|
Source: (consider it)
|
Thread: Shake it all about: Brexit thread II
|
Sioni Sais
Shipmate
# 5713
|
Posted
quote:
Originally posted by orfeo:
<snip>
And to my mind it's completely wrong in principle to say that Parliament ought automatically to be involved in "big decisions". Parliament is involved with changes to the law. Not decisions in general if they have significant consequences.
Legislation is one aspect of Parliament's duty but holding the government to account is another. The courts do that too, but they approach it from the legislative point of view which isn't, IMNSHO, the only valid view.
Posts: 24276 | From: Newport, Wales | Registered: Apr 2004
| IP: Logged
|
|
Komensky
Shipmate
# 8675
|
Posted
Is it now the case the we took part in a referendum of which the delivery of one of the possible outcomes now turns out to be illegal?
I'll be happy to see Brexit blocked, I'm already suffering just because of the decision.
K.
--------------------
"The English are not very spiritual people, so they invented cricket to give them some idea of eternity." - George Bernard Shaw
Posts: 1784 | From: UK | Registered: Oct 2004
| IP: Logged
|
|
orfeo
Ship's Musical Counterpoint
# 13878
|
Posted
quote:
Originally posted by Sioni Sais:
quote:
Originally posted by orfeo:
<snip>
And to my mind it's completely wrong in principle to say that Parliament ought automatically to be involved in "big decisions". Parliament is involved with changes to the law. Not decisions in general if they have significant consequences.
Legislation is one aspect of Parliament's duty but holding the government to account is another. The courts do that too, but they approach it from the legislative point of view which isn't, IMNSHO, the only valid view.
Holding to account for actions that have been taken is not at all the same as having to give prior approval for actions. The difference between these two things is utterly fundamental to the relationship between parliament and government.
--------------------
Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
| IP: Logged
|
|
orfeo
Ship's Musical Counterpoint
# 13878
|
Posted
quote:
Originally posted by Alan Cresswell:
quote:
Originally posted by orfeo:
Having just read a bit more of the actual decision, I remain quite dubious about its correctness.
It seems to equate alterations to the law of the UK with the results of the application of the laws of (1)the EU or (2) other member states of the EU. And to my mind those are very different things. Changing the text of the law is not the same thing as triggering the application of the law of another country.
I'm not a legal expert, added to which I've not had time to read the court documents you linked to earlier (I'll have a look over them when I'm back home from work).
But, I thought the basic argument was that the UK joined (what became) the EU by an Act of Parliament. Therefore, leaving the EU will be to rescind that Act of Parliament. Scrubbing an Act from the books seems, to my lay eyes, the ultimate in "changing the text". The same would go for any other parts of UK law that derive from and rely on EU membership (if any such laws exist).
Well that's my first problem. I'm not persuaded that the UK joined by an Act of Parliament. Again, it's the EU rules that expected an Act of Parliament, as a condition of accepting the UK. It wasn't an idea that the UK came up with on its own.
Given that the EU requirement for leaving doesn't say that the UK must pass an Act, whereas the EU requirement for entering did say that an Act was required, what basis is there for saying you need an Act to leave? A false idea that the UK unilaterally set up the entry.
--------------------
Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
| IP: Logged
|
|
Komensky
Shipmate
# 8675
|
Posted
quote:
Originally posted by orfeo:
<snip>
Given that the EU requirement for leaving doesn't say that the UK must pass an Act, whereas the EU requirement for entering did say that an Act was required, what basis is there for saying you need an Act to leave? A false idea that the UK unilaterally set up the entry.
That's not the language of the treaty. Read it first.
K.
--------------------
"The English are not very spiritual people, so they invented cricket to give them some idea of eternity." - George Bernard Shaw
Posts: 1784 | From: UK | Registered: Oct 2004
| IP: Logged
|
|
lowlands_boy
Shipmate
# 12497
|
Posted
quote:
Originally posted by Komensky:
quote:
Originally posted by orfeo:
<snip>
Given that the EU requirement for leaving doesn't say that the UK must pass an Act, whereas the EU requirement for entering did say that an Act was required, what basis is there for saying you need an Act to leave? A false idea that the UK unilaterally set up the entry.
That's not the language of the treaty. Read it first.
K.
Article 50 point 1 says
Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
So I think Orfeo is right - the EU don't specify what our constitutional arrangements should be...
--------------------
I thought I should update my signature line....
Posts: 836 | From: North West UK | Registered: Apr 2007
| IP: Logged
|
|
Komensky
Shipmate
# 8675
|
Posted
quote:
Originally posted by lowlands_boy:
quote:
Originally posted by Komensky:
quote:
Originally posted by orfeo:
<snip>
Given that the EU requirement for leaving doesn't say that the UK must pass an Act, whereas the EU requirement for entering did say that an Act was required, what basis is there for saying you need an Act to leave? A false idea that the UK unilaterally set up the entry.
That's not the language of the treaty. Read it first.
K.
Article 50 point 1 says
Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
So I think Orfeo is right - the EU don't specify what our constitutional arrangements should be...
' in accordance with its own constitutional requirements.' —that was one of the central points of the High Court ruling. In our case, that means Parliament—unless the Gov't wins on appeal!
K.
--------------------
"The English are not very spiritual people, so they invented cricket to give them some idea of eternity." - George Bernard Shaw
Posts: 1784 | From: UK | Registered: Oct 2004
| IP: Logged
|
|
Ricardus
Shipmate
# 8757
|
Posted
I think the fact that we can argue about this stuff is proof that the British constitution isn't fit for purpose.
