greyhall

The Separation of Powers

Royal Courts of Justice

Royal Courts of Justice

The robust discussions we have had about the weight to be given to the UK referendum by the British government has taken a more complex view in light of the recent court ruling. This Barbados Advocate editorial attacks the legal implications with vigour – Barbados Underground

For those among us who consider, rather quaintly, that the voice of the people as expressed in referenda and other statements of public opinion is sacrosanct in a democracy; a view that appears to have been shared in some respects by the current UK government, the recent decision of an English court, comprising a distinguished Bench consisting of the Lord Chief Justice of England and Wales, the Master of the Rolls and an Appeal Court Justice, would seem to suggest that this is a misperception and that in the Constitution of the UK ,at least, Parliament is supreme.

In fact, however, the decision in R v The Secretary of State for Exiting the European Union does not go quite that far. It is a given that on June 23 of this year, in response to a referendum as to whether the United Kingdom should remain a member of or leave the European Union [EU], the electorate answered that The United Kingdom should leave the EU.

Armed with this decision, the Crown, as reflected in the government of the day, and that in the sense of the Cabinet, considered itself competent to use its incidental prerogative powers of treaty making and, impliedly, “treaty-unmaking”, to leave the EU in accordance with the popular answer to the referendum.

Whether it was competent to do so raised in the minds of their Lordships a justiciable or triable issue of law rather than, as they emphasized, the political issues of the merits or demerits of a withdrawal buy the UK , the content of government policy in this regard, or what use might be made of the Crown’s prerogative powers. These issues, for them, were fit to be resolved through the political process.

In spite of the electoral sanction, however, there was one catch to the condign exercise of its prerogative powers by the Crown. The 1973 accession to the EU, then the European Communities, had been effected by the ratification of the relevant Treaty by the government, the enactment by the UK parliament of the European Communities Act 1972 to give effect to Community law in the national legal systems of the UK and then ratification by the UK and other Member States of the Treaties. Parliament through this legislation gave effect in each jurisdiction of the UK to the binding rights and obligations under the Treaties. In consequence, according to the Court, any purported withdrawal from the EU would have the effect of nullifying some of those rights under EU law that had been incorporated into domestic law.

However, the repeal of any legislative provision, as would be the substantive consequence in such an event, is exclusively a matter for Parliament in the UK and, as their Lordships stated, the most fundamental rule of the UK Constitution is that Parliament is sovereign and can make and unmake any law it chooses. The Crown, subordinate in this regard, cannot by the exercise of its prerogative powers override legislation enacted by parliament.

The prerogative of the government to accede to treaties is of no effect in English domestic law unless and until Parliament legislates to give substance to the rights and obligations created by the specific treaty. Equally, the unmaking of a treaty can have no effect on existing rights and duties created by Parliamentary enactment.

This thesis might offer some hint as to the nature of any future appeal by the Crown. The Court was persuaded that the withdrawal by the Crown would unconstitutionally erode rights previously enacted by Parliament. Might it not be posited too that the Crown’s prerogative power is not to be constrained by Parliament, which operates in a distinct sphere, so that its exercise by the Crown should have no effect whatsoever on individual rights and duties already accrued under existing legislation?

An intriguing constitutional issue.

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31 Comments on “The Separation of Powers”

  1. David November 13, 2016 at 3:22 PM #

    This blog was retweeted by Live EU Debate Twitter feed.

    Like

  2. Vincent Haynes November 13, 2016 at 4:28 PM #

    David

    Can the will of the people be interpreted from a less than 50% plus 1 of the electorate vote on the issue?The turn out was 72.2% of which 51.9%Leave and 48.1%Remain.

    Like

  3. David November 13, 2016 at 4:39 PM #

    @Vincent

    Referendum is a tool to be found in the democracy. You respect is for what it is meant to achieve. If there is voter apathy at election time obviously it will manifest at the time referenda is undertaken?

    Like

  4. David November 13, 2016 at 4:49 PM #

    @Vincent

    Bear in mind what the ruling of the court is meant to clarify.

