Thursday, 3 November 2016

The UK is not a democracy

A clickbait headline to hopefully boost the C@W coffers but a serious point. The High Court's decision that an invocation of Article 50 needs parliamentary approval should not come as a surprise. 

After all, the UK has a constitution, and in its simplest form our comstitution is that what Parliament says, goes. Not the government, not the people.

The mistake arises from the point that the legislation setting up the EU referendum did not say what would happen if Leave won. Fairly obviously, had Remain won then nothing would have changed and we would have carried on as if nothing had happened. But Parliament did not agree what the process would be in the event of a Leave vote. Parliament could have set this out but chose not to, for whatever reason. We don't have a general rule that a referendum trumps Parliament, although of course Parliament could introduce one if it wanted to. 

The point about a parliamentary system is that only Parliament can overturn legislation enacted by Parliament; and our membership of the EU and the enforcement of EU law and procedures derives from UK legislation. 

If the government was allowed to invoke Article 50 we might easily be in the absurd position that according to the treaties we had left but according to Parliament we were still a member, meaning that we still used EU law in our courts (where relevant) even though we no longer were invited to council meetings or European Parliamentary sessions. 

Lots of people are saying "how dare the courts overturn the will of the people?!" but that is nonsense. The court is simply re-stating the obvious: that the leaving process must have a real legal basis.

It is now for Parliament to do its bit. Its options seem to be:

- pass a quick Bill giving the PM the power to invoke Article 50
- pass a complicated Bill invoking or allowing the PM to invoke, and setting out the consequences of leaving (by way of the proposed Great Repeal Bill, for example)
- to not pass anything and create a crisis, or force an early general election.

The government may quite like an election to be forced on it, as I have speculated before. How would Labour fare when half of its candidates represent areas which voted to leave but who have campaigned against the views of those areas? What would Jezza put in his manifesto on the issue? Would the pro-Remain parties field unitary candidates to try to rally support for a Remain majority?

The Tories could create a solid Tory manifesto and potentially win quite well on the back of it, playing the Brexit Means Brexit card, as well as grammar schools and other popular measures.

Open dicussion thread.

25 comments:

Scan said...

Excellent article as ever.

Ideal situation for me (aside from just getting on with it all): Government puts a motion before the house saying Article 50 will be triggered at the end of March. If it gets voted down, May calls an election with a short campaign timetable (can the government stipulate that?).

But they'd need to be clear to the British public (we're talking politicians here) whether triggering article 50 means we're out and are negotiating deals as a free nation. Or, we're still in and negotiating a "better" deal until it's clear a deal can't be done, at which time we're then out. Speaking with quite a fewpeople, many aren't sure when the "out" moment happens.

Ironically, for a Leave voter like myself, my constituency (Wakefield) was maybe the only one in the last election where the UKIP vote did actually split the Tory vote, which would have seen Labour out for the first time since the earth cooled. So maybe a strong TM and a weak UKIP will donthe job.

Nick Drew said...

May calls an election with a short campaign timetable (can the government stipulate that?)

ain't as easy as it used to be. May can't *just* do anything with fixed-term Parliaments

if she lost a vote of confidence the other lot get a period of time to form a new government

folks more knowedgeable than I say she can engineer an election in various ways, but (IIRC) only if the whole of the Tory contingent does exactly what shes wants

and of course the boundaries haven't changed yet ...

all that said: like yourself, I'd imagine an early(ish) election would be on the cards, one way or another

Ravenscar. said...

Heath took us in on a lie, Heath knew full well there was no such thing as a 'common market' it knew membership of the club of the damned would mean complete and permanent loss of sovereignty, as we transmogrified into a province of the Brussels Empire.

These same fuckers, the UK EUphiliacs, and corporate blob inclusive of the magic circle, the big four auditors, hedge fund leeches, the investment banksters.... who are today banging on about the importance and "primacy" of our legislature are of, the same fuckwits who were only too willing to give it all away and willingly, gaily dismantled all of the legislatures power, offshored it to Brussels and the Nomenklatura.
Thus, what remains of the HoC benchers is, barely a talking shop, there is no difference between any of the political hues; red, yellow, blue - they all bow to the EU superstate diktat, legal edicts and that's the way it has been since and indeed, even before 1972 when we were being softened up for entry in the slave superstate, an incipient German hegemony over EUrope.

Every time another treaty has been signed, remember Macavity Brown signing that constitution...er treaty of Lisbon via the back door? And the blizzard of lies just increased in intensity, the whole shebang was sold on a lie and the lies maintain. YET: the EU is stuffed it will implode all by itself - that is a fact.




We say.

Fuck to the niceties of constitutional casuistry and of quasi legal equivocation and dickering, Parliament deferred to the people, the people gave their answer - out of the EU and forthwith at that, it is now up to the executive to deliver and to leave the Brussels Empire.

On June 23rd 2016, at the behest of Parliament the nation spoke.

Woe betide the tosserati if they think that, this [above] plebiscite can be nullified and overturned. The people are fed up with the lies, fed up with being told what to do and how to think, we despise the green agenda, abhor Multiculti, we want our country back.

Now, Parliament either gets with the plan, or else.

Steven_L said...

I didn't think it that obvious that the government would lose. The PM has the power to enter into / withdraw from any other treaty organisations. The EU is basically a treaty organisation. Parts of the WHO treaty on tobacco control have been implemented into UK law, as have parts of UN climate change treaties. Does this mean Parliament would have to authorise leaving those? I doubt it.

The argument about brexit removing rights granted by Parliament (such as free movement etc) seemed a bit silly to me too. Parliament simply cannot grant UK citizens rights in foreign countries, only treaties can do this. The UK regulations implementing EU directives and making EU regulations enforceable (thus giving people rights in the UK such as employment and consumer rights) would still apply until Parliament revoked them.

But I'm sure they'll be happy for the delay, because let's face it, if they actually wanted to invoke Article 50 they'd have done it by now. They are hoping we will change our minds so they can have another referendum and get the right answer.

Blue Eyes said...

" didn't think it that obvious that the government would lose. The PM has the power to enter into / withdraw from any other treaty organisations. "

Your second statement explains the first.

Steven_L said...

I don't get you?

Electro-Kevin said...

I agree with you on the constitutional situation, Blue.

This should be very simple. Each MP must vote Remain or Leave according to how their own constituents voted in the referendum. In which case something of the order of 400:250 for Leave.

Otherwise, if the MPs ignore their constituents then they are not representing them but telling that they know what's best for them.

For me, open defiance of The People by Parliament is the next best thing to Brexit. At least we will have in the open the fact that - as you say - 'the UK is not a democracy.'

The next move if we stay in the EU ? Abolish the waste of space UK Parliament... and the monarchy while we're at it.

Let's go full monty EU.

MySovereigntyName said...

The English Civil War was fought to determine who legitimately executed the will of the people.
Who wielded 'Sovereignty'; Crown or Parliament?

As we know the outcome dictated 'Parliament'.

What was not resolved - and now must be acknowledged - is not just who wields sovereignty but who [i]is[/i] Sovereign; Parliament or People.

Looks like Englands 'Power to the People' moment has finally come. And ironic that this site should realise it.....

Electro-Kevin said...

Further to my first:

MPs voted 6:1 to have a referendum and abide by the result. Doesn't this bypass the constitutional issue ?

andrew said...

EK

No it doesn't.

Seems to me like TM wanted to set a precedent that means the govt can do stuff without a vote in parliament.
... and did not get away with it. Quite right too.

You may not like that brexit might have been delayed (unlikely really),
but there are other wider issues here:-

Look at it the other way round.

If TM can unilaterally cancel legislation without the consent of parliament,

TM's successor or JC or whoever at some point could point to this precedent and repeal other legislation - or possibly enact some.

Anonymous said...

On guido:

Lamia Shadow Warrior • an hour ago

I wouldn't have bothered to vote in the Referendum if I had been told that the Remain-stacked Parliament would make the final decision regardless of how we voted.

It's funny that the Remain campaign was so frantic in enlisting the help of numerous heads of state (including Obama), the IMF, the CBI, the EU itself, celebrities, the BBC et al when, supposedly, it didn't matter how we voted. Also funny how the government sent out a £9m leaflet saying it would implement the decision made by the public (to which no Remainer objected) when apparently it didn't matter a fuck how we voted - unless we voted Remain.

Ah well, now I see that democratic votes only count when we vote the 'right' way, if ever a political canvasser of any party asks for my vote again, I'll simply tell them to fuck off.


nuff said.

Remoaner said...

The purported appeal to the Supreme Court is a bad idea. They'll just get more mud on their face.

Having been to the SC last year, their Lordships will change or adjust the law - in our cases decades of contract law - if it makes legal sense. Their reasoning for changing contract law was "to give sense to the will of Parliament"

Expect a lot of horse trading in the background. If that does not work, watch for the backstabbing and jockeying for the job of PM which has just become vacant.

Blue Eyes said...

Great discussion.

EK the MPs have no obligation to do anything! Personally I think there will be a few headline-grabbing hold-outs but overall option 1 on my list will pass easily. Keir Starmer (Labour's Shadow Brexit minister) says the referendum result should be respected.

If not then it is option 3 - early election.

Andrew is right.

MyName is just bizarre as usual.

Electro-Kevin said...

Andrew is wrong.

Theresa May would not be acting unilaterally but with the backing of over 17 million British citizens on a specific question with the highest voter turnout on record.

We are the 16mn said...

Theresa May would not be acting unilaterally but with the backing of over 17 million British citizens on a specific question with the highest voter turnout on record.

May is toast ... watch for the backstabbing from Fox in particular. And as for Nigel, he knew this was on the cards which is why he ducked out.

The law is there not just for the 17mn but for the 16mn too and to stop kneejerk arriviste politicians.

One guy, Cromwell, went to war to show that Parliament was supreme.

SumoKing said...

Steven_L said...

The argument about brexit removing rights granted by Parliament (such as free movement etc) seemed a bit silly to me too. Parliament simply cannot grant UK citizens rights in foreign countries...


Incorrect as a matter of UK constitutional law. The UK parliament is supreme and unlike those who have a clear system of rule under a written constitution such as limiting their territorial application Westminster can do what it like where it likes. The common example is that the UK can outlaw smoking in Paris, as a matter of pure of law. It would of course, if it wanted to enforce such a law have to invade france and put smoke police in place but it could also legitimately jail anyone entering the UK who had a pic of them smoking in Paris on Facebook and there would be no grounds to appeal (smoking is not for example a human right).

The issue at hand has less to do with rights and more to do with laws, it is proposed that the Communities Act necessitated the creation of numerous new laws and principles to harmonise with EU members, much of which was then effectively created under statutory instrument as a great deal of delegated legislation is.

The Brexit argument thus goes that prerogative power, such as is occasionally used to over turn court rulings that the PM does not like or bind the country to treaties without having to tell parilament, cannot just be used to sweep away 50 years of parliamentary laws.

As regards a snap election section 2 has a list of get outs from the act, basically no confidence and idiotic 2 thirds majority, why you'd use that when you need 51% to just repeal the thing I don't know.

Electro-Kevin said...

@ We are the 16 MN :

Say the vote had been Remain by a similar margin. Then a rich banker came along with highly paid lawyers and presented before a HC Judge who had already campaigned for Leave. And then found that the Remain result was just 'advisory' and that we were going to put the choice before both houses stuffed with Leave supporters.

I'd expect rioting this weekend.

It's a good thing its' the other way around. After peaceful, patient and law-abiding use of due democratic process the Leave majority are still to be ignored.

I find your use of Cromwell bizarre.

I cannot find anywhere in the Referendum Act that it is 'advisory'. Handsard shows that the PM at the time of the 6:1 vote for a referendum said explicitly that the people's decision in that referendum would be upheld.

This is supported by the phrasing in the leaflets sent to our homes, by the words of the US President, Nicola Sturgeon, the IMF, the CBI, EU, celebrities et al (as Anon above.)

There was certainly no confusion there about what a Leave vote meant and I'm sure your 16MN would actually dwindle 9MN were it not for their attempt to terrify us. I know of no-one (not a single person) who loves the EU.

The haze and confusion about what the vote was, what Brexit meant, what is or isn't binding has been concocted post mortem by sore losing (and elitist) Remainers who refuse to lose and who have clearly changed goalposts from their previous position - that Leave would be concrete and disasterous - to thwart democratic will.

Whether Cromwell was right or wrong is besides the point. He fought and won a war - he certainly didn't win an argument.

10:24 am Delete

Sebastian Weetabix said...

We've never been a democracy, we're a constitutional monarchy. And here is where the Queen can do the right thing: she will never have a better opportunity to dissolve parliament and force an election than now. The Quislingtonians & their associated Eurofilth are still at the denial stage of the grief curve. HM can force them along a bit. If she doesn't then pitchforks & hemp may be required.

roym said...

even on here much mention of quislings and implied threats to our institutions.

I am genuinely saddened and scared by what this wretched referendum has done to our country. open talk of of traitors and calls for purges is the new normal? really?

Electro-Kevin said...

And even if we were a democracy... The courts have just been used by millionaire elitists to block majority will so that - now get this - unrepresentative Parliamentarians may continue to cede powers and decision making to the EU Parliament.

Cromwell would have gone to war against that as well.

andrew said...

EK

There are lots of things that were not mentioned in the referendum act
- like BQ getting a peerage if we voted for exit (surely just a matter of time...)

Unless the act positively says X then X will not happen. If there is a grey area - x - then courts can look at hansard to help understand the will of parliament to see if they meant X or x.

Having X fully defined is a way of spotting the mark of a good legislator(*).

Clearly that is not the case of the referendum act.

AS SK has mentioned,
In the mess that is the british constitution:
perogative power does not have the force of law. and referenda mean nothing.
however:
perogative power can do a lot of things that look like law and you ignore referenda at your peril.





(*) there is buried treasure in well crafted legislation

Blue Eyes said...

Guys, it is nonsense to pitch this as The Elite versus The People.

Tear down the rule of law and regret it. We should be glad that this country is full of pedants willing to stand up against the government and make sure the government sticks to the law. Any of us might need that law ourselves at some point as Andrew correctly points out.

The referendum act just says "there will be a referendum". You can look it up, it is online. The leaflet people keep quoting is a red herring.

As for all the string 'em up cobblers and death threats against Gina Wassername, what are we now, French Revolutionaries? Give me strength.

Electro-Kevin said...

Both points well made and taken on board.

As for death threats, Nooo. Gina is just the face of a much larger movement. Cleverly cast though. Unattackable for several reasons.

CityUnslicker said...

May will be glad, we need more time for the rest of Europe to join in voting for revolution. Ideally we trigger article 50 about this time next year.

Jan said...

It looks like the Lords will be the most disruptive and Lib Dems Lords to boot. Where's the democracy in that? There is no democracy. If I were Theresa May I would be tearing my hair out by now although CU may be right.