Also it's another item to add to the long list of things Mr Cameron should have thought about before he called the referendum.
I think it's essential that this debate happens, though (even if the Supreme Court sides with the Prime Minister). Can you imagine the alternative, in which on Day 1 of Brexit, the first person to lose out takes the Government to court using the arguments that have just been raised?
--------------------
Then the dog ran before, and coming as if he had brought the news, shewed his joy by his fawning and wagging his tail. -- Tobit 11:9 (Douai-Rheims)
Posts: 7247 | From: Liverpool, UK | Registered: Nov 2004
| IP: Logged
|
|
Alan Cresswell
Mad Scientist 先生
# 31
|
Posted
quote:
Originally posted by lowlands_boy:
So I think Orfeo is right - the EU don't specify what our constitutional arrangements should be...
Which is why it went the High Court, to specify what our constitutional arrangements are.
--------------------
Don't cling to a mistake just because you spent a lot of time making it.
Posts: 32413 | From: East Kilbride (Scotland) or 福島 | Registered: May 2001
| IP: Logged
|
|
orfeo
Ship's Musical Counterpoint
# 13878
|
Posted
quote:
Originally posted by Alan Cresswell:
quote:
Originally posted by lowlands_boy:
So I think Orfeo is right - the EU don't specify what our constitutional arrangements should be...
Which is why it went the High Court, to specify what our constitutional arrangements are.
Yes, but my concern is that the court was weirdly selective in deciding how those constitutional requirements related to EU law.
It's very strange indeed to say that parliament has control over treaty decisions. Indeed, it seems that it was accepted that the traditional position is that parliament is not.
But they decided that parliament's intention back in 1972 was to say "we are going to be involved in getting in, so we are going to be involved in getting out". But that seems to completely ignore WHY, back in 1972, parliament said anything at all.
It was because they were told they had to. Which immediately throws the whole "parliament is completely sovereign" line of argument into trouble. The judgment seems to me to be written as if parliament made a bunch of decisions it didn't really make.
--------------------
Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
| IP: Logged
|
|
orfeo
Ship's Musical Counterpoint
# 13878
|
Posted
quote:
Originally posted by Komensky:
quote:
Originally posted by lowlands_boy:
quote:
Originally posted by Komensky:
quote:
Originally posted by orfeo:
<snip>
Given that the EU requirement for leaving doesn't say that the UK must pass an Act, whereas the EU requirement for entering did say that an Act was required, what basis is there for saying you need an Act to leave? A false idea that the UK unilaterally set up the entry.
That's not the language of the treaty. Read it first.
K.
Article 50 point 1 says
Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
So I think Orfeo is right - the EU don't specify what our constitutional arrangements should be...
' in accordance with its own constitutional requirements.' —that was one of the central points of the High Court ruling. In our case, that means Parliament—unless the Gov't wins on appeal!
K.
This potentially descends into circular reasoning where you use an EU document that doesn't say anything about the content of the UK constitution to determine the content of the UK constitution in order to comply with the document.
--------------------
Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
| IP: Logged
|
|
orfeo
Ship's Musical Counterpoint
# 13878
|
Posted
I can extract a sentence from this article to neatly illustrate where I think the logic is problematic:
quote:
After all, at its heart the ruling does no more than underscore the point that by triggering Article 50 the Government would ultimately be depriving British citizens of rights they enjoy as a consequence of the European Communities Act 1972, the primary legislation by which EU statutes were given effect in UK law.
So which is it? Did the 1972 Act give British citizens rights, or did it implement EU laws that gave rights?
My money is on the latter being the more accurate description of the situation. British citizens don't have the right to work in France simply because of the 1972 Act. They have the right to work in France because the French implemented EU laws, in just the way that the British did. No British Act could create the right to work in France of its own force.
To me, the court is making an argument that treats gravity as something a falling person decides will happen, not a force that acts on a person who decided to jump.
[ 03. November 2016, 20:28: Message edited by: orfeo ]
--------------------
Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
| IP: Logged
|
|
orfeo
Ship's Musical Counterpoint
# 13878
|
Posted
Sorry, to put it another way briefly:
The accepted fact that triggering Article 50 would (in the long run) remove rights "given by the 1972 Act" without amending the 1972 Act in fact tends to cast doubt on the simplistic assertion that those rights were "given by the 1972 Act" in the first place. They were given by membership of the EU.
If the EU had a mechanism for simply throwing the UK out, then the idea that those rights were "given by the 1972 Act" would quickly be shown to be problematic. The EU would not continue to allow the British to vote in EU Parliamentary elections just because the 1972 Act kept saying that British people had the right to vote in EU Parliamentary elections.
--------------------
Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
| IP: Logged
|
|
Alan Cresswell
Mad Scientist 先生
# 31
|
Posted
quote:
Originally posted by orfeo:
my concern is that the court was weirdly selective in deciding how those constitutional requirements related to EU law.
I will now read those links, but at first glance haven't you got something wrong there? I thought the courts were ruling on what UK law has to say about constitutional arrangements in the UK, the UK courts would presumably not be able to rule in relation to EU laws.
--------------------
Don't cling to a mistake just because you spent a lot of time making it.
Posts: 32413 | From: East Kilbride (Scotland) or 福島 | Registered: May 2001
| IP: Logged
|
|
Doc Tor
Deepest Red
# 9748
|
Posted
Yes, but. An Act can't be annulled by the Executive under the Royal Prerogative. It can only be annulled by another vote in Parliament. It doesn't matter what Act it is or what it does.