    Like

  5. millertheanunnaki November 13, 2016 at 4:59 PM #

    @ David November 13, 2016 at 4:39 PM
    “Referendum is a tool to be found in the democracy.”

    The decision by the UK Courts has serious implications for any proposal to turn Barbados into a republic.

    One way or the other this decision must be confronted in the very near future; possibly sometime during the 2017-2018 period of transition.

    Would there be a need for a referendum unless the ruling administration does not have a two-thirds majority in the Lower House?

    What happens when there is a King Charles or King William? Does Barbados carry on smartly as if nothing has changed, Crown and all?

    Like

  6. nineofnine November 13, 2016 at 5:14 PM #

    POLICIES and CONTRACTS… THE NEW REVOLUTION.

    POLICY: A course of action adopted by a Government, Party, Commercial Entitity or person.

    CONTRACT: A written or spoken agreement.
    WRITTEN.. A written document conveying ALL relevant and TRUE information AND ratified by signatures of BOTH PARTIES named in the document.
    SPOKEN… An agreement made by affirmation to or to give consent to, of or an approval granted.

    There is much fustration, concern and debate currently of the state of affairs in Barbados.
    Areas that are having much impact are those of Water resourse and Management, Sanitation, Health, The Economy,Education,
    Housing, Roads, Banking, Insurance, Unions and Credit Unions and Taxation to name a few.
    All these issues are ROOTED in POLICY and CONTRACT and the non-inclusive mentality.

    MODUS OPERANDI

    GOVERNMENT is controlled by its CONSTITUTION, by TREATIES, MEMORANDUMS of UNDERSTANDING (MOUs), PROTOCOLS of global agencies etc. and by
    the ACTS/LAWS of the land. It exercises control by way of these ACTS/laws, regulations and codes. Being a signatory to
    the (“Global/International Document”), the Government has to abide by the agreement of “contract”. Any good political intent may
    very well be thwarted if the content of a proposed global/International contract superceeds that of local political/electorate wishes/intent AND forfeits
    possession of sound governance, control and mandate.

    POLICY:
    The aims and objectives of Policy must be coherent to the betterment of a PEOPLE, PLACE, PERSON or THING. Of SITUATIONS and CIRCUMSTANCES.
    A formulated and plausable idea by construct, as a means to an end, accomplishing an objective. POLICY IS STRUCTURED from a collective consensus agreed upon by
    those that will benefit from such an exercise. They are those, (unscrupulous persons) who seek self benefit (service to self ), by initiating policy by
    stealth, with no real benefit only to those who implement them.

    CONTRACT:
    By agreement of parties involved, when constructed without consensus, it carries the root cause of problems being experience by the citizenry/persons it effects.
    CONTRACTS not written in the correct QUANTUM PARSE SYNTAX GRAMMER is deemed NO CONTRACT, it is illusional, written in fiction, written in adverb verb, and
    does not adhere to THE MATHS INTERFACE OF LANGUAGE.
    Whether the origin is Global, International or local, be it contructed for contractual business, if it resides in verb adverb language it is ficticious in nature.
    ALL QCs, lawywers, Attorneys, Solicitors and Judges have been trained in Verb Adverb language (THE LAW OF THE LAND) AND WILL BE REQUIRED TO BE RETRAINED IN Q.P.S.G..
    It is a diffrent “kettle of fish” in MARITIME/ADMIRALTY LAW. FOR THE CLAIM of THE CORRECT SENTENCE STRUCTURE OF QUANTUM PARSE SYNTAX GRAMMER (PREPOSITIONAL PHRASES = FACT) as
    the maths interface, the illusions and falsity of contract can be easily deciphered and debunked, making it null and void.

    WHAT ARE THE SOLUTIONS TO THE ISSUES AT HAND?

