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Thread: BREXIT - Merged thread.

  1. #2191
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    Dr. Gunnar Beck sounds like an academic to me. Shouldn't you be engaging in howls of derision, not quoting him, John?

    By the way, any Lawyer not engaged in spinning 'for Britain' would tell you that all laws rely upon interpretation in their application, and this is one of the things that judges do.
    Last edited by Beermat; 11th May 2017 at 15:55.

  2. #2192
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    Is he not one of those nasty foreign types too?

  3. #2193
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    "like an academic to me"

    Neither of you qualify - that's for sure !

  4. #2194
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    JG your rapid retorts do bring a smile to my face....

    .... a little too quick to jump to an (incorrect) conclusion there though....

  5. #2195
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    Quote Originally Posted by John Green
    I've just received an e-mail from Lawyers for Britain,. The content of the e-mail is a report titled: "The European Court of Justice is not an impartial court and has no role to play in post Brexit". I've asked Lawyers for Britain for their permission to further quote.

    The author of this report is a Dr. Gunnar Beck, Reader in Law at London University. Without breaching copyright, here is a tasty little morsel:

    The ECJ in their deliberations employ a useful little device called 'purposive interpretations'. These are legal artifices designed to enable far ranging interpretations of ECJ judgments than text based interpretation.

    This obscure practice enables lots of 'wriggle room'. Interpretation becomes a matter of perspective and, interestingly enough, the ECJ is not bound by the principles of treaty interpretation laid down in the Vienna Convention on the Law of Treaties.

    I've often hinted, but Is it really possible that the imaginative and entertaining works of Lewis Carroll have had some imput into the construction of the EU ?
    Which basically means that any judgement passed by the ECJ on the Brexit bill will be null and void.

    Quote Originally Posted by Beermat
    Dr. Gunnar Beck sounds like an academic to me. Shouldn't you be engaging in howls of derision, not quoting him, John?

    By the way, any Lawyer not engaged in spinning 'for Britain' would tell you that all laws rely upon interpretation in their application, and this one of the things that judges do.
    Yes but the kind of interpretation being used allows for wide-ranging guesses at the purpose of the legislation rather than what the actual words say, which is very dangerous.

    http://e-lawresources.co.uk/Purposive-approach.php

    Disadvantages of the purposive approach

    Judges are given too much power to develop the law and usurping the power of Parliament
    Judges become law makers infringing the Separation of Powers (Montesquieu)
    There is scope for judicial bias in deciding what Parliament intended
    It assumes Parliament has one intention and ignores the fact that Parliament is divided on party lines
    Allowing reference to Hansard may lead to prolonged examination of irrelevant material by lawyers which adds to the cost and length of litigation (See Lord Mackay in Pepper v Hart)
    I would add that capriciousness is a real danger here too. For instance, a purposive approach to tax law could basically lead to interpreting all tax avoidance as fraud, simply on the basis that the purpose of the law is to prevent people dodging tax, whereby avoidance could be deemed simply another way of doing just that.
    Last edited by Ryan; 11th May 2017 at 14:05.

  6. #2196
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    Yes, that is the situation in UK Tax Law too. Should a tax issue 'go legal' nine times out of ten it is down to interpretation of the law, with the defence trying to explain in qualitative terms why the law does not apply in this particular method of avoidance as the purpose of the law is elsewhere.

    There is a word for this kind of defence - I forget it now. But my point is that the purpose of any law is moot and completely arguable in court.
    Last edited by Beermat; 11th May 2017 at 15:54.

  7. #2197
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    That's nonsense. It isn't arguable anywhere. The whole point of purposive argument is its ability to change direction and thereby negate or nullify each counter. That is why it was designed and taken up by the EU. It is admirably suited to their brand of political and legal chicanery.

    I can see Labour adopting this.

  8. #2198
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    Yes, that is the situation in UK Tax Law too. Should a tax issue 'go legal' nine times out of ten it is down to interpretation of the law, with the defence trying to explain in qualitative terms why the law does not apply in this particular method of avoidance as the purpose of the law is elsewhere.

    There is a word for this kind of defence - I forget it now. But my point is that the purpose of any law is moot and completely arguable in court.
    But there's no capacity to have such a defence with a purposive approach, because a defence would normally be based on the wording of the law, whereas a purposive interpretation allows the law to be interpreted well beyond the actual words, simply based on an assumed purpose, even though such laws are often passed by split parliaments of several hundred people, who perhaps all had different assumptions about the purpose.

    The whole 'ignorance is no excuse in the eyes of the law' thing breaks down if people are expected to have an awareness of the law that extends beyond the black and white to assumptions, that could one day be made, about the quasi-averaged intentions of several hundred people made by a third party.
    Last edited by Ryan; 11th May 2017 at 18:57.

  9. #2199
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    I've had confirmation of the permission of the author Dr. Gunnar Beck to quote all or part of his recent report. Dr. Beck begins his report by stating that there is no legal obligation on the part of GB to pay any money at all to the EU for what ever pretext put forward by the EU.

    Quote: "As a matter of EU law, Article 50 TEU is clear in that it allows GB to exit from the EU without being liable for outstanding financial obligations under the EU budget unless a withdrawal agreement is concluded which provides otherwise. This position enjoys wide support and has been endorsed inter alia in a special report".

  10. #2200
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    100% true.

    http://www.lisbon-treaty.org/wcm/the...rticle-50.html

    3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
    All payments are a part of that Treaty, hence when treaty ceases to apply, payment obligations also end, unless there are outstanding payments due for the period before the treaty ceased to apply, as per the Vienna Convention Article 71.2(b). So if we'd hadn't paid the fee for 2018, come March 2019, we would still be legally obliged to pay it.
    Last edited by Ryan; 12th May 2017 at 13:29.

  11. #2201
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    "That's nonsense. It isn't arguable anywhere... That is why it was designed and taken up by the EU. It is admirably suited to their brand of political and legal chicanery... I can see Labor adopting this

    It already exists in UK law, John. Nonsense or not. it is called the 'Purposive approach', it is a controversial principle of law and its not something a political party 'adopts'. It was first introduced Pepper v. Hart, 1993 - and not by the EU.

    It would be easy for someone who didn't know your history to believe you know an awful lot.
    Last edited by Beermat; 12th May 2017 at 15:02.
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    It's all good. Probably.

  12. #2202
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    That's a very gracious compliment for which I thank you ! Yes, I've lived a long time so I do 'know an awful lot'.

  13. #2203
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    So what you have are then two contradictory cases, Pepper vs Hart - a trivial matter on whether a teacher should pay tax on the perk of reduced school fees-, and Davis vs Johnson - a matter concerning domestic violence -. On the more serious matter, purposive interpretation was refused. The Pepper vs Hart case also post-dates joining the EU (1992), so this was effectively the ECJ taking effect, because judges knew the matter could be appealed successfully at the ECJ. Also, one person's statement on purpose in Hansard does not a purpose make.

  14. #2204
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    All true - except the bit about this effectively being the ECJ taking effect. No court will consider what might happen in another, or where an appeal might go. And that's all it would be - an appeal to another court that also might look at purpose.

    Also the EU was formed in 1993, Pepper v. Hart was 1992 - before the treaty of Maastricht came into force, long before the Treaty of Amsterdam which really did make the European Court able to hear referrals (not appeals) on civil matters and at a time when it was simply the European Economic Community. The hypothetical principle of purpose in law existed long before any of this, and in fact goes back in various incarnations to the Greeks.

    Now, whether one person's statement in Hansard does or doesn't a purpose make is precisely what a judge who is prepared to accept a purpose argument would then decide.

    I was just defending myself against accusations of nonsense.

    Ryan, are you in the legal profession? I have been quite rude to you and you have always responded calmly and logically..
    Last edited by Beermat; 12th May 2017 at 18:16.
    www.whirlwindfighterproject.org
    It's all good. Probably.

  15. #2205
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    I disagree. Since being bound by EU law, UK courts must consider that law, which includes considering the ECJ.

    True, but it had already been signed before Pepper vs Hart (7th Feb vs 26th Nov), so at that point they knew that it would be effective, so it's likely that they were considering the imminent future and the statements made also indicate such.

    "The days have passed when the courts adopted a literal approach. The courts use a purposive approach, which seeks to give effect to the purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted."
    Now if we break down the above statement, the first four words are clearly rubbish given that he's setting a precedent right there and then. So where else is the driver coming from other than our beloved ECJ?

    No, not in the legal profession. I tend to try and ignore emotive content on the internet, though not always successively it must be admitted.
    Last edited by Ryan; 13th May 2017 at 08:51.

  16. #2206
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    'Where else is the driver'? OK, I had to ask my mum (!) but then she is a lawyer.. there was a English Law Commission report in1969 that recommended it.

    A judge being prepared to look at extraneous evidence as to the purpose of an Act is all that it means. It is not some evil foreign plot.

    Also, there is something about retrospectivity which means an awareness of how the legal situation might change will not have any effect upon a judgement.

    It's all a bit 'reds under the bed' really. It has been used in the same way by ukip, and is being by the current administration who are inheriting their vote (or trying to). History will look back and facepalm.
    Last edited by Beermat; 13th May 2017 at 09:26.

  17. #2207
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    Yes, but there's also the Davis vs Johnson case in 1978 that completely stamps on that recommendation and no instance of purposive interpretation for another 14 years, until Lord Griffiths begins, "The days have passed when courts could take a literal approach." Now use of the word 'could' indicates that they are no longer able and this statement occurs 9 months after the Maastricht Treaty is signed. And it should be noted that this was a very delicate tax matter, i.e. what is considered a perk and what isn't for purposes of tax and it's probably unreasonable to list everything with either a yes and a no, so referring to Hansard was probably somewhat logical here especially given that it went in favour of the defendant. However, would it be reasonable to send someone to prison based on Hansard, or make them pay a large fine? Hint: Helps to put yourself in the position of the accused here.

    Nobody said it was a plot, but legislation is written for the common man and the common man does not refer to Hansard when reading the law, they see only the words on the page.

    In this case it wasn't a situation that 'might' change because the Treaty had been signed. Hence it was a situation that would change. Whether this affected his judgement we'll never know, but the opening statement, "The time has passed...." is a bit ominous given that he's setting a precedent. When did this time pass exactly? Just now?

  18. #2208
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    'Would change' does not alter the fact that any law that applied after the change could not be applied retrospectively.

    And the days had indeed passed when the literal approach could be taken in undiluted form - they passed in the 19th Century after a few notorious cases of the letter of the law being used to both prosecute and defend based upon tenuous literal interpretations - like the famous one about 'not impersonating any living person' meaning a conman got away with assuming the identity of a dead person. The pressure had grown for non-literal interpretations to happen at the discretion of judges, and in this case Hansard is just a source of evidence to support a non-literal interpretation. It has nothing to do with whether an individual has read Hansard or not.

    Legislation is written for legislators, sadly. Hence all the Latin.

    That 'ignorance of the law is no defence' is principally at odds with the law being drafted in an arcane manner has been a problem for centuries. Ironically this has leant weight to the 'interpretation by the court' argument, as at least the meaning could be thrashed out in plain language.
    Last edited by Beermat; 13th May 2017 at 16:30.

  19. #2209
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    You may wish to review that first claim. With respect to criminal acts it is mostly true, but with respect to civil matters, like whether perks are taxable, restrospective law would most certainly apply, especially if it is seen to modify the proceedings by which the matter was dealt with.

    http://legal-dictionary.thefreedicti.../retrospective

    And yet in 1978 (Davis vs Johnson) it still held firm.

    http://www.e-lawresources.co.uk/Davis-v-Johnson.php

    What you have in the case you mentioned is a very badly written law, very much like the 'stand your ground' in the US. Now if one was to refer to what was said in the passing of that law, the Zimmerman trial would have gone very differently. Perhaps rightly so in that case, but the procedure is hit-and-miss.

    Not really, I can understand it perfectly, politicians on the other hand.....

  20. #2210
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    That's US law, and even then I am interpreting it differently. "Laws should never be considered as applying to cases which arose previously to their passage, unless the legislature have clearly declared such to be their intention" says to me that retrospective law by default cannot apply. But as I say, best find an English equivalent. I am confident you will find that in civil law as in criminal you can not legislate retrospectively. Imagine the situation if you could - a government deciding that actually the speed limit on a motorway is 50mph and fining everyone who's done more than that last year. It is a nonsense, and it cannot apply.
    Last edited by Beermat; 13th May 2017 at 21:38.

  21. #2211
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    Nothing can be deemed newly illegal retrospectively but the manner by which proceedings were conducted can certainly be modified if to correct a defect. And not considering Hansard would be considered a defect by the ECJ.

    researchbriefings.files.parliament.uk/documents/SN06454/SN06454.pdf

    Legislation that operates on matters taking place before its enactment, e.g. by
    penalizing conduct that was lawful when it occurred. There is a presumption that
    statutes are not intended to have retroactive effect unless they merely change legal
    procedure.
    Not an accurate equivalence. The speed limit cannot be changed retrospectively but the manner in which people are tried for a speeding offence could be modified.

  22. #2212
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    A question of interpretation. I take that as meaning a change of procedure in the court in which it is being heard that may have happened between the act and the trial.

    If this has always been the ECJ aporoach there has been no retrospective change in procedure, just a different court where a purposive approach applies looking to adjudicate retrospectively - ie on a case where the acts in question happened at a time that that court had no juristriction.

    Are you suggesting that an English court would look forward in time and presume - ahead of any proceedings or judgement - that the case that by then would have already been adjudicated on would be referred, by virtue of the as-yet-unknown outcome, by the UK to the ECJ so that it would hear an appeal using law applied retrospectively by a court that had no juristriction at the time of the acts in question or during the first proceedings and judgement, and based on a purposive argument? And it would thus hear it with a purposive approach to head that somewhat unlikely chain of events off?

    Tenuous, wouldn't you say?

  23. #2213
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    And that's exactly what it does mean. So if the court didn't consider Hansard and purposive interpretation, then the ECJ could hear an appeal.

    Given that the Maastricht Treaty had already been signed, they may well have. This would certainly fall under the remit of something that could be considered retrospectively and the timing is certainly suspect, that it happens after Maastricht was signed, not before.

  24. #2214
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    Do you want to borrow my tinfoil hat?

  25. #2215
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    "And not considering Hansard would be considered a defect by the ECJ."

    No it wouldn't, the ECJ would not consider Hansard at all. The ECJ, contrary to what some people seem to believe, is not the supreme court on anything other than EU law. Acts of Parliament and what Hansard might say is irrelevant to the ECJ except to the extent that they implement EU law because that is the only law that the ECJ can give a view on. If the Act is implementing an EU law, then the ECJ will go back to original EU directive or whatever and the reason why that was implemented, not Hansard.

    Using tax cases to criticise purposive interpretation rather misses the point. The cases are largely not about some poor individual who has been caught out by a different interpretation of the law, they are about highly contrived schemes involving large amounts of money put together by accountants which exploit technical defects in the wording of legislation and where the purpose of the law is blindingly obvious.

    Purposive interpretation is I believe fairly common in European legal systems generally. Arguably it makes law easier to understand as it can make law considerably shorter if you do not have to try to cover every possible situation, but that has never been the English way. The problem with the ECJ, I suggest, is not purposive interpretation as such, but the purpose itself - namely that it says in some treaty that the purpose of the EU is "an ever-closer union" and therefore the ECJ can interpret in the light of that purpose.

    Paul

  26. #2216
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    Considering the harmonisation of tax laws across the EU would certainly be part of the ECJ. And it considers a purposive interpretation of legislation.

    http://ec.europa.eu/taxation_customs...ce-case-law_en

    http://www.telegraph.co.uk/news/2016...part-our-laws/

    Also:

    http://www.telegraph.co.uk/expat/exp...and-fight.html

    British couple lose north Cyprus land fight
    Last edited by Ryan; 16th May 2017 at 18:12.

  27. #2217
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    Able to consider a purposive argument in the application of its own laws, tax or otherwise.

    But, as vildebeeste pointed out, not even remotely able to retrospectively consider the application of non-EU law by a court, never mind whether or not that court took the purposive route.
    Last edited by Beermat; 16th May 2017 at 18:45.

  28. #2218
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    A classic Torygraph article. Well written tosh.
    'Unwittingly'? How witless would you have to be to buy land in Northern Cyprus without checking who it really belonged to?

    No matter how much that appalling bum-wipe of a paper tries to spin it to be about filthy foreigners, this was a decision on an international issue by an international court, and personally it looks like a good one. Not sure how it's relevant.
    Last edited by Beermat; 16th May 2017 at 19:49.

  29. #2219
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    The ECJ also hears cases based on employment law, which would be relevant in this case, since it pertains to a right to use a job-related perk without being taxed.

    http://www.personneltoday.com/hr/bre...shaped-uk-law/
    http://www.bloomsburyprofessional.co...9781841132334/
    https://www.theguardian.com/law/2017...an-court-rules
    http://www.telegraph.co.uk/news/news...k-is-work.html

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