BREXIT, Supremacy Of EU Exit Law 10/31, & Commencement Act

Oh, this one is deep in the weeds… but it just might explain why Boris has been happy to say he “Will not break the law” (while not saying which law) and also saying “We’re out 10/31 period.”.

What I think the presenter is saying is that, thanks to something called a “commencement act” the UK law stating “out Oct 31” is now operational, i.e. has been commenced, and so is bound to superior EU Law as it is part of a treaty with the EU. Thus no simple act of Parliament can suspend or change it. Thus the “Surrender Bill” can not change it. Thus mandating that Boris must write a letter asking to change it is asking Boris to “break the EU law” per the fixed date already “commenced”. I think. Maybe.

If so, that would explain the actions of Boris, but also the actions of Parliament in being so P.O’d about the prorogation. They wanted more pot stirring time to try to get round this obstacle. More time to get EU coordination to abort the law worked out. They want to be “in the game” for the next 3 weeks, but are not.

It all hinges on a peculiarity in UK law (the “commencement act” that makes something take operational effect) and how that interacts with an EU agreed treaty as “superior law”. Things well beyond my ability to assess as to veracity and / or how both the UK and EU courts might rule.

What I can say with some certainty, is that Boris can well assert that to do as Parliament commanded would require he break a “Superior EU Law – already commenced” and that would be highly unlikely to have a resolution in BOTH the EU and UK courts inside the last 2 weeks of October. Maybe.

It certainly is an interesting idea… 9.5 minutes.

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About E.M.Smith

A technical managerial sort interested in things from Stonehenge to computer science. My present "hot buttons' are the mythology of Climate Change and ancient metrology; but things change...
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19 Responses to BREXIT, Supremacy Of EU Exit Law 10/31, & Commencement Act

  1. karabar says:

    The entire “deal/no deal” has been a sham from the beginning. The referendum had two choices, and only two. Leave or Remain. It is absurd to think that the EU Bolsheviks would entertain any sort of a “deal”. It is also absurd to think that crashing out on 31/10 will in any way harm the UK.

  2. ianl says:

    The UK Supreme Court has already decided (2016, within a few months of the referendum result being posted) that the UK Parliament is the ultimate authority, not some popular vote.

    Twist and turn, shake it all out, no matter as the decision is already made. No election until 2022, as due at the end of the current Parliament. I’m sympathetic to the Leave view but I did not and do not expect that to be permitted. The positions of EU Commissioners, Judges of the various EU law courts, even MEP’s, networking with the rich and powerful – how can the little votes of the little proles be compared with that ?

  3. Chris in Calgary says:

    And I thought things couldn’t get any more convoluted, confused, or discombobulated. Boy, was I wrong.

    If Mr. Taylor is right, it seems that the last act of the EU in Britain will be to enforce Britain’s complete withdrawal from the EU. A delicious irony.

    On the flip side, the more I see of the election law in Britain, the less I like it. The PM is completely enjoined from calling an election, even if Parliament has lost any sense of a majority and is incapable of supporting a government or coming to a decision on a major crisis like the EU issue. The majority of MPs are afraid of losing the election, so they won’t allow one!

    The only thing that will break the current logjam, is a new election, which is needed desperately,. But no one is willing or able to grant one. British democracy has been hog-tied. Hopefully that law will be repealed to allow elections to be called in a minority parliament without the consent of members. By the new Parliament, of course. Whenever that happens.

  4. Bill in Oz says:

    This shambles illustrates the dangers of any country joining the EU.

    Utter bloody shambles !

    The Remainers are traitors to the the UK. Once upon a time that meant arrest, conviction and being executed with their heads on pikes outside London’s gates.

  5. Bill in Oz says:

    Chris, Conservative party PM David Cameron arranged that law to suit the interests on the small minority Liberal Democrats..back in 2011.

  6. A C Osborn says:

    ianl says: 13 September 2019 at 3:14 am
    “The UK Supreme Court has already decided (2016, within a few months of the referendum result being posted) that the UK Parliament is the ultimate authority, not some popular vote.”

    Yes and that Parliament wrote Leaving in to law. They then held an Election where all Manifestos also had “leave” written in to them.
    Remeber “No Deal is better than a bad deal” spoken over 1 hundred times by Treason May?

