Brexit legal challenge.

ToneControl

prh777 said:

Brize said:

prh777 said:

I do urge people to watch the following analysis irrespective of their position on the matter.

What, you mean watch the guy that depends on the EU for his living?

That is categorically incorrect.

he holds the Jean Monnet professorial chair, paid for by the EU, i.e. half his salary comes directly from the EU

ToneControl

Clarky said:

ThorpyFX said:

Brize said:

ThorpyFX said:

We the general public cannot be trusted to understand and analyse the facts.

Speak for yourself. The vast majority of the public support assisted dying, and yet MPs voted against it.

I don't know why i have to clarify this... but here you go. We as a nation voted for a prestigious exploration ship to be called Boaty Mcboatface! I was not speaking for you or criticising your intellect, i wasn't even saying i couldn't understand the facts, I was applying a generalisation to the public at large which was pretty clear.

 It says it all when as a country have a potentially life changing vote and 28% don't even turn up. So no, i don't believe as a nation we can be trusted to vote on a subject so important.

<script type="text/javascript" src="safari-extension://com.ebay.safari.myebaymanager-QYHMMGCMJR/37d4d046/background/helpers/prefilterHelper.js"></script>

Boaty Mcboatface is an awesome name

it would have conveyed our self-effacing humour to the world, much better than naming it after an OBE holder

At least they actually used the name of a respectable, well-liked person in the end

ICBM

ToneControl said:

ICBM said:

Someone needs to tell them that a majority of UK citizens did not express a desire to leave the EU.

AFAIK it was the single biggest ever mandate for a decision in UK history at 17.4m votes, but that's not enough?

No, because it's the proportions that matter not the numbers.

More people voted for John Major (OK, they voted for their Conservative candidates rather than for him personally) than any other Prime Minister. What does that tell you about how important absolute numbers are? Nothing. He was neither the most popular PM nor the one with the largest majority in Parliament.

And I'll repeat this, since you seem to be intentionally missing it - it is not true that a majority of UK citizens expressed a desire to leave the EU. That is a fact, and arguing about whether the ones who didn't vote would have voted one way or the other is not the point. I'll absolutely agree that the majority *of votes cast* were for leaving - that isn't the same thing at all.

Parliament's job is to represent the people - MPs are in fact supposed to represent their constituents' interests whether or not they voted for them. That includes the ones who didn't vote.

digitalscream is exactly right - allowing the government to overrule Parliament because the result of a non-binding referendum says so is *extremely* dangerous as well as illegal.

And if Parliament, after due process, chooses to instruct the government to invoke Article 50, so be it.

Brize

@ICBM You really are making yourself look like a complete tit.

Chalky

Does "so be it" mean you'll be forced to come up with another argument? )

hobbio

I voted Leave, but now regret it.

Even I understand that you cannot guess the wishes of those who did not vote. They did not vote, and as such do not get their opinion counted.

Brize

Arguing with hard-line Remainers is like arguing with pro-gun Americans - an exercise in futility.

ICBM

Chalky said:

Does "so be it" mean you'll be forced to come up with another argument? )

Don't mistake my way of thinking for yours.

I'll repeat it:

ICBM said:

And if Parliament, after due process, chooses to instruct the government to invoke Article 50, so be it.

TheBigDipper

ToneControl said:

prh777 said:

Brize said:

prh777 said:

I do urge people to watch the following analysis irrespective of their position on the matter.

What, you mean watch the guy that depends on the EU for his living?

That is categorically incorrect.

he holds the Jean Monnet professorial chair, paid for by the EU, i.e. half his salary comes directly from the EU

That's not what he says. Oh, sorry, I forgot...  (takes deep breath)  "He would say that, wouldn't he?" .

ToneControl

If we need to rubber stamp the democratic decision with an act of parliament, fine

I'm not too keen on labelling this referendum as an "opinion poll", that demeans its purpose and importance

Anyway: could we all please speculate on the likely effects of the MPs voting to not leave?

my theories are:

• Tories - 57% of the their voters are leavers, most of the party members, around half of the MPs
  I'd assume that MPs voting to remain would be deselected. In disgust, many voters would switch to UKIP, up to 10% (of overall poll) I think
  
  
• Labour - has many leave voters in the country, little support in PLP or party members. I think labour could lose 10% of voters too
  Party likely to split under Corbyn if he stays
  