--------------------
Forward the New Republic
Posts: 9131 | From: Ultima Thule | Registered: Jul 2005
| IP: Logged
|
|
orfeo
Ship's Musical Counterpoint
# 13878
|
Posted
quote:
Originally posted by Doc Tor:
Yes, but. An Act can't be annulled by the Executive under the Royal Prerogative. It can only be annulled by another vote in Parliament. It doesn't matter what Act it is or what it does.
Who's annulling an Act? Confusing the effect of jumping with the consequences of jumping.
It's EU law that says what EU members get. Neither the UK Parliament nor the UK government says it.
Annulling an Act would involve the UK government doing something to erase the rights in the 1972 Act while the factual basis for those rights, EU membership, still existed.
The logic that says this is annulling an Act would be complete nonsense in other situations. Losing UK citizenship does not annul the legislation that outlines the rights of UK citizens. Graduating from school does not annul the rules about school curriculum or school attendance. Selling a house does not annul the legislation about houses. The rules simply stop applying because the factual situation no longer exists.
EDIT: Indeed, the whole argument that "Parliament is sovereign" misconceives the situation of the UK entirely. When it comes to the EU, the UK isn't the one making the rules to apply, it's the one to whom the rules are being applied.
Which is really the whole point of Brexit. Your Parliament is NOT absolutely sovereign, and in my view the High Court is engaging in the fantasy that it still is.
[ 03. November 2016, 21:14: Message edited by: orfeo ]
--------------------
Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
| IP: Logged
|
|
orfeo
Ship's Musical Counterpoint
# 13878
|
Posted
After the Scottish Parliament voted itself out of existence in the early 1700s, who was supposed to approve any move for Scotland to leave the United Kingdom?
Are people arguing that Scotland leaving was constitutionally impossible until a new Scottish Parliament was created? That would be very odd.
I know that the situation is not exactly the same, but I'm illustrating that the simplistic logic of "they were involved in getting in, so they must be involved in getting out" doesn't hold up.
[ 03. November 2016, 21:19: Message edited by: orfeo ]
--------------------
Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
| IP: Logged
|
|
Doc Tor
Deepest Red
# 9748
|
Posted
quote:
Originally posted by orfeo:
It's EU law that says what EU members get. Neither the UK Parliament nor the UK government says it.
But it's UK law that says whether we're members of the EU. An Act took us in. An Act is needed to take us out.
In your poorly-thought out analogy, yes, we get to choose whether gravity applies to us or not.
--------------------
Forward the New Republic
Posts: 9131 | From: Ultima Thule | Registered: Jul 2005
| IP: Logged
|
|
orfeo
Ship's Musical Counterpoint
# 13878
|
Posted
quote:
Originally posted by Doc Tor:
quote:
Originally posted by orfeo:
It's EU law that says what EU members get. Neither the UK Parliament nor the UK government says it.
But it's UK law that says whether we're members of the EU. An Act took us in. An Act is needed to take us out.
In your poorly-thought out analogy, yes, we get to choose whether gravity applies to us or not.
This is like saying that because an enrolment form was needed to get into a school, another form will be needed to leave it. It simply doesn't follow.
An Act of Parliament was needed to take you in because the EU said it was. Not because there is an inherent need for legislation when you sign up to treaties. Think of all the other things the UK has signed up to.
And I repeat: if the EU simply threw you out, it would not take an Act of the UK Parliament!
When an Act of the UK Parliament removes the basis for a regulation, the effect of the regulation dies. It's good form to then get rid of the regulation, but I've dealt with situations where the regulation has stayed on the books after that.
When the EU says that you are no longer a member of the EU, the effect of any UK legislation that relies on your membership of the EU will die. Whether your legislation is still on the books or not.
Any argument that relies on asserting that the UK Parliament is completely sovereign is simply false. EU Membership depends on two things: the country that wants membership, and the EU accepting that membership. Claiming the UK Parliament is completely sovereign on things to do with EU membership completely ignores the role of the EU in deciding who is or isn't a member.
[ 04. November 2016, 00:47: Message edited by: orfeo ]
Posts: 18173 | From: Under | Registered: Jul 2008
| IP: Logged
|
|
orfeo
Ship's Musical Counterpoint
# 13878
|
Posted
Arguably the biggest problem with the "annulment" argument is that incorrectly identifies who will actually do any annulling. It isn't the UK government, it's the EU. It's the EU that will say when you are not a member of the EU, you can't vote in EU elections or have any of the rights that depend on EU membership.
Again, this is the falsity in complaining the UK Parliament is sovereign. It's pretending that, for example, the UK Parliament created the one in Strasbourg.
[ 04. November 2016, 00:50: Message edited by: orfeo ]
--------------------
Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
| IP: Logged
|
|
Leorning Cniht
Shipmate
# 17564
|
Posted
quote:
Originally posted by Komensky:
Is it now the case the we took part in a referendum of which the delivery of one of the possible outcomes now turns out to be illegal?
No, it's not. It is perfectly legal for the UK to leave the EU. The question at stake is whether the entity empowered to invoke article 50 is the Queen-in-Parliament or the Queen-in-Council. The EU doesn't have an opinion on that - it's a UK constitutional question.
But it's not illegal for the UK to leave the EU - it just might require Parliament to consent to it.
Posts: 5026 | From: USA | Registered: Feb 2013
| IP: Logged
|
|
Doc Tor
Deepest Red
# 9748
|
Posted
Orfeo, normally I'd defer to you in matters legal and constitutional, but since the noble lords on the bench disagree with you, and agree with me, then all I can say is that your argument is faulty at a fundamental level - the expressed opinion of the court is that the instrument required to disengage from the EU (Art. 50) cannot be invoked by Royal Prerogative.
