Friday, November 04, 2016
Implications of the UK High Court's Brexit decision
I will bring an analysis up later. In the meantime, this link will take you to the text of the UK High Court decision on the Brexit appeal. It's important in constitutional terms with implications for all Westminster countries. While I am thinking, I would be interested in your comments.
Subscribe to:
Post Comments (Atom)
10 comments:
Jim, I can only ask questions. Do the implications for Australia depend largely on the High Court's view of the judgement? Is there any reason to expect that the High Court unlikely to be impressed by the reasoning? If the High Court accepts the reasoning would that have Implications for the ability of the Commonwealth to use international treaties as a basis to legislate in areas where it lacks powers under the Australian Constitution? Are there ways around a restriction on use of the foreign affairs powers which would not depend on State government cooperation?
All very good questions Winton, and much easier than the usual boring stuff like health, education, and an out of control budget. I suggest we immediately form a committee of inquiry to investigate the tantalising prospects you merely hint at.
That's what we do, and we're very good at it :)
kvd
Interesting questions, Winton. The UK decisions will be appealed to the Supreme Court. Assuming that court rules in the same way for the purposes of discussion.
The implications for Australia depend upon the the extent to which the High Court considers the principles germane. Central to the UK case was the powers of the executive v Parliament. Brexit was voted on, but the referendum was advisory only. The subsequent Government decision to act on the referendum had the effect of taking away rights that had been awarded to people by legislation. Only Parliament had the power to do that.
I don't think that it has implications for the use of the foreign affairs power, but I stand to be corrected.
Jim, my reading was that the central issue was the power of the executive to make/unmake a treaty, where this might conflict with the constitution. It struck me that there was a parallel with use of the foreign affairs power in Australia. But, as kvd suggests, we may need a committee of inquiry to establish the facts :)
Thinking further about this one, Winton, on this hot afternoon. If the Australian Government bases legislation upon a treaty using the external relations power and then withdraws from the treaty, the the legislation will arguably be voidable unless it can be also be based on another head of power. I guess that the more germane question could the Government intentionally abrogate previous legislation by withdrawing from a treaty. I would think not if the treaty itself was enshrined, validated, by previous legislation. Then it would be over-riding Parliament. It would have to change the act.
The UK decision also went to the question of rights created by legislation that would be taken away be executive decision.
We definitely need a committee of inquiry. kvd as chair?
That seems right to me Jim, but my opinion on such matters is not worth much.
Perhaps Justin Gleeson could be asked to join the committee to add some much needed legal expertise - and because he might have some time on his hands.
Committee of inquiry; opening statement from the chair:
"The executive government of the day is empowered to do any and all things granted it by the parliament of the day, which itself is merely an expression of the majority will of the people, voting periodically. The conventions noted in the preceding sentence are more often honoured in the breach, than observed. Committee is adjourned."
kvd
(Usual daily rates of emolument and LAHA apply for members of this proceeding)
kvd: You haven't mentioned timing. In view of the importance of the matters under consideration we obviously need an extension of time to allow us to hold hearings in London and Paris.
Good idea Winton! Are you available as alternate chair? Alternate cities, perhaps?
And I'd suggest Jim as counter of elephants in the room (or rooms, as you suggest) and also, definitions: there are at least 20 words in my opening statement which could do with a good rumination - and there we are back to elephants, again.
This would clear the throat for the real work; a couple of years would see us start :)
kvd
I need a strong scotch before starting!
Post a Comment