Wednesbury (1948) will be as much in the mind of every Englishman who has ever studied law as Carlill and the Carbolic Smoke Ball Company. The concept of 'Wednesbury unreasonableness' was the start of a chain of precedents in Common Law that exactly defined whether the behaviour of a public body was excessively bumptious. Whilst Federasts in France and Germany came out of hiding, crawled from their cellars and bunkers and started planning a new Federast Empire amidst the rubble of the last one, the folie de grandeur rising in their breasts, Jurists in England were refining the definition of reasonable behaviour first enshrined in 1903 in the person of the man on the Clapham omnibus. Being reasonable is very important if you're English. Less so if you're a Federast; as Boris writes in the Telegraph
Last week the Attorney General, Geoffrey Cox, valiantly tried to take things forward. He proposed that the test of “reasonableness” – well known to English common law – could be legally applied to any EU attempt to keep us locked in the backstop. It wasn’t much to ask. Merely asking the other side to be reasonable – it seems a very frail protection by comparison with a proper time limit.For Brussels the law and their corrupt political court the ECJ are not there to dispense justice, nor to defend and protect, but as Panzer divisions, to thrust away and crush all opposition in the path of the Federasts. For the EU, law is a weapon, one even more effective in subjugating the peoples and nations of Europe than the steel and cordite of military power. Equity and reasonableness, those essentially British concepts, are shredded under the churning tracks of the EU's King Panzers.
Brussels was having none of it. The EU’s formidable negotiator, Sabine Weyand, observed, with perhaps unconscious irony, that the concept of “reasonableness” was unknown to EU law. The talks collapsed. Michel Barnier then tweeted his supercilious and repetitive offer. Great Britain could, of course, leave the backstop, but Northern Ireland would have to remain behind. He thereby summed up, again, the constitutional humiliation that Brussels wishes to impose.
Law, as Boris writes, is just the means by which they wish to impose upon us a humiliation as deep as the Treaty of Versailles - but they can only succeed if Parliament assists them. If we reject and repudiate their poison treaty in its entirety, if we spring free at the end of this month, all their spite and all their malice, all their vindictive hate, cannot reach us.
24 comments:
The fact the Cox seemed unaware of the concept in EU Law speaks volumes! btw, Common Law vs. Napoleonic code is one of my strongest reasons for voting Leave!
The traitors in the British Establishment, fronted by the cowards in Parliament, fear the EU Kommissars (and Germany) more than they fear the wrath of the British people.
They are not going to allow us to leave the EU until that situation changes.
So it's "reasonableness" versus "steel and cordite", with the added inconvenience that our leaders and established civil service are on the same side as the latter.
I suppose we will be a bit further down the line by the end of this week, but I bet it won't be within the realms of reason.
I would assume that Barnier is far too canny a cove, a'washed with all waters' (as the Germans would say) operator, not to have known exactly what the reaction to his text would be here in the UK.
Again I assume he was simply reminding parliament that May is 'can kicking' , that he was bypassing May to make sure MPs understand that there can be no meaningful change to the WDA. From day one Barnier has been clear , we are either in or out and we pays our money and makes a choice.
that the concept of “reasonableness” was unknown to EU law.
this is actually a GOOD thing. The line between what seems 'reasonable' to some whimsical, cap doffing, 'gawd bless yer gov' *insert Dick van Dyke 'Cockney'* bloke on the Clapham omnibus and 'right thinking' is horribly thin. Indeed these days I shudder to think what the average person on a bus to Clapham finds 'reasonable'...Sharia law perhaps?
Much better the Selmayr/German/EU system:know every letter of the law , use it, abuse it , twist it out of all shape like a party balloon but never actually break it.
Most of the EU seems to operate mostly under Roman Law - only that which is permitted is allowed. The UK operates under mostly Common Law - anything which is not prohibited is allowed.
Roman Law puts the State in charge, and allows them to ignore their own laws when necessary.
Which perhaps explains the EU legal stance, and which alone makes Brexit worthwhile.
Wot Span Ows and DiscoveredJoys said. The EU's Napoleonic Code is precisely the threat to being British that we must frustrate; ergo, we must leave without reservation, customs unions, backstops, or any other encumbrances. Immediately is barely soon enough.
It's not about queues of trucks or Good (?) Friday Agreements, or EU citizens having free right of access here (good luck to 'em - they're great, by and large). What we have here is a binary, existential, choice. Leave and be British (with all our faults), or remain and become part of the ultimately-doomed EuroBorg.
Once we've left, the next job at hand is to sort out the immigration and immigrants that really do pose a threat to being British. And it doesn't come from Europe.
"Much better the Selmayr/German/EU system:know every letter of the law , use it, abuse it , twist it out of all shape like a party balloon but never actually break it."
Lovely Jack, I was listening to some labour wonk ranting on about new "private" rental rules which if implemented, would guarantee that small time private rentiers sell up and run for the hills.
Basically, it would mean that the tenant has the right to occupy the rentier's property forever, the only get out for the property owner is to apply to the government for permission to sell one's property. Permission will only be granted in special cases...