  7. jim2 says:

    Boris Johnson isn’t going to be the one to lead the UK out of the EU! He is an idiot as far as I can tell. Why? Because …

    A spokesman for the government has called Nigel Farage a “not fit and proper” person who shouldn’t be allowed near government, rebuking in the strongest terms the offer of an electoral pact given by the Brexit leader in recent weeks.

    Nigel Farage’s Brexit party comprehensively defeated the Conservatives in the April elections and look set to inflict more damage in the forthcoming general election if Boris Johnson walks back on his promise to deliver Brexit “do or die”, but the Tory leader’s team has rejected the offer of a truce out of hand, throwing in an insult for good measure.

    https://www.breitbart.com/europe/2019/09/11/embattled-boris-slaps-down-farages-offer-of-help-not-fit-and-proper-persons/

  8. jim2 says:

    If there is no pact between the Brexit party and the Tories, the conservative vote will be split and the anti-Brexit politicians will win the day. From the article:

    A recent survey found that a plurality of Britons back a Johnson-Farage pact in order “to secure a parliamentary majority for a no deal Brexit”; broken down by party affiliation, 89 per cent of Brexit Party supporters and 69 per cent of those who intend to vote Conservative agreed.

    https://www.breitbart.com/europe/2019/09/13/spartans-call-johnson-reverse-rejection-farage-election-pact/

  9. p.g.sharrow says:

    It would appear that another Torie turncoat has shot off his mouth to torpedo Brexit, He would rather see the Tories lose then lose his connection to the EU. Boris had best tell him “You are fired” Farage is surfing the wave while Boris is aimlessly paddling around. Farage does not want to lead Britain but he will do it to escape the clutches of the Brussels Bureaucrats. If Johnson wants to lead he best make the deal with Nigel or he is done…pg

  10. YMMV says:

    The Benn-Burt Bill

    The European Union (Withdrawal) (No. 2) Act 2019, commonly known as the Benn Bill or Benn Act
    The bill was given royal assent on 9 September 2019 and commenced the same day.

    It was written by Hilary Benn (a guy):
    The European Union (Withdrawal) (No. 6) Bill 2019
    “BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:”
    https://publications.parliament.uk/pa/bills/cbill/2017-2019/0433/19433.pdf

    5(3) The provisions of this Act override any statutory or other provision which would otherwise require the UK to leave the European Union on any specified date.

    Aside: The worst programming language ever is English (or any other natural language).
    And the worst code interpreters are humans. Oh well, moving on…

    https://ukconstitutionallaw.org/2019/09/13/oliver-garner-the-benn-burt-extension-act-a-roadblock-to-a-no-deal-brexit/
    “It is paramount, therefore, that the European Council is aware that the consequences of a decision to set an extension date other than 31 January 2020 could set in motion events that may lead to the United Kingdom withdrawing without agreement on 31 October.”
    That’s the conclusion. For the lawyerly explanation, read the article. Twisty turny stuff.

  11. jim2 says:

    So, it sure looks like the no-deal Brexit if off the table save some miraculous chain of events.

    So …

    1. How many of the 28 European Council have to vote “no” to kill any offer of an extension? Could that happen? (Also, what about abstainers? Could abstainers kill any offer?)
    2. If no extension if offered by the EC, then what happens?
    3. If an extension is approved, the what would be a way forward for a no-deal Brexit?
    4. Can BJ keep Parliament prorogued?
    5. Any other scenarios that could lead to a no-deal Brexit?
    6. Is the May agreement the only one that would be considered?

    Still looks like a mess.

  12. E.M.Smith says:

    @Jim2:

    My understanding is:

    1) ANY one country saying NO kills the extension. (Not including the UK).
    2) If no extension is offered, the UK exits on Oct. 31 regardless.
    3) With an extension, no-deal happens if:
    a) You reach the end of the extension without a deal and no further extension.
    b) The Courts find that the first extension wall illegal and the UK already left months ago.
    c) The UK does not accept the extension (mechanism unclear).
    d) ?? Legal Mystery Happens ???
    4) Only with the assent of HM Eliz.
    5) Lots of them, mostly involving kinetic disassembly of various places… not many that would be legal / moral / plausible. Best option is 3b above or similar court fancy dance.
    6) No. Boris can offer most anything to be considered. He could get EU agreement in advance, or he could say “THIS is the deal the UK offers, take it or we are out.” (and hope Parliament has half a clue how real negotiating happens…)

  13. E.M.Smith says:

    @YMMV:

    The “problem” is that the Brenn bill may well be illegal in that the prior “leave on Oct 31” was given “commencement” and that makes it an active EU Treaty type law, so has precedence over any mere act of Parliament. That’s the theory from the video, anyway. IF that is true, it would require the EU and the UK to act to rescind that prior act before any subsequent act could be initiated. (Unclear is the mechanism for the rescinding as it would require the UK Parliament to commit an illegal act to do it.. per the video.. and what the EU would need to do is also unclear. Prior extensions were prior to “commencement” which is a murky idea but seems to mean “we’ve started the ball rolling now nobody can stop it”… sort of.)

    Basically: 5(3) is inoperative as it is a UK Parliament act and “commencement” on the Oct 31 date has happened and that’s now an EU act that takes precedence.

    @P.G. & Jim2:

    Yeah, I don’t get it either. Were I Boris, I’d have announced IMMEDIATELY on hearing of the Farage offer: “We, the Conservatives, are entering into a pact with the Brexit party. We are one people on this.” First off, no Brexit party competition for Conservative seats. Second, you get a lot of Brexit party folks who will decide to vote for you are you are larger AND “the same” on the thing they care about. I don’t see a downside.

    All I can figure is that Boris sees a successful Brexit party as a greater threat than Labor, Lib Dems, or whatever.

  14. Bill in Oz says:

    Is not all this stuffing around by the Remainers just examples of them being traitors ? Off with their heads !

    I never thought I would be saying this seriously in a blog about the UK in the modern day. But this is the same issue as happened in 1530 when Henry the Viii declared himself King of a sovereign England. Anyone who disagreed was a traitor and treated as such. That’s the Brexit precedent.

  15. Pingback: W.O.O.D. 14 September 2019 | Musings from the Chiefio

  16. YMMV says:

    The problem with the Commencement Gambit is that it does not have a champion. Laws don’t enforce themselves and an obscure(?) YouTube video (65,000 views) can’t compete with the MSM.
    (comment on YT: “The Ben Dover Act is about as binding as Chamberlain’s piece of paper.”)

    Legally, I have no idea if it would work (or if it should), but my bet is that it is at best a faint hope. Legally speaking, isn’t the UK already out of the EU according to some other rule? Sometimes rules get overruled or ignored.

    BJ’s best hope is to draw the line in the sand between Ireland and that other island and not between North and South Ireland.

  17. Ian W says:

    Article 50 was triggered by UK more than 2 years ago after the referendum. Article 50 is part of the Lisbon Treaty which Gordon Brown had UK sign up for. It is superior law to the UK laws and any UK laws that are counter to any part of the Lisbon Treaty are null and void. The very ‘Remainers’ that want EU to hold primacy over the UK parliament are thus hoist by their own petard.

    There is an eerie similarity between what is being said about ‘Brexiteers’ and what is being said about Donald Trump. You can swap ‘Brexiteer’ out of one of the rants from remainers and replace them with ‘Trump’ and it sounds just like what you hear every day from talking heads on CNN about Trump.
    I have a feeling that a lot of this harks back to the two treaties TTIP and TPP and their potential interlocking impact as E.M.Smith rather prophetically stated in the post on 15 December 2015. Had these treaties gone through the globalists would have been in complete control of both the EU (Etats Unis) and the EU (European Union) and would have bound that control to all the other countries that had been persuaded to join. As pointed out that would give the global companies running the TTIP/TTP control over immigration (watch what’s happening in the EU already demands that everyone takes African migrants) and also over such things as small arms – and as a treaty the TTIP/TTP would both have supremacy over The Constitution of the United States. Two things prevented this happening Hillary Clinton losing and Brexit referendum voting Leave. In both cases Donald Trump was there more so in the USA of course. So now what we have been seeing is a desperate rear guard action by ‘The Swamp’ to pull the nuts out of the fire. Brexit must be stopped at any cost or somehow keep UK tied to the EU and Trump must be removed/impeached. Then the TTP/TTIP can be revived and the billionaire globalists make a killing while their pet politicians are allowed more power.

    The world order could have been very very different if Brexit vote ‘leave’ had not happened and Clinton had won the election. This is the reason for the blind hatred some billionaires have for Trump he’s (re)moved their cheese.

  18. Pingback: BREXIT, Supremacy Of EU Exit Law 10/31, & Commencement Act — Musings from the Chiefio – Truth Troubles

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