    POLICIES AND CONTRACTS must be revisited for authenticity. Must be revisited for “value of intent”, For the correctness of grammer structure, intent and purpose.
    No Contract is binding that is full of illusion and fiction. The REBUTTAL OF CONTRACT IF PROVEN NECESSARY.
    Contract is TRUE only when written in the correct structure of QUANTUM PARSE SYNTAX GRAMMER, HAVING FULL UNDERSTANDING of the conveyance of
    ALL information (true and not misleading) BEING FACTUAL, of statements and of clauses, must be disclosed and explained, having signatures of
    BOTH parties to the contract, having the correct postal stamps affixed, and hard copies in possession of BOTH Signatories.
    Any witnesses to contract must be present at signing.
    If the representative of a nation/country/state/party/constituency/business/group/classs or otherwise does not inform or duly
    NOTIFY ITS MEMBERS OF THE CONTENTS of a proposed contractual agreement WITHOUT CONCENSUS BEFORE signing a contract, makes it null and void.
    DIALOG, CONSULTATION via concensus be it by townhall meetings, vote or the like must PRECEDE the ratification of any contract.

    http://www.nation.co.ke/news/Activists-want-Sh68b-water-contract-stopped/1056-3419818-ajp8da/index.html

    SPECIAL NOTE:
    THE POWER OF A CLASS ACTION LAWSUIT. (edited)
    “the only thing necessary for the triumph of evil is for good men to do nothing”

    GOVERNMENTS, CORPORATIONS and INDIVIDUALS fear the onslaught of a CLASS ACTION LAWSUIT.
    For those who are suffering, being defrauded, being manipulated and being duped by extortion,
    by means of POLICIES and”CONTRACTS” of stealth, use of “law, regulations and codes, can SEEK RECOURSE that are of…

    FALSE and MISLEADING INFORMATION, via contracts, advertising, misleading statements.
    FALSE and FICTICIOUS CONVEYANCE OF GRAMMER as an illusion, written in adverb verb.
    DEPRIVATION OF RIGHTS under the coloring of law.
    CONDUCTING CRIMINAL ACTIVITY HAVING KNOWLEDGE OF and making no effort to modify or disclose.
    FOR THE REFUSAL or DELAY OF THE EQUAL PROTECTION OF THE LAW.
    FOR NOT CONVEYING LEGAL DOCUMENTS in the correct sentence structure of the Quantum Parse Syntax Grammar.
    JUDGEMENTS made by impersonators. PERJURY (having knowledge of a fact but tells a lie TO TWIST IT).
    MISAPPROPIATION. Failing to carry out ones’ legal duties.. monetizing by enrichment, other than that intended.
    MAIL FRAUD by non affixing or photocopying of stamps and issuing supposedly LEGAL documents without endorsement of stamps.
    MISREPRESENTATION. (ANYTHING within a box cannot be considered).
    10.UNILATERAL CONTRACTS (Contracts with one signature, not signed by the other party).

    BY ESTABLISHING THE FACTS and LAW by protocol, BEING THE VESSLE in dry dock in Maritime/Admiralty LAW
    declaring the illusions of MISDEEDS and FICTION. NO LAW OR FACT SHALL BE ARGUED IN COURT.
    Compensation will be rewarded to the collective or group in the CLASS ACTION LAWSUIT.

    CLASS ACTION LAWSUITS provides claims for the recourse OF INJURY and it is available to groups of consumers whose
    suffering can be attributed to a common cause. It also establishes protection of groups.
    On winning a C.A.L, each member is awarded the same amount.
    As in the USA, the penalty/fine is US$25 000 000 or 30 years imprisonment per each breach of established Law.
    For the reward of the CLASS ACTION LAWSUIT each member will receive USA$25 000 000.00
    ……………………………………..
    A group can be the citizenry of a country, a consumer body, a corporate or otherwise workforce, a membership,
    persons coming together with the experience of like injustices, CLIENTS… etc.
    ……………………………………..
    A legal representative versed in Quantum Parse Syntax Grammar is highly recommended.

    SUBJECT TO CLASS ACTION LAWSUITS.