Presumably, greasing the correct palm would work... But never mind, the government is now in full control of people's property as well as everything else.
Apparently it is a copy of the German property system.
Reasonableness in action!
This concept of 'law' - as far as the EU is concerned - has always intrigued me.
Being part of the 'horny-handed sons of toil' brigade, I was a bit miffed that rights that had been fought for in national parliaments could be overturned by an EU court. I am speaking of the quartet of court cases brought against trades unions - the Laval quartet.
This seemed to me to be workers' national industrial agreements vs an international corporate court (A very potent argument that was raised during the TTIP campaigns)
I further noted the formation of the European Gendarmerie Force (EUROGENDFOR or EGF) - a supposed force for peaceful good with a coat of arms bearing a grenade and dagger.
The motto on that coat of arms being "The law will bring peace" - but whose law?
We are supposed to be living under treaty law, and yet none of us has had a say on the treaties that created those laws.
I will no doubt be hit about the head with "But your elected governments enabled these treaties" - and the argument would be true; but it has been the exclusion of a demos that always makes me regard any EU law as morally and democratically irrelevant.
This all boils down to what Raed started talking about weeks ago - the exclusion of people from the democratic process.
Had we been informed, consulted and included in the whole process of EU creation/formation we could have either rejected their actions/motivations, suggested (fought for) reasonable implementation of their intended function or just walked away when the discussions became unreasonable.
But since TPTB know that we are both 'reasonable' and 'intransigent' it is difficult to imagine that, had we been INFORMED, we would have agreed to any of the ludicrous policies that have taken the EU to where it curently is and precisely why we want out.
Apparently it is a copy of the German property system. -right writes
Really? Certainly doesn't sound like it to me at all but I suppose the law might have changed since I was last a tenant in Germany.
Then again the yUK government has time and time again done its best to make life impossible for small time private landlords. I will say quite openly-and bear in mind I claim Housing Benefit myself- that if I were a landlord I would be very very reticent to accept anyone on benefits (and I include working tax credits as a benefit).
As a former construction project manager Raedwald, you would surely be cognizant of the concept that when yUK bid on the "big new shiny European project membership" back in the 1970's there would be a clause stating that this agreement is subject to the laws of ***** and any disagreements will be adjudicated therein. (I paraphrase of course). yUK does not get to pick-and-choose which legal system applies.
Just because lunatic politicians get themselves in difficulty by not knowing what they signed up for is no reason for the EU to abandon all legal precedence.
This sorry exercise has exposed yUK politicians for the shysters they are, no wonder remainers fear allowing these idiots more power.
I have done more than my share of whingeing about EU regulation, so used to find Boris Johnson's articles about the Bonkers Bureaucrats of Brussels much to my liking. They were always entertaining but, as Sir Max Hastings has since admitted, not always true. Johnson never bothered to use his time in Brussels to find out how the EU really worked (although he was quite keen on the EU at one time). So he has more or less the same level of invincible ignorance as most British politicians, buoyed up with the self confidence which Eton so bountifully confers. I don't think his journalism is necessarily any more accurate today, even though his fee is reputedly several hundred thousand per annum.
He was a great enthusiast for "having our cake and eating it" - that is being right outside the EU but continuing to enjoy the same market access as if we were still members- the theme of Mrs. May's "deep and special partnership with frictionless market access" in her Lancaster House speech of January 2017. Anybody with a nodding acquaintance of how the EU works would know that was a non-starter, as it would destroy the integrity of the border of the single market because every other country would demand similar treatment. Even if there is no tariff and a free trade agreement, goods crossing the external border are subject to official controls for health and technical compliance- quite normal in any customs jurisdiction. Tory arrogance and ignorance insisted that the EU would cave in at the very end "because they sell more to us than we do to them"
As David Davis remarked in December 2017 "I don't have to know very much. I don't have to do very much" It was only in January 2018 that he suddenly realised that, outside the EU, we would be a "Third Country" and thought that the EU was being really beastly about that. All British certification of quality standards would cease to be valid for EU purposes - which is why Rolls Royce's regulatory compliance operation is now in mainland Europe. It was the job of the civil service to advise of the consequences beforehand but, when Sir Ivan Roger our experienced Permanent Representative in Brussels did so, he was ignored and treated in such a way that he resigned in early January 2017. Tories denounced him as a Machiavellian Europhile, obstructing Mrs May's master plan.
If the government had meant it at all, that was the point where they would have begun the construction of necessary physical infrastructure, border control posts and recruitment of personnel.
Within a week or two of Brexit day, things are woefully unprepared. From January 2017 I badgered my MP with information about the fate of our sheep farmers who needed advance information, so that they could adjust their breeding programmes if EU tariff and sanitary inspection were to be required. Only three weeks ago, Mr Gove told the NFU conference that he hadn't a clue and he still hasn't.
That's just one industry . There must be many more.