[old lawyer joke]
How many lawyers does it take to change a light bulb?
How many can you afford?
[/old lawyer joke]
--------------------
Forward the New Republic
Posts: 9131 | From: Ultima Thule | Registered: Jul 2005
| IP: Logged
|
|
mr cheesy
Shipmate
# 3330
|
Posted
quote:
Originally posted by orfeo:
Arguably the biggest problem with the "annulment" argument is that incorrectly identifies who will actually do any annulling. It isn't the UK government, it's the EU. It's the EU that will say when you are not a member of the EU, you can't vote in EU elections or have any of the rights that depend on EU membership.
Again, this is the falsity in complaining the UK Parliament is sovereign. It's pretending that, for example, the UK Parliament created the one in Strasbourg.
Look, I know nothing, but this doesn't feel right to me. The EU as a thing was set up by a club of nations mutually deciding to delegate some of their powers to central institutions, so in a very real sense it was the British Parliament which had to assent to those powers being delegated.
UK law was changed to reflect the agreed central regulations of the club - also by the UK Parliament - and the UK courts were instructed to enforce the EU regulations.
The issue with Article 50, as far as I can make out, isn't that the EU holds the keys, it is that the UK entered into binding agreements when it joined which are not simple to unwind now Brexit is on the table. Presumably the UK could just announce the intention to leave by formally informing the EU via the Article 50 clause and then do nothing until the time limit is up. At that point, presumably, the UK would continue being liable to all of the costs it is liable from the ratified agreements but would no longer have a seat at the Council and would be excluded from the EU Parliament.
The UK could then change all the EU focussed legislation and engage in trade agreements etc, but would still be liable to the EU as if it was still a member. Hence the whole thing about negotiating terms to leave.
--------------------
arse
Posts: 10697 | Registered: Sep 2002
| IP: Logged
|
|
Callan
Shipmate
# 525
|
Posted
quote:
Originally posted by Doc Tor:
Orfeo, normally I'd defer to you in matters legal and constitutional, but since the noble lords on the bench disagree with you, and agree with me, then all I can say is that your argument is faulty at a fundamental level - the expressed opinion of the court is that the instrument required to disengage from the EU (Art. 50) cannot be invoked by Royal Prerogative.
The logic of the governments position was that the Prime Minister of the day could decide to secede from the EU, effectively on a whim. And on Orfeo's logic it was only the EU that required Parliament to pass Acts implementing and amending the UK's relationship with the EU. Presumably Heath could have used the Royal Prerogative to take us in, Mrs Thatcher could have done the same to create the Single Market, Major could have signed up to Maastricht by that route (thus saving the Whips office the mother of all headaches) and Blair could have used the prerogative to sign up to Lisbon and the only objection would have been that it was against EU rules? Effectively it's a claim that the relationship between Parliament and the electorate can be amended without the consent of Parliament.
--------------------
How easy it would be to live in England, if only one did not love her. - G.K. Chesterton
Posts: 9757 | From: Citizen of the World | Registered: Jun 2001
| IP: Logged
|
|
Alan Cresswell
Mad Scientist 先生
# 31
|
Posted
In addition to the legal questions (and reading the court decisions last night a) made my head hurt and b) sent me to sleep), there is also one of political expediency.
Assuming that the law/constitution allow the government a free hand to form (and break) international treaties without consent from Parliament. It would still, however, be better for the government to obtain Parliamentary approval even where not necessary. Politically it's sometimes necessary to do more than the minimum that the law requires. The support of the people, expressed through their Parliamentary representative, for a particular action must surely be what any government wants (pushing measures through without that support is the sort of thing that ends up with lack of job security come the next election).
Which, of course, leaves us in this situation where a referendum has shown a slender majority in support of some form of Leave. Does that mean that the government doesn't need to seek the support of Parliament, since the people have given their support for some form of Brexit directly? You'll have all read my arguments that the people didn't vote on any specific question of Brexit, and therefore there is currently a lack of democratic debate on the specific form of Brexit - and, I would say that Parliament is the logical place for that debate to take place (as well as ongoing public debate and discussion).
--------------------
Don't cling to a mistake just because you spent a lot of time making it.
Posts: 32413 | From: East Kilbride (Scotland) or 福島 | Registered: May 2001
| IP: Logged
|
|
PaulTH*
Shipmate
# 320
|
Posted
quote:
Originally posted by Alan Cresswell:
I recently saw a study on demagraphics that showed that even if no-one changes their votes (including the choice not to vote) then within 5 years the result would swing to Remain simply by the number of young people turning 18 and the death of the elderly.
Watching Nick Clegg on TV this morning, it's obvious what he has in mind. Parliament, the Commons and the Lords, which has a disproportionate number of Lib Dems, can delay and frustrate Brexit at every turn, hoping that eventually the vote of the 23rd June can be overturned. I can't speak for Alan, but with what he wrote above, I think he'd like that idea. The SNP will obstruct in any way possible. Amendments will be put down by both Commons and Lords, kicking the Bill back and forth until a tanking economy takes over, or enough people die or come of age that the demographic goes in favour of Remain. This is nothing less than what we can expect from our smug political elite.
But it's likely to backfire. For once I agree with Nigel Farage that this will provoke outrageous anger from the Leave voters who've been denied their democratic say. It could even harden support for Leave. I voted Remain, but I won't tolerate that scenario quietly. This is why an general election is urgently needed. Mrs May would go into it seeking powers to do things her way. I'd be interested to hear Jeremy Corbyn's take on it, because he's never been forthright on his view of the EU, although he does support honouring the referendum vote.