  
• Libs - I dunno
  
  
• SNP - There's an assumption that SNP voters are remainers. Early polls had over 30% of SNP voters wanting Brexit. I'd suspect that the SNP voting it down would reduce their votes in the next general election
  
  
• UKIP - Gain 15-20% of electorate. NB: they had 12.5% of the electorate in 2015
  
  
• NI: same old religious divide

in summary:

massive gains in real seats for UKIP: 

Assume a low-end 15% increase. Seriously, those leave voters would be so pissed off. I'd even consider voting for them myself as a one-off to make my vote count "this time"

I ran the simulator at http://www.may2015.com/category/seat-calculator/

it came up with 155 seats for UKIP at a 27.5% vote share; 184 Labour, 197 tories

If you add 10% of the voters (i.e. 10% of total turnout) from each of labour and tories, UKIP would have a majority, at 390 seats

If the labour party fragments, I assume this would lead to more UKIP votes

Now @ICBM, is this the future you were hoping for?

UKIP with the most votes, in a coalition with the tories, or even having a majority of their own?

Snap

IMO the fault, if there is any, in this process lies in going to a referendum in the first place. Its fraught with pitfalls, not least the issue of turnout.

It should never have been put to a referendum, nothing should, ever. You either have parliamentary government, or you don't. You don't go the a referendum on cherry picked issues, simply as a popularity tool. Poor government.

If you are fool enough to use a referendum, well then you will just have to take the result. The very nature of them means that even if there is one vote in it, that's it.

The fault was also in not setting up the rules of the voete strictly enough. They should have said minimum 75% turnout to make it valid, maybe even higher.

Now they have a right mess on their hands: it will have to go to parliament to be implemented. This is a political and democratic nightmare.

As for Juncker and co demending an immediate invocation of Articel 50, well they can demand all they want. There's nothing to say it has to be invoked immediately, no precedent. This is unchartered ground.

This whole debacle has truly exposed the nature of our politicians - shysters one and all. The MP's expenses shambles was nothing to this: what a bunch of horrible people we have running our country.

StanleyAccrington

I voted stay in. I don't regret it. I accept the referendum result. I'm just waiting for us to leave the EU now. PS........Fender Modern Player short scale Telecaster. Does it still have the 'twang' of it's normal scale counterpart?

siremoon

ICBM said:

And I'll repeat this, since you seem to be intentionally missing it - it is not true that a majority of UK citizens expressed a desire to leave the EU. That is a fact, and arguing about whether the ones who didn't vote would have voted one way or the other is not the point. I'll absolutely agree that the majority *of votes cast* were for leaving - that isn't the same thing at all.

It is also a fact that a majority of UK citizens did not express the desire to Remain in the EU.

Sporky

Fretwired said:

Please stop this .. there was a vote. If people couldn't be arsed to vote tough. More people voted to leave than stay. Have you any idea what these lawyers will unleash if they get their way - anarchy. It will fuel the rise of the far right. Is that what you want?

I see Project Fear has switched sides.

I may have misread, but it looks like the legal challenge is to prevent the government starting Article 50 without an act of parliament. It's not to stop Article 50 altogether.

EricTheWeary

It's hard to imagine that no one gave over five minutes to ask someone for legal advice before organising the referendum so I'll assume this challenge is a red herring. It has always been clear that the referendum is not binding and that any deal to leave the EU has to be agreed by Parliament. That's significantly more complex than a Yes or No. We would want Parliament to agree our exit on the best terms possible, if that can't be achieved then we may not exit. The EU has a vested interest in us not leaving with the best deal, as it paves the way for other countries to exit, so being unable to agree the terms to leave wouldn't be a complete suprise.

ICBM

ToneControl said:

Now @ICBM, is this the future you were hoping for?

If that was the democratic will of the people, yes. I dislike UKIP intensely but the fact is that people vote for them - those people are currently denied a voice by our electoral system. If you read a few other threads you'll see that I also support a more democratic system of election.

I also don't think they'd get anywhere near that level of support anyway since most people can see through their complete lack of coherent policies and treat them for what they are - a protest vote. They are not a potential government.

Snap said:

IMO the fault, if there is any, in this process lies in going to a referendum in the first place. Its fraught with pitfalls, not least the issue of turnout.

It should never have been put to a referendum, nothing should, ever. You either have parliamentary government, or you don't. You don't go the a referendum on cherry picked issues, simply as a popularity tