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politicalbetting.com » Blog Archive » In safe hands? Whose finger is on the Article 50 button?
“Who? Whom?” Lenin asked. These are questions that confront the government and Parliament when determining who decides to pull the trigger to leave the EU: who is going to take control and who is going to be dictated to? We are set for a constitutional power struggle to be fought in the courtroom and the next chapter unfolds next month.
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The referendum being advisory in nature is irrelevant and not required, so long as the government commands the confidence of the house.
I guess Mr Meeks should stick to Pension law...
FTPT:
I have finally worked out why the libdems are outperforming at local level and floundering at national level. Bitter or sad EU nationals are allowed to vote but not in General Elections. Theresa May should put this right as part of the Brexit agreement and rightly so.
No it doesn't, as in fact Alastair notes further down. Everything hinges on both what the constitutional requirements are and on what the practical politics will allow.
You can't have it both ways. Either we follow the constitutional powers or we follow the question of mandate but we can't mix and match depending on the outcome we want.
Constitutionally, the Crown has always had the power to exercise executive power subject to specified constraints. In this case, to activate a provision of a treaty that parliament has already ratified. It doesn't need parliament's approval for this: although there are any number of indirect legal consequences of doing so, the direct and immediate consequences are nil.
Alternatively, if we take the question of mandate - that parliament ought to approve (or reject) such a far-reaching decision - then we actually come to the legal fiction of parliamentary supremacy. Leaving aside that within the EU, parliament isn't supreme anyway (and this very case tests that, as the argument has always been that the EU's supremacy could be overriden by withdrawal), the practical politics is that parliament is only supreme subject to the will of the people. The principle is firmly established that the Commons is voted for by the adult population on a more-or-less equal geographical basis. If that same electorate then expresses its opinion on a specific issue - and on a large turnout - then what is the mandate on which parliament should override that view, whether formally advisory or not.
The reality is that either the electorate's view is advisory, in which case so is parliament's; or the electorate's mandate is sufficient to make up for any technical loophole, in which case parliament has no right to reverse the decision.
In any case, the notion that parliament hasn't had a say is bollocks.
Parliament voted to ratify the Lisbon Treaty. When it did so, it incorporated the withdrawal provisions into UK law. If it wanted to clarify or amend the pre-existing prerogative powers with respect to Brexit, it could have done so then; it didn't. The conclusion must therefore be that the pre-existing powers were left unaffected.
Similarly, when parliament voted to enable the EURef, it could have incorporated provisions within the Act relating to the Crown powers and/or to the binding nature of the vote. It did neither. In the former case, again, we have to assume that in not legislating, parliament passively reaffirmed the status quo. In the latter, however, there was no constitutional legal status quo but there was precedent - and that precedent is that the results of all referendums in the UK have been implemented. The government itself published a leaflet, distributed to all households, that promised as much.
Those arguing that the referendum was advisory are not missing the wood for the trees but missing the trees as well. Parliament has already spoken and has already consented.
Where is it forbidden that the Crown may not exercise the Royal Prerogative in this case?
As a Remainer I would vote down any MP who sought to block this.
Leaving the EU may be damaging, but subverting the will of the people would be orders of magnitude more damaging.
Continued membership of the customs union or the single market, from outside the EU, would deprive the UK of legislative autonomy. The former would mean it could not adopt its own trade policy. The latter would mean accepting all regulations relating to the single market, without possessing any say on them, continuing with free movement of labour, and, probably, paying budget contributions. A country that has rejected membership is not going to accept so humiliating an alternative. It would be a state of dependence far worse than continued EU membership.
The only reasonable alternative to hard Brexit would be to stay inside the EU. Parliament is constitutionally entitled to ignore the vote result. The people could also be asked if they wanted to change their minds. But the Conservatives would surely follow Labour into ruin if they tried to reverse the outcome.
https://www.ft.com/content/3328547a-7e3d-11e6-bc52-0c7211ef3198
ASSURANCES that Brexit will not lead to a hard border in Ireland do not necessarily mean the same rule would apply to travel between an independent Scotland and England, leading academics have warned.
http://www.heraldscotland.com/news/14754500.UK_promise_of_no_Brexit_borders_in_Ireland_may_not_apply_to_independent_Scotland__experts_claim/?ref=rss
In case you missed it.... https://t.co/RRcMQ2Bb15
From here, we have to ensure that Parliament has primacy over the executive. The British people voted to take power back from Brussels. Our power does not reside in the government, it resides in Parliament. The courts need to clarify that.
If Corbyn was PM, surely that'd mean he would have the confidence of the House? If not, the vote of confidence I described would befall him.
I don't see why a parliamentary vote would be needed to exercise a clause in an existing international treaty to which the UK is already party, particularly since the mandate would derive from the existing referendum result, but, if it did, I suspect it would clear the HoC easily.
In constitutional theory, the Queen could simply invoke Article 50 and dismiss any government that disagreed. The practice - despite no legal constitutional restraint bar parliament's power over supply otherwise - is rather different.
Too many constitutional theorists, especially on the left, get worked up about nightmare scenarios that have almost no chance of occurring, and which if they were a realistic possibility, wouldn't be prevented by a piece of paper.
It's a no-brainer: http://openeurope.org.uk/today/blog/post-brexit-leaving-customs-union-no-brainer/
I don't see this as hard Brexit, it's the most basic of Brexits.
https://ukconstitutionallaw.org/2016/07/08/thomas-fairclough-article-50-and-the-royal-prerogative/
2. Parliament has already had a vote when it passed the legislation authorising the referendum, unless you take the view that the referendum was an irrelevance.
(Remainers and left wingers of a sensitive disposition are advised to look away now).
Bee-killing Asian Hornets have arrived in Britain.
http://dailym.ai/2d2idwI.
Britain Elects @britainelects
Plasnewydd (Cardiff) result:
LDEM: 48.1% (+15.4)
LAB: 34.8% (-2.0)
PC: 6.8% (-5.3)
CON: 4.4% (-1.2)
GRN: 3.6% (-9.3)
UKIP: 2.4% (+2.4)
11:11 PM - 20 Sep 2016
Lots of talk of her being AWOL/why didn't she say anything about it - and that she's scheduled for Orlando tomorrow - the forecast is 90F and very humid. One to watch.
http://wisermonkeys.uk/images/govt-eu-leaflet-promise.jpg
Sounds like it was the government that was receiving the advice, not Parliament.
The power of the executive is already set to be greatly increased by the reduction in the number of MPs.
But this is different. In this case Parliament approved a referendum by primary legislation. It decided to ask the people whether or not the government should trigger article 50 and the people said yes (just). It would be an outrage if the Courts now sought to impose additional hurdles on the implementation of that decision.
It is also worth noting that decisions of this nature, even when they are put to Parliament, are put to the Commons. The Lords have no say in this. They will be involved in the repeal of legislation such as the European Communities Act but if there is any vote it will be in the Commons. I do not believe that there is any majority in the Commons to remain in defiance of the referendum.
This is because most of them are EU badged international standards.
At the moment we are represented by the EU at the international bodies that set those standards. If we leave, we will (like Norway) have our own seat.
The Queen is the people and the people are the Queen.
There are going to be lots of bumps along the way to Brexit, and establishing the precedent that these should be openly debated in Parliament is a good one. The next use of the perogative may well not be one to the taste of the Brexiteers.
We have years of this sort of wrangling to look forward to. Get the precedents right.
What's concerning is that the people wanting Parliament to have have a say now, wish to do so only so Parliament - particularly the Lords - can overturn the voice of the People.
Although, for what it's worth, I think that both Labour and the SNP would struggle severely to justify voting against a dissolution (and, therefore, against a chance to beat the hated Tories at the polls,) anyway.
Frankly, anyone taking refuge in the phrase "advisory referendum" can safely be ignored.
The Commons thereby demonstrate their authority.
The 'voice of the people' was not unequivocal.
As for "advisory", see David Herdson's post at 4:28am. It was nothing of the sort.
Either the courts and Parliament uphold the referendum result, which would be a huge waste of time and money, or one of them overturns it, which would be a democratic disgrace.
May should shortcut the situation and just invoke A50 now.
The funniest part was the testimony of art 'experts' defending this bollocks. You were supposed to look at them and meditate about the meaning of life, A little like a Yoga master can concentrate on the word Ommmmm. Funnily enough, the original bricks had been taken back to the makers and the artist had got his money back (no fool him).
The experts, of course, knew best and they were scathing about the philistines who didn't understand. I then had a pretentious moment myself. It would serve as an allegory for the EU. The bricks didn't matter, it was an excuse to feel good about yourself at the expense of the plebs, the thickos.
The EU is an art object. It has no real value - that resides in its power to divide you from the unwashed hordes who have no appreciation of true art. A pile of bricks, an unmade bed, a turd (tinned turd to be exact) or whatever. It tells you that you're special, you can appreciate things that others can't. You're better than them. You can wallow in self-satisfaction. In the case of the EU, you have higher ideals.
So, to all you Remainers, I've got a pile of dog poo you can buy for £10,000. Or rather, I can collect some if you want. You will be suffering from withdrawal symptoms when we leave the EU.
The only complicating factor arises if the UK has special access to the EU such as no tariff deal. If that is the case then exports from the UK will need to show they were genuinely produced here and not just imported from Japan to avoid the tariffs that Japan pays. If we ended up on WTO rules, for example, this simply would not arise. If we have a free trade agreement it will but as Open Europe pointed out it is not a particularly big deal.
As a matter of fact - the referendum was advisory.
http://www.theguardian.com/politics/2016/jun/23/eu-referendum-legally-binding-brexit-lisbon-cameron-sovereign-parliament
http://uk.businessinsider.com/green-eu-referendum-not-legally-binding-brexit-2016-6
It looks like it. We voted Leave with the biggest mass participation in years/ever, the HMG leaflet said the result would be implemented, the HoC voted for the Referendum Act.
Trying to nitpick/overturn the vote looks exactly like the EU's attitude to democracy.
Have a word with yourselves.
I recall an episode of That's Life where they'd a variety of small children and animals wandering about on canvases to produce 'modern art'. Then asked experts to critique them. With predictable Pseuds Corner results.
Although I think even here Norway in some ways have more influence. I will see if I can find the Barkworth article on it later. Going underground now.
This whole "advisory" nonsense was only brought up by bad losers after they lost.
We have, at Parliament's request, decided to leave and Parliament and the courts would be wrong to overturn that decision - and silly to waste time and money upholding it.
(1) Parliament asked the people if we should leave
(2) The people voted to leave
(3) The government must now leave.
(4) Er, that's it.