Having campaigned for forty years to leave the EEC/EU, this situation is ( to put it mildly) rather disappointing. Four years ago I had a passing nightmare that a botched Brexit could destroy public support for independence but I never imagined anything like the incompetence of this government.
ooooh we have a tie-breaker for the 'Mostes Common Sense In a Comment On A Brexiteer Blog' today! Ed Spalton or Cas? Sometimes the chocolate assortment box of life makes choices difficult indeed, No I'm not being sarky-infact I was recommending the complete musings of Ed Spalton to some whinging Brexiteers just the other day. Seriously, it was shocking and disheartening to discover that seemingly no one, on a coach full of Brexity Norfolkers, had ever heard of Campaign For An Independent Britain.
Common Law is only part of the English judicial system. It is trumped by Equity, but both are defeated by Statute, that is, by Acts of Parliament and by Statutory Instruments (NB these can often be made by ministers without reference to Parliament). In so far as it can be identified, all are subordinate to the Constitution.
EU law simply forms part of Statute, as Parliament must ratify it for effect. There is no systemic conflict.
Jack Ketch,
Thank you for the compliment and criticism. CIB (Campaign for an Independent Britain) is not hiding its light under a bushel quite so much these days . Our website has been completely overhauled by a new recruit, Dr. Anna Bailey. Please do have a look and sign up for weekly
updates. www.campaignforanindependentbritain.org.uk
We are holding our annual rally on the afternoon of Saturday 13th April at the Royal Overseas League and are fortunate to have DR. RAY BASSETT, an Irish Diplomat, as a speaker. Unusually for a member of the Irish establishment, Dr. Bassett is much opposed to his government's attitude on the Backstop agreement. He was part of the Irish team which helped put together the Good Friday Agreement and was also Ambassador to Canada before his retirement. So I think we will be considerably wiser by the end of the afternoon. The programme for the rally will go up on the website in the next few days.
So how does acquire communities and the ECJ come into this?
"EU law simply forms part of Statute, as Parliament must ratify it for effect. There is no systemic conflict."
Often in the form of statutory instruments (decisions, and or regulations in eurospek), in which case there is usually no ratification, since in order to maintain our membership, these are compulsory. There is often debate regarding directives, some or all of which become statute following debate and scrutiny.
So, EU bollox finds itself superior to common law and equity...
Pound of bananas anyone?
Edward, the point is that the Single Market isn't a "good thing". It is a wickedness. Hence the protection of it is a wickedness too. Ask yourself, if the CBI are for it, how can it possibly not be that the opposite is the correct course?
You are correct - if the UK were allowed different access to it all the other states would want that too. And there we have our answer. the Single Market is an open, free engine for trade and the wonders of the market. It is a closed, set of chains for the benefit of those inside the tents of established interests.
The other theme of today is law and demos. The EU used to talk much about subsidiarity. how we all laughed. I think that Westminster is too far away from me to know what is best for my corner of the realm. I want local insight into events and situations not supranational rules sprouting from the mouths of INSEAD nobodies. And anyway, the notion that the EU makes or has a legal framework is a stupidity. The EU is the Holy Roman Empire but with five popes.
Yes, EU law is the equal of UK Acts of Parliament and Statutory Instruments. So of course it trumps the common law and equity, as do they, but only within the rather limited competences of the Treaties. You make rather a big deal about that, right-writes. The ruling classes have always trampled the common law when it suits them. It is how all those with Rights Of Common were thrown off the land and into the satanic mills by the Inclosure Acts, for instance.
Parliament is sovereign. The UK could not otherwise leave the EU.
Jack Ketch,
Thank you for the compliment and criticism. CIB (Campaign for an Independent Britain) is not hiding its light under a bushel quite so much these days -Ed Spalton
Actually no criticism was intended, indeed I'm surprised you thought so. No doubt I expressed myself poorly but I wasn't having a go at either CIB or you. My criticism was aimed at those brexiteers, my travelling companions, who give brexiteers a bad name by not taking the trouble to inform themselves. Correct me if I am wrong but CIB have only been around almost longer than I have (1968)? Surely it is not unreasonable to expect anyone professing a virulent belief in Brexit to have at least, at some point in the preceding 50 odd years, have checked out CIB whether they agree with its aims or no?
If you understand how "unreasonable" the EU can be when it comes to territory and political gains, then like me you'll be looking into the state of of UK air defence systems.
It doesn't look good.
The EU has form for stirring the pot and creating division: just look at (most recently) Ukraine and before that the Balkans. Not what you'd call "reasonable" outcomes, certainly in the short term either of them.
Not all of their malice will be neutralised.
We can expect maximum disruption to our trade, by any legal or illegal means, and harassment of our citizens whether visitors or (especially) residents.
But the general thrust of your post is correct.
If we get a no-deal Brexit.
Which, of course, we won't.
Theresa May needs to stop clinging on. Tell Juncker to go and fuck himself, and let's just get out.
Tariffs on German Cars starting tomorrow. And no billions for the EU.
"Up yours, Delors!" as the phrase used to say.
@WY - any disruption of trade affects the sellers as well as the buyers. I don't thnk the EU could (safely) interfere with trade without incurring the wrath of the businesses at each end. The EU's finances couldn't really cope with any additional stress.
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