But the parties need to have it in their manifestos how they will tackle the issue. And if any individuals within any of the parties disagree profoundly with their party line, they shouldn't stand. But there should be a sobering thought for one such as Ed Miliband. Although a general election will always be about much more than a single issue, if the recent referendum had been a parliamentary election for candidates for Leave or Remain, Leave would have won more than 400 seats. An election will force candidates to take seriously the views of the people who elect them. That's the way to bring this process under democratic control, not having the judiciary throw it back into a heavily pro Remain parliament.
--------------------
Yours in Christ
Paul
Posts: 6387 | From: White Cliffs Country | Registered: May 2001
| IP: Logged
|
|
Alan Cresswell
Mad Scientist 先生
# 31
|
Posted
quote:
Originally posted by PaulTH*:
quote:
Originally posted by Alan Cresswell:
I recently saw a study on demagraphics that showed that even if no-one changes their votes (including the choice not to vote) then within 5 years the result would swing to Remain simply by the number of young people turning 18 and the death of the elderly.
Watching Nick Clegg on TV this morning, it's obvious what he has in mind. Parliament, the Commons and the Lords, which has a disproportionate number of Lib Dems, can delay and frustrate Brexit at every turn, hoping that eventually the vote of the 23rd June can be overturned.
The problem is that we already have one constitutional crisis (a radical change in our relationship with the EU), with a second looming on the horizon (a potential second independence referendum in Scotland). Does anyone really want a third caused by the Lords delaying Article 50 being invoked (since the consensus is that any Act will go through the Commons relatively quickly)?
Maybe this is time for the government to go by the minimum the law requires - put together an Act that gives the government the authority to invoke Article 50 and form a negotiating platform without further recourse to Parliament. It would be, IMO, a deeply anti-democratic move but should head off the constitutional crisis that would be caused by the Lords frustrating the Commons.
What we really need is the deep and serious discussion on the benefits and costs of different forms of Brexit, so that as a nation we can agree on what that would be. Of course, we should have had that discussion already - it should have preceded the referendum vote (with, of course, before the referendum the option of "no form of Brexit" on the table). The problem, of course, being that such a discussion will last for years, if not decades. The rush to have an early referendum and the requirement therefore to invoke Article 50 has removed the time we need to spend discussing the issues.
quote:
I can't speak for Alan, but with what he wrote above, I think he'd like that idea.
I can't deny I would love it if we could go back and do the referendum properly, have several years of discussion to allow the Leave campaign to form a clear position, so that we could have an informed debate and vote in the referendum itself. But, "I wouldn't start from here" is only a good line in a joke (though 'joke' is a pretty good summation of the way Cameron handled calling the referendum, and all the mess thereafter). The current government has no choice but to go for Brexit. I don't think that same requirement would hold to future governments - which does hold open the door for sanity to be restored if May calls for an election before concluding the Article 50 negotiations. It's not going to endear the UK to the rest of the EU if either the invoking of A50 is delayed to 2018 or there's an election before 2020 and the incoming government is elected on a pro-EU platform and says "sorry chaps, but we don't want to leave the EU afterall", but if that's the government we elect at that time ....
quote:
For once I agree with Nigel Farage that this will provoke outrageous anger from the Leave voters who've been denied their democratic say.
Though, I would say we were all denied our democratic say when no one bothered to even define the question we were answering in June. Since the referendum didn't define Brexit, then we still need to be able to have our democratic say on what Brexit means - through our representatives in Parliament, through public discussion and debate, if necessary through a follow-up referendum. But, I've banged on about that enough already.
--------------------
Don't cling to a mistake just because you spent a lot of time making it.
Posts: 32413 | From: East Kilbride (Scotland) or 福島 | Registered: May 2001
| IP: Logged
|
|
Doc Tor
Deepest Red
# 9748
|
Posted
quote:
Originally posted by PaulTH*:
I'd be interested to hear Jeremy Corbyn's take on it, because he's never been forthright on his view of the EU, although he does support honouring the referendum vote.
Something about this sentence lends me to believe that you weren't paying attention during the run-up to the referendum.
--------------------
Forward the New Republic
Posts: 9131 | From: Ultima Thule | Registered: Jul 2005
| IP: Logged
|
|
quetzalcoatl
Shipmate
# 16740
|
Posted
That is the crux for me - Brexit was not defined, and is now being claimed by various parties, as meaning X, Y and Z. However, I don't recall voting on X, Y and Z.
Mrs May is behaving like a medieval monarch, in trying to determine these things outside Parliament. But I can see her problem, she might want a soft Brexit, but the nutters are at her back.
--------------------
I can't talk to you today; I talked to two people yesterday.
Posts: 9878 | From: UK | Registered: Oct 2011
| IP: Logged
|
|
Callan
Shipmate
# 525
|
Posted
quote:
Originally posted by Doc Tor:
quote:
Originally posted by PaulTH*:
I'd be interested to hear Jeremy Corbyn's take on it, because he's never been forthright on his view of the EU, although he does support honouring the referendum vote.
Something about this sentence lends me to believe that you weren't paying attention during the run-up to the referendum.
Very droll.
--------------------
How easy it would be to live in England, if only one did not love her. - G.K. Chesterton
Posts: 9757 | From: Citizen of the World | Registered: Jun 2001
| IP: Logged
|
|
Tubbs
Miss Congeniality
# 440
|
Posted
quote:
Originally posted by quetzalcoatl:
That is the crux for me - Brexit was not defined, and is now being claimed by various parties, as meaning X, Y and Z. However, I don't recall voting on X, Y and Z.
Mrs May is behaving like a medieval monarch, in trying to determine these things outside Parliament. But I can see her problem, she might want a soft Brexit, but the nutters are at her back.
She might, but as immigration is her thing, I wouldn't bet on that.
I'd be happier if Brexit became a cross-party issue and everyone pitched in. That way, they all get to take responsibility and no one party owns it.
Whilst I agree with the court case, Brexit should go through due process like anything else, I don't agree with the attempts to undermine it. We had a vote and we are where we are.
I agree with Sir Vince Cable: "I don’t think the second referendum is a panacea to anything ... Which side would we be on if there was a soft Brexit, would we support Theresa May or would we be with Nigel Farage voting it down?” He wants the Lib Dems to put “more emphasis on what it is we want from these negotiations rather than arguing about the tactics and the means.”
Tubbs
--------------------
"It's better to keep your mouth shut and be thought a fool than open it up and remove all doubt" - Dennis Thatcher. My blog. Decide for yourself which I am
Posts: 12701 | From: Someplace strange | Registered: Jun 2001
| IP: Logged
|
|
PaulTH*
Shipmate
# 320
|
Posted
One thing I'm not clear about. Does the court ruling mean that Article 50 can only be invoked following an Act of Parliament, or as Iain Duncan-Smith suggested today on Daily Politics, just a parliamentary vote? That makes a big difference. A vote to trigger it would likely be passed. Unless members want to be seen to thwart the referendum vote. An Act could take forever and get nowhere. It's in the latter case that an election would be the only way to break the impasse.
--------------------
Yours in Christ
Paul
Posts: 6387 | From: White Cliffs Country | Registered: May 2001
| IP: Logged
|
|
Doc Tor
Deepest Red
# 9748
|
Posted
AFAICT: the vote in parliament has to be worded in the order papers. Any such worded order can have amendments tabled to it prior to the vote, which are also voted on. So, any final vote will carry the original proposal, plus any amendments. The Lords will also be able to amend the legislation, and pass it back to the Commons.
It's not the vote that terrifies May, but the amendments.
--------------------
Forward the New Republic
Posts: 9131 | From: Ultima Thule | Registered: Jul 2005
| IP: Logged
|
|
PaulTH*
Shipmate
# 320
|
Posted
quote:
Originally posted by Alan Cresswell:
I never received this mythical leaflet from Cameron.
I still have it tucked in the bottom of an upstairs drawer. The government controversially spent £9.3 million leafleting every house with its advice to vote Remain. It then says, "This is your decision. The government will implement what you decide." This is what Theresa May is trying to do, remembering that she was herself a Remainer. I see this as the clearest of mandates to pursue Article 50 by Royal Perogative. It doesn't require a parliamentary vote to declare war on another country, though it may be wise to seek approval.
If I were her, I would get a vote on her intention to trigger Article 50, as a vote of confidence in her administration. If sufficient members try to thwart the process she will be required to call an election. It is a serious contempt for democracy if the judiciary or individual members of the Commons or Lords tries to gridlock this process because they disagree with the result.
--------------------
Yours in Christ
Paul
Posts: 6387 | From: White Cliffs Country | Registered: May 2001
| IP: Logged
|
|
Callan
Shipmate
# 525
|
Posted
Originally posted by PaulTH:
quote:
If I were her, I would get a vote on her intention to trigger Article 50, as a vote of confidence in her administration. If sufficient members try to thwart the process she will be required to call an election.
That would mean going to the country with a definite proposal for Brexit with red lines and aims and objectives and so forth. I think May's plan is to go to Brussels with a plan to end free movement and to see what she can get in terms of trade deals. When this happens the Tabloids will declare victory and she will win the next election by a country mile. We will then all wake up as to exactly how screwed we all are.
If she has to put her cards on the table first, she will probably still win the election but afterwards Corbyn will have to step down and she will be in the position of having to deliver actual outcomes with a vaguely competent Leader of the Opposition giving a running commentary on the state of the pound and the economy, and so forth whilst the electorate wake up to the biggest case of buyers regret since they elected John Major in 1992. We will still be screwed but there will be an opposition which is in a position to benefit from that.
In the interim being thwarted by The Judges, Nick Clegg, Ed Miliband and other assorted enemies of the people isn't a problem at all as it delays the British economy getting utterly frelled whilst allowing her to pose as Mother Theresa, The Peoples Friend and generally standing up to the Rootless International Cosmopolitan Conspiracy Against Brexit. She waits, patient and potent, knowing that her hour has come.
--------------------
How easy it would be to live in England, if only one did not love her. - G.K. Chesterton
Posts: 9757 | From: Citizen of the World | Registered: Jun 2001
| IP: Logged
|
|
Callan
Shipmate
# 525
|
Posted
Mind you, if we are talking about leaflets sent out during the Referendum Campaign I distinctly recollect stuff about £350 million for the NHS. If Continuity Leave aren't being held to that one, I don't see why Continuity Remain ought to keep Cameron's promises.
--------------------
How easy it would be to live in England, if only one did not love her. - G.K. Chesterton
Posts: 9757 | From: Citizen of the World | Registered: Jun 2001
| IP: Logged
|
|
Charles Had a Splurge on
Shipmate
# 14140
|
Posted
quote:
Originally posted by PaulTH*:
It then says, "This is your decision. The government will implement what you decide." This is what Theresa May is trying to do, remembering that she was herself a Remainer. I see this as the clearest of mandates to pursue Article 50 by Royal Perogative.
This is another example of sloppiness in setting-up the referendum. The Cameron government should have checked what the legal position was before making this promise. But as they expected to win they were too lazy and arrogant to do this.
In any case, where was the mechanism for triggering Article 50 mentioned? There was no question asking us if we wanted it by Royal Prerogative or by Parliamentary assent. No clear mandate. What was clear was that the referendum was advisory only. It wasn't meant to override normal representative democratic practice.
--------------------
"But to live outside the law, you must be honest" R.A. Zimmerman
Posts: 224 | From: What used to be Berkshire | Registered: Sep 2008
| IP: Logged
|
|
|
|
rolyn
Shipmate
# 16840
|
Posted
Politics has become a charade while Globalisation continues unabated.
Is this necessarily a bad thing? The vagaries of the masses getting it's fill, while the job of maintaining peace and prosperity falls to something resembling a World Government.
So says the optimist.
--------------------
Change is the only certainty of existence
Posts: 3206 | From: U.K. | Registered: Dec 2011
| IP: Logged
|
|
Sioni Sais
Shipmate
# 5713
|
Posted
Oh do catch up people. The referendum was only put in place to silence the Euro-sceptics in the Conservative party, thereby uniting that party, and put UKIP in its place. The faffing around since June 24th shows that the government never had the slightest idea how it was to go about leaving the EU as that was never going to be necessary. It makes the fiasco in post-Saddam Iraq look well-planned and well-executed.
--------------------
"He isn't Doctor Who, he's The Doctor"
(Paul Sinha, BBC)
Posts: 24276 | From: Newport, Wales | Registered: Apr 2004
| IP: Logged
|
|
Humble Servant
Shipmate
# 18391
|
Posted
quote:
Originally posted by Charles Had a Splurge on:
It wasn't meant to override normal representative democratic practice.
However, now MPs have been given the opportunity to restore normal service, it seems like they plan to miss their chance. Even in the pro-EU independent I read an article showing the gap between the referendum result and the MP's view. There seems to be a view, at least on BBC radio, that to represent the people, the MPs must confirm the referendum result from June's 72% turnout vote (even though the £350 million per week for the NHS has been withdrawn since the vote).
Posts: 241 | Registered: Apr 2015
| IP: Logged
|
|
Humble Servant
Shipmate
# 18391
|
Posted
quote:
Originally posted by PaulTH*:
It doesn't require a parliamentary vote to declare war on another country, ...
We are not declaring war on another country. We are changing the law of the United Kingdom and stripping all its citizens of their EU citizenship. This is a very big deal, not something you can do on a whim and then shout "will of the people" when you get only a wafer-thin majority of a fairly low turnout single question referendum.
Posts: 241 | Registered: Apr 2015
| IP: Logged
|
|
Alwyn
Shipmate
# 4380
|
Posted
Based on my first reading of the judgment, the court's reasoning seems to be that:-
(1) Triggering Article 50 would remove people's rights under the European Communities Act 1972, since those rights will be lost at the end of the negotiation process;
(2) Triggering Article 50 would involve the government using Royal Prerogative power;
(3) The government cannot use Royal Prerogative powers to take away rights which Parliament gave us in a statute (such as the ECA 1972).
For what it's worth, I think the opposing argument, that prerogative powers cannot remove statutory rights, so triggering Article 50 would not remove statutory rights (therefore the government can lawfully trigger Article 50) is the better view. (I voted remain and would prefer the law to require Parliamentary authorisation for triggering Article 50 - I simply didn't think that the law required that). Mark Elliott's arguments (in his Public Law for Everyone blog) persuaded me. As I see it, the fact that this can be argued either way shows that this is a grey area - something which an alert minister, adviser or MP could have spotted when the European Union Referendum Bill was being written or when it was being enacted.
The court said that, with one exception (EU law), only Parliament can override an Act of Parliament. So I agree with people who are saying that it will take an Act of Parliament to trigger Brexit.
I also agree with people who are saying that blaming the judges for doing their job is unfair. The government (when they wrote the EU Referendum Bill) - and Parliament - could have asked 'what happens if a majority vote leave?' They could have included a clause in the Act, giving the Prime Minister a statutory power to trigger Article 50. Reading Article 50 could have tipped them off that this would have been helpful, since Article 50 says that 'Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements'. As this case shows, the constitutional requirements in the UK were a grey area. Since the government and Parliament did not take the opportunity to decide what those requirements are, they left the grey area for the judges to sort out. The loud accusations by some tabloids against judges for interpreting a grey area of the law puts the blame in the wrong place. The judges were doing their job - because some other people hadn't done their jobs properly.
[ 05. November 2016, 06:52: Message edited by: Alwyn ]
--------------------
Post hoc, ergo propter hoc
Posts: 849 | From: UK | Registered: Apr 2003
| IP: Logged
|
|
Rocinante
Shipmate
# 18541
|
Posted
quote:
Originally posted by Humble Servant:
(even though the £350 million per week for the NHS has been withdrawn since the vote).
This, to me, is enough to make the referendum result null and void. How many people voted leave because of this nonsense? The brexiteers have now admitted it was a bare-faced lie.
Unfortunately we have no legal process for nullifying the result, as referenda have no clearly defined status in the UK. As Sioni says, the referendum was a tactical move from an inept Prime Minister, not thought through beyond "this could get me out of a fix".
Posts: 384 | From: UK | Registered: Jan 2016
| IP: Logged
|
|
Alan Cresswell
Mad Scientist 先生
# 31
|
Posted
quote:
Originally posted by Rocinante:
Unfortunately we have no legal process for nullifying the result, as referenda have no clearly defined status in the UK.
If it was a regular election and a candidate was found to have deliberately lied about an opponent, and that was considered likely to affect the result, then there are processes to investigate and potentially call a by-election. If we're going to use referenda to by-pass Parliamentary democracy then we certainly need to define what is and is not acceptable campaigning, and the consequences of unacceptable campaigning. I would certainly want to see deliberate lies and threats of violence included in the list of what is unacceptable. If one side of a discussion can't get the result they want without using outright lies and threatening violence if they don't get their way then they don't deserve to win.
--------------------
Don't cling to a mistake just because you spent a lot of time making it.
Posts: 32413 | From: East Kilbride (Scotland) or 福島 | Registered: May 2001
| IP: Logged
|
|
PaulTH*
Shipmate
# 320
|
Posted
quote:
Originally posted by Callan:
That would mean going to the country with a definite proposal for Brexit with red lines and aims and objectives and so forth. I think May's plan is to go to Brussels with a plan to end free movement and to see what she can get in terms of trade deals.
Establishing her red lines with Brussels was certainly her preferred option, but all parties having to lay out their ideas, which would happen in an election is no bad thing. It would boil down to red lines. Do we put "taking back control" as they love to put it, ahead of membership of the Single Market? Do we put our ability to seek trade deals around the world ahead of membership of the Customs Union? Each party can tell us what they would prioritise and we vote accordingly. It would end this cat and mouse game between the government's Brexit team and the rest of parliament which is clamouring for detail. In reality, nobody can give that much detail, because they don't know what they'll be up against, but at least we can vote on the general direction in which they intend to take us.
--------------------
Yours in Christ
Paul
Posts: 6387 | From: White Cliffs Country | Registered: May 2001
| IP: Logged
|
|
PaulTH*
Shipmate
# 320
|
Posted
quote:
Originally posted by Alan Cresswell:
If one side of a discussion can't get the result they want without using outright lies
Like the Remain side threatening everything from World War III to an emergency budget to needing a visa for a day trip to France. In my case it worked. Project Fear induced me to vote Remain.
--------------------
Yours in Christ
Paul
Posts: 6387 | From: White Cliffs Country | Registered: May 2001
| IP: Logged
|
|
Alan Cresswell
Mad Scientist 先生
# 31
|
Posted
The problem is that those 'red lines' don't easily follow party political lines. Which means that a general election prior to Brexit, with the intention of getting popular support for a particular form of Brexit, will result in either parties having to form some form of compromise among their members (and, hence have significant numbers of elected MPs who want something different) or a dissolution of our current political parties to form new "Brexit policy parties" - the "control immigration" party, the "free trade party", the "free movement party", and (I would hope) the "this whole thing is a lot of nonsense and stay in the EU" party. Sticking with current parties makes support for a particular form of Brexit impossible to define, and I don't see new parties happening (even if that didn't then leave us in total limbo on every other issue).
Which basically means if you want another election you're better off with either the government defining what they want, and putting that to the approval of the people in a second referendum, or a multi-choice second referendum.
As has been repeatedly said. A total cock-up by Cameron leaving us in an impossible situation.
--------------------
Don't cling to a mistake just because you spent a lot of time making it.
Posts: 32413 | From: East Kilbride (Scotland) or 福島 | Registered: May 2001
| IP: Logged
|
|
Alan Cresswell
Mad Scientist 先生
# 31
|
Posted
quote:
Originally posted by PaulTH*:
quote:
Originally posted by Alan Cresswell:
If one side of a discussion can't get the result they want without using outright lies
Like the Remain side threatening everything from World War III to an emergency budget to needing a visa for a day trip to France. In my case it worked. Project Fear induced me to vote Remain.
Well, I was never a fan of Project Fear. But, it's not unreasonable to point out the difficulties and potential problems with the proposals of the other side - though in this case that was impossible since the other side was making a bunch of mutually contradictory proposals.
When it comes down to it, the very hard Brexit options would also include a need for a visa to travel outside the UK. Without freedom of movement then there need to be visas to cross borders. There's no requirement for any nation (or the whole EU) to enter into a visa waiver scheme - although if the UK-EU doesn't produce a visa waiver scheme I would be incredibly surprised.
--------------------
Don't cling to a mistake just because you spent a lot of time making it.
Posts: 32413 | From: East Kilbride (Scotland) or 福島 | Registered: May 2001
| IP: Logged
|
|
PaulTH*
Shipmate
# 320
|
Posted
quote:
Originally posted by Alan Cresswell:
(I would hope) the "this whole thing is a lot of nonsense and stay in the EU" party
You already have that in abundance in Scotland with the SNP. In the UK we have the Lib Dems who've already made it clear that's their ticket. But I don't think it's that difficult. We already know that May wants to make control of our borders a red line, and hope for a good deal on trade. We know that her stand will take us out of the Single Market. Jeremy Corbyn has said that the referendum result must be respected, but that he wants to know the details of Mrs May's proposals, but unless I've missed something, he hasn't yet told us how he would go about it. We know the position of the SNP and the Lib Dems.
All the parties would need to have a manifesto and candidates would need to stand, as they do in any election, on what the party is offering. I don't see a problem with this, but I do see a problem with the current state of things.
--------------------
Yours in Christ
Paul
Posts: 6387 | From: White Cliffs Country | Registered: May 2001
| IP: Logged
|
|
|
Printer-friendly view