    CORRUPT IRREGULARITIES in Legal documents NOT ADHERENT TO the LAW of fact.
    MORTGAGES with false and fictitious conveyances of Language, GRAMMER, statements.
    UNILATERAL CONTRACTS (loans or any contractual agreement) with the non issue of hard copies, without the lenders signature and stamps.
    INAPPROPRIATE BILLINGS (STATEMENTS) must be examined and verified for legality (must carry a printed serial number IN RED).
    STATEMENTS BEING ISSUED for the collection of monies. STATEMENTS ARE NOT INVOICES.
    ILLUSIONAL CONVEYANCES/FICTION of product safety via false advertising of goods and services.
    EMPLOYERS who willfully flout the Law in regards to discrimination and employees RIGHTS.
    BUSINESS ENTITIES which charge excessive interest rates, fees and penalties (ENGINEERING DUE DATE for late payments fees etc.,.).
    for which NO GENUINE/TANGIBLE GOODS or SERVICES has been rendered.
    9 FOR CLAIMS of public and private nuisance, trespass, negligence, injury, unjust enrichment, fraudulent
    misrepresentation, misappropriation and civil conspiracy BY THOSE WHO WOULD COHERSE FOR ENRICHMENT.
    FORENSIC INVESTIGATION, following the money trail as well as credible evidence can produce sound STANDING.

    http://www.nation.co.ke/news/Activists-want-Sh68b-water-contract-stopped/1056-3419818-ajp8da/index.html

    :Temple-Builder-Of-Gaia:Light

    Like

  7. Violet C Beckles November 13, 2016 at 6:19 PM #

    nineofnine November 13, 2016 at 5:14 PM #

    POLICIES and CONTRACTS… THE NEW REVOLUTION.@

    Moor, these crooks dont know whats is GRAMMAR in law nor use it in Barbados,
    I see you , we know the 9 ,

    Maybe this will wake up the crook lawyers and the government of the DBLP government . If you are Bajan you are welcome to join the CUP .
    https://www.facebook.com/alexmitchell.el/activity/comments/

    Like

  8. David November 15, 2016 at 5:16 AM #

    WTO: G20 Trade Restrictions remain high, despite slowdown in new measures

    by caribbeantradelaw

    Alicia Nicholls Despite a slowdown in new measures, existing trade restrictions among the G20 countries remain high. This is according to the World Trade Organisation’s (WTO) latest Report on G2o Trade Measures (mid-May 2016 to mid-October 2016) released November 10, 2016. Some of the key findings of the sixteenth edition of this Report are as follows: […]

    Read more of this post

    Like

  9. lemuel November 15, 2016 at 6:39 AM #

    I really have a difficulty with the british courts. How could you go far and wide spreading your “bulling”, gospel and seeds of “democracy and then allow or instigate four or five people to sit in panel and overturn the “will of the people”. It would seem to me that this will of the people is only relative to whom it benefits and has no criterion to seek truth or justice. For Trump the “wrong people” spoke. For Hilary a win would have been the “will of the people”.

    Like

  10. David November 15, 2016 at 6:51 AM #

    Exactly, many struggle with the opposing positions. The will of people being stymied by the process of the courts -an organ established to serve the people.

    Like

  11. Vincent Haynes November 15, 2016 at 8:07 AM #

    David

    You and others keep talking about the will of the people……you mean the wishes of a minority of the population as the figures show.

    Like

  12. David November 15, 2016 at 8:20 AM #

    @Vincent

    Do you have other ways a democratic government is able to measure the pulse of the people? Will any system be perfect?

    Like

  13. Bush Tea November 15, 2016 at 8:42 AM #

    Steupsss
    The Court made the correct and only possible logical decision.

    What will of what people what…
    The foolish people do not even know what they voted for… most voted to keep foreigners from taking away their jobs and from enjoying the benefits of their dole…. FULL STOP. The yhave NO IDEA of the consequences.

    There is NO serious organisation anywhere, where operational decisions are taken by the broad membership.
    Who would sign off on the agreement?
    Who would take the fall if shit hits the fan?
    Who would decide WHICH matters went to referendum? …and which did not?

    The people get to chose their representative leaders, and THEY are the ones with the responsibility to make decisions and bear the consequences.
    If they get out of step with the people , then they can be called to resign (or led to the guillotine) and let a more ‘aligned’ set of leaders be elected….

    Micro-managing by mobs only works for lynchings….

    Like

  14. de pedantic Dribbler November 15, 2016 at 9:02 AM #

    Why do we establish the rules of engagement and then find fault with the process when the score goes against us?

    The rules of the societal game of which the Brits and Bajans accepted advises that the Court of Law is there to finesse and regulate the ‘will of the people’ by interpreting the laws and codes of that society. What exactly has the British Courts done other than interpret the frigging rules!

    How have the courts stymied or otherwise stopped the will of the people other than advise that a final decision must be ratified by the Parliament (which the will of the people also elected) and NOT the PM and her government.

    Let’s address the rules and laws and not emotive stuff.

    Incidentally, the wrong people didn’t elect Trump and certainly nor would have the will of the people won the day had Clinton won the Electoral college. The US is as divided as Britain was and the elections were won based on the rules agreed upon…no more no less.

    In the US a popular vote plurality does not matter in Presidential elections so that is just hogwash at this point.

    And @Vincent, when you find a model – other than forced voted a la communist rule – that can validate a democratic election by means other then a majority of people WHO voted please come back and advise.

    Until then I am unclear of what solid real word purpose you continue to assert that low voter turnout should not be accepted as the ‘will of the people’.

    As far as I am aware a non-vote is also a firm assertion of one’s rights…a valid exercise of free will, senor!

    Do you want an Obama style ACA rule of a penalty levied on those who do not purchase insurance extended to voting as well. Would even that ensure nearly full voter turnout!

    Like

  15. de pedantic Dribbler November 15, 2016 at 9:04 AM #

    Ahh Mr Bushtea I gotta refresh before I post…flowing after you with the same diatribes is not good blogging…LOLLLL!

    Like

  16. David November 15, 2016 at 9:25 AM #

    @Dee Word

    Let’s address the rules and laws and not emotive stuff.”

    Are existing laws written in stone? What informs how they are amended again?

    Like

  17. Vincent Haynes November 15, 2016 at 10:03 AM #

    David and dpD

    All over the Democratic world substantial change is normally decided by 50 plus 1,2/3 majority or 60%.

    Arrogance possesed Cameron to go for a simple majority and I reiterate that that is not the will of the people however you pars and slice it.

    Like

  18. David November 15, 2016 at 11:00 AM #

    @Vincent

    Arrogance is how Wickham and VoB dealt with the caller left brain this morning.

    Like

  19. Vincent Haynes November 15, 2016 at 11:14 AM #

    David

    Chuckle…..I agree with Peter and note he gave him a lot of lee way to state his case.

    Like

  20. David November 15, 2016 at 11:19 AM #

    No he didn’t Vincent, he browbeat him and did not respect his right to offer a comment that is not aligned with his personal view.

    Like

  21. Vincent Haynes November 15, 2016 at 11:24 AM #

    David

    When he calls Peter he only has one agenda,he should have made his substantive point first and then head down the homophobic road.

    Like

  22. David November 15, 2016 at 11:56 AM #

    @Vincent

    He is entitled to make his point without being railroaded. Why must Wickham be allowed to use VOB as a bully pulpit without challenge?

    Like

  23. Bush Tea November 15, 2016 at 12:13 PM #

    @ David
    Why must Wickham be allowed to use VOB as a bully pulpit without challenge?
    +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
    Wickham’s agenda dovetails nicely with that of VOB /OCM.
    The ultimate down fall of Barbados as we knew it, and the establishment of a regional bulling centre….

    Like

  24. Vincent Haynes November 15, 2016 at 12:15 PM #

    David

    He is challenged all the time on that programme…..kudoes to him for staying the course.

    Like

  25. David November 15, 2016 at 12:20 PM #

    @Vincent

    We will disagree on this matter. He had no right treating him with the kind of disrespect he was allowed to by the producer. Less brain and so on. He should copy Johnson by taking some time to allow him to make his point. It reminded the BU household why the BU household fired up BU going back to Loveridge and Lynch in 2007.

    Like

  26. Vincent Haynes November 15, 2016 at 12:30 PM #

    David

    We shall agree to disagree…..I recall when Johnson had his problem with the cement man who would call just to insult him and his answer to that was total silence….left brain does the same thing and Wickhams answer is to challenge him…..to each their own.

    Like

  27. David November 15, 2016 at 12:32 PM #

    We agree because Johnson allowed Cement Man to make his points, cannot say the same about Wickham.

    Like

  28. nineofnine November 15, 2016 at 9:38 PM #

    FOR THE CLAIM OF RECOURSE IN THE COURT OF LAW.
    NO FACT OR LAW SHALL BE ARGUED IN A COURT OF LAW, therefore state the facts, the law and THE PENALTIES and the “will of the people” triumphs.
    Know how Courts function, their purpose and ways of exploit. STAND ON FACTS, demand Oaths of Office, Identify Planes and
    signatories of “tendered Documents”, establish the trustee of the Court and make demands.
    …”Do you have other ways a democratic government is able to measure the pulse of the people? Will any system be perfect?”…
    DIALOG, CONSULTATION via concensus be it by townhall meetings, by electronic/cellphone vote or listening to
    the voice/views of the people via talk shows and the like must PRECEDE the ratification of any contract by any representative.
    ANY SYSTEM CAN BE MADE PERFECT BY TWEEKING IT.
    “….The people get to chose their representative leaders, and THEY are the ones with the responsibility to make decisions and
    bear the consequences. If they get out of step with the people , then they can be called to resign (or led to the guillotine) and
    let a more ‘aligned’ set of leaders be elected….”
    …”and THEY are the ones with the responsibility to make decisions”…. This is a FALSE STATEMENT…
    NO the representative DOES NOT have the responsibility to make ANY DECISION on his own, He is empowered by the group to
    CARRY OUT the WISHES/DECISIONS of that group. ANY OTHER ACTION IS CRIMINAL.
    “Drain the Swamp” is a cry of the voices saying enough is enough.
    ONE MAY THINK THAT “PEOPLE FOOLISH”.. really now, PEOPLE ARE NOT SHEEPLE..having left 3D in 4TH density and arrived in 5D, awakened and ascended, well my friends
    if you think that you can carry on “business as usual”, then prepare for a very rude awakening, all that is Linear is collapsing…we have arrived.

    5.The USA Inc is on its way out, the new REPUBLIC Of THE UNITED STATES OF AMERICA stands in the wing.
    A President is defined as a Head of a Republic State. Do you yet see the Fraud.
    Majority vote is conclusive no matter what other “determinations” (false) are put foward.
    Are you yet to understand the roll played by Main Stream Media on the collective consciousness of the electorate?
    We may even see a resignation fron the Trump to facilitate the NEW REPUBLIC…. AFTER He fulfils his mission of which mankind is to greatly benefit.

    Like

  29. Colonel Buggy November 15, 2016 at 10:42 PM #

    Today we read that Minister Michael Lashley on an “undercover ” visit to the River bus stand, observed a PSV driver drinking and smoking weed ,just before he jumped into a public service vehicle and drove it away , packed with passengers . Also a school boy in uniform was observed smoking weed.
    After the last general election, a statement was made by both the Prime Minister and the Attorney-General, that they had observed people buying votes.
    Isn’t it about time that we give serving Members of Parliament the Powers of Arrest.

    Like

  30. lemuel November 15, 2016 at 10:53 PM #

    Bushie:

    Stop spitting up in the air!! When collectively people vote or select or designate a person or people to undertake various responsibilities, they are carrying out the people’s will or the mandate that was agreed on. This is why we have these surrogates called politicians and technical personnel like yourself, Bushie. But that has been abused and misused time and time again by the political class who feel like Mottley that they have a right to do any “shit’ they want to do when the power is devolved unto them!!!

    Like

  31. Victor November 19, 2016 at 12:14 PM #

    it’s so funny to imagine a Bajan going to vote! As if there was anything to vote FOR or AGAINST!
    In the Western world people actually think about politics, whereas here political thought does not go beyond the shop.
    For good or ill, Trump and Brexit results demonstrate a feisty electorate.
    Come on Barbados! Voters stand up and be counted.

    Like

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