Saturday, August 31, 2019

NOT "a constitutional outrage", by JD

Constitutional outrage? No, not in the least!

Galloway explains very clearly why the prorogue proposed by the Prime Minister is perfectly legal. He also says that the UK has an unwritten constitution but that is not strictly correct because even though it is written down, it is not all in one single document and more to the point it is not sacrosanct and is amended constantly.

"Being uncodified, the Constitution of the United Kingdom is in a state of constant flux. Each new law, each new major decision by judges, becomes a new stone in the edifice of the British Constitution. Thus, the British constitution changes all the time, very slowly, often imperceptibly. Britain moves forward by evolution, not by revolution."

An amendment to the constitution can occur after an Act of Parliament becomes law but that amendment may not become apparent until many years later. A perfect example of that in our current situation is the 1972 European Communities Act. Nobody realised that Parliament had abolished itself and handed over all legislative power to the EU. A few people knew but they did not speak. EU law take precedence over UK law where there is a conflict between the two and that is what lies at the root of the conflict between those who wish to leave the EU and those who wish to remain.

In essence English and Scottish law is grounded in common sense whereas Europe's Napoleonic code is based on rules and regulations: in the UK we are free to do as we wish unless it is against the law - in Europe we are allowed to do only that which is specified in the law.

Sackerson comments:

Lord Justice Laws explained ECA1972 as a "constitutional statute" - a statute enabling secondary legislation, but of a higher order than other such, so that it overrode elements of later Parliamentary Acts where they clashed with it.

However, he went on to say (para 58 here):

‘There is nothing in the ECA which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament’s legislative supremacy in the United Kingdom. Not because the legislature chose not to allow it; because by our law it could not allow it. That being so, the legislative and judicial institutions of the EU cannot intrude upon those conditions. The British Parliament has not the authority to authorise any such thing. Being sovereign, it cannot abandon its sovereignty.’

So the issue - and it touches on far more than EU laws and regulations - is about government by secondary legislation.

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