wonder if it's the Good Friday and Windsor agreements that allow the declaration? If so, you are probably right that the declaration only applies in NI. Okay, I've taken a look at the judgment. It seems I was right to suppose that the whole thing hinges on the question of parliamentary sovereignty (yay!). Oddly, the decision doesn't give a lot of consideration to the matter. Noting that there is controversy about the meaning of the Factortame case, the judge proceeds on the basis that the widest interpretation is correct, without explaining why he believes it to be correct. That being so, he dedicates the majority of his judgment to consideration of specific provisions of the Windsor and Good Friday agreements, as well as relevant human rights laws. I think the reading of Factortame he has favoured is incorrect. Parliament is sovereign. It can expressly or impliedly repeal any law. Even if the Windsor and Good Friday agreements preclude the introduction of laws which undermine them, Parliament is constitutionally entitled to undermine them if it so wishes. It is simply constitutionally impossible to 'embed' international agreements. Lord Bridge's decision in Factortame seems to indicate otherwise. His decision is confusing because he clearly states that international law will have priority in the face of the fact that parliament has always been considered sovereign. It was an obiter dicta remark, though, and it's very difficult to understand how anyone could have taken an unreasoned obiter remark as seriously as some have taken it. I mean, if you're going to fundamentally change the constitution, you're going to need a lot more than a throwaway remark to do so. The Government should challenge the decision, for no other reason than it would be the most important constitutional case to reach the courts in, possibly, centuries. I really don't see the judgment being upheld on the ground that the government is not entitled to impliedly repeal provisions of the Good Friday or Windsor agreements. I would have thought a sounder ground for disapplying the act in NI was that the courts have traditionally required express wording of intention to legislate contrary to international law, and no specific mention was made in the relevant legislation of such intention in respect of the Good Friday or Windsor agreements. That's interesting. I'll have a good look at some point. My initial reaction to your analysis is that I don't think the Government would appreciate a judgment confirming that one of its statutes properly undermines either the Good Friday or the Windsor agreement. Similarly, I don't think it would be particularly keen to hear it had enacted the implied repeal of any sections of the 'Withdrawal" Act. I'm not sure that Thorburn still applies, but I'm guessing that the Withdrawal Act would be classified as a constitutional statute.
Could be some real fun and games to look forward to.
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Saint
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Post by Saint on May 17, 2024 11:02:43 GMT
Okay, I've taken a look at the judgment. It seems I was right to suppose that the whole thing hinges on the question of parliamentary sovereignty (yay!). Oddly, the decision doesn't give a lot of consideration to the matter. Noting that there is controversy about the meaning of the Factortame case, the judge proceeds on the basis that the widest interpretation is correct, without explaining why he believes it to be correct. That being so, he dedicates the majority of his judgment to consideration of specific provisions of the Windsor and Good Friday agreements, as well as relevant human rights laws. I think the reading of Factortame he has favoured is incorrect. Parliament is sovereign. It can expressly or impliedly repeal any law. Even if the Windsor and Good Friday agreements preclude the introduction of laws which undermine them, Parliament is constitutionally entitled to undermine them if it so wishes. It is simply constitutionally impossible to 'embed' international agreements. Lord Bridge's decision in Factortame seems to indicate otherwise. His decision is confusing because he clearly states that international law will have priority in the face of the fact that parliament has always been considered sovereign. It was an obiter dicta remark, though, and it's very difficult to understand how anyone could have taken an unreasoned obiter remark as seriously as some have taken it. I mean, if you're going to fundamentally change the constitution, you're going to need a lot more than a throwaway remark to do so. The Government should challenge the decision, for no other reason than it would be the most important constitutional case to reach the courts in, possibly, centuries. I really don't see the judgment being upheld on the ground that the government is not entitled to impliedly repeal provisions of the Good Friday or Windsor agreements. I would have thought a sounder ground for disapplying the act in NI was that the courts have traditionally required express wording of intention to legislate contrary to international law, and no specific mention was made in the relevant legislation of such intention in respect of the Good Friday or Windsor agreements. That's interesting. I'll have a good look at some point. My initial reaction to your analysis is that I don't think the Government would appreciate a judgment confirming that one of its statutes properly undermines either the Good Friday or the Windsor agreement. Similarly, I don't think it would be particularly keen to hear it had enacted the implied repeal of any sections of the 'Withdrawal" Act. I'm not sure that Thorburn still applies, but I'm guessing that the Withdrawal Act would be classified as a constitutional statute.
Could be some real fun and games to look forward to.
Yeah, you should take a look yourself. The above is just my impression, of course. I didn't consider the political aspect at all. I'm sure you're right to say that the Government wouldn't be pleased with a declaration that it was undermining the Good Friday or Windsor Agreements. On the other hand, it won't be a hard sell to the people they seem to want to impress. Edit: I've just reread the judgment. It seems the judge provided more reasoning than I first thought. There has been more judicial support for the view that Parliament is limited in its powers to make legislation than I was aware of. Still, I would expect the current SC to uphold the traditional view. It'll be interesting to see how it rules. |
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Post by equivocal on May 17, 2024 13:32:30 GMT
That's interesting. I'll have a good look at some point. My initial reaction to your analysis is that I don't think the Government would appreciate a judgment confirming that one of its statutes properly undermines either the Good Friday or the Windsor agreement. Similarly, I don't think it would be particularly keen to hear it had enacted the implied repeal of any sections of the 'Withdrawal" Act. I'm not sure that Thorburn still applies, but I'm guessing that the Withdrawal Act would be classified as a constitutional statute.
Could be some real fun and games to look forward to.
Yeah, you should take a look yourself. The above is just my impression, of course. I didn't consider the political aspect at all. I'm sure you're right to say that the Government wouldn't be pleased with a declaration that it was undermining the Good Friday or Windsor Agreements. On the other hand, it won't be a hard sell to the people they seem to want to impress. Edit: I've just reread the judgment. It seems the judge provided more reasoning than I first thought. There has been more judicial support for the view that Parliament is limited in its powers to make legislation than I was aware of. Still, I would expect the current SC to uphold the traditional view. It'll be interesting to see how it rules.
[527] In short, any provisions of the 2023 Act which are in breach of the WF should be disapplied.
I freely admit I am having difficulty following the reasoning, but it's clearly closely connected with the continuation of EU law and human rights protections flowing from the Winsor Agreement. Quite how the reasoning results in the above I've yet to understand.
I'll have another crack over the weekend.
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Saint
Observer
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Post by Saint on May 17, 2024 15:47:02 GMT
Yeah, you should take a look yourself. The above is just my impression, of course. I didn't consider the political aspect at all. I'm sure you're right to say that the Government wouldn't be pleased with a declaration that it was undermining the Good Friday or Windsor Agreements. On the other hand, it won't be a hard sell to the people they seem to want to impress. Edit: I've just reread the judgment. It seems the judge provided more reasoning than I first thought. There has been more judicial support for the view that Parliament is limited in its powers to make legislation than I was aware of. Still, I would expect the current SC to uphold the traditional view. It'll be interesting to see how it rules.
[527] In short, any provisions of the 2023 Act which are in breach of the WF should be disapplied.
I freely admit I am having difficulty following the reasoning, but it's clearly closely connected with the continuation of EU law and human rights protections flowing from the Winsor Agreement. Quite how the reasoning results in the above I've yet to understand.
I'll have another crack over the weekend.
Yeah, it's a puzzler. Keep us updated if you find out anything more. |
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Post by equivocal on May 17, 2024 17:40:45 GMT
[527] In short, any provisions of the 2023 Act which are in breach of the WF should be disapplied. I freely admit I am having difficulty following the reasoning, but it's clearly closely connected with the continuation of EU law and human rights protections flowing from the Winsor Agreement. Quite how the reasoning results in the above I've yet to understand. I'll have another crack over the weekend.
Yeah, it's a puzzler. Keep us updated if you find out anything more. It seems that Allister challenged the withdrawal act and the protocol/Windsor Agreement in that they contradicted the Acts of Union 1800, a "constitutional" statute. The Supreme Court, rather than deal with the Thorburn issue, held that, since the Protocol/WA is impermanent, where the withdrawal act and the protocol/WA read together serve to contradict sections of the Acts of Union, those sections are [temporarily] suspened - disapplied.
The Irish High Court in the two judgments have taken this to mean that any legislation so contradicted should be suspended/disapplied. As you correctly point out, the withdrawal act and the Protocol/WA pre date the new legislation and the newer legislation ,save a Thorburn type intervention, should act as implied repeal of the offending SIs making out the Protocol/WA and the relevant section(s) of the withdrawal agreement.
If I've understood what's happened properly, it looks to me like an unmitigated mess. No doubt the Government will be relieved to be out of office before this all reaches the Supreme Court.
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Saint
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Post by Saint on May 17, 2024 18:42:57 GMT
Yeah, it's a puzzler. Keep us updated if you find out anything more. It seems that Allister challenged the withdrawal act and the protocol/Windsor Agreement in that they contradicted the Acts of Union 1800, a "constitutional" statute. The Supreme Court, rather than deal with the Thorburn issue, held that, since the Protocol/WA is impermanent, where the withdrawal act and the protocol/WA read together serve to contradict sections of the Acts of Union, those sections are [temporarily] suspened - disapplied.
The Irish High Court in the two judgments have taken this to mean that any legislation so contradicted should be suspended/disapplied. As you correctly point out, the withdrawal act and the Protocol/WA pre date the new legislation and the newer legislation ,save a Thorburn type intervention, should act as implied repeal of the offending SIs making out the Protocol/WA and the relevant section(s) of the withdrawal agreement.
If I've understood what's happened properly, it looks to me like an unmitigated mess. No doubt the Government will be relieved to be out of office before this all reaches the Supreme Court.
Yeah, I would have thought there was an implied repeal. It's a mystery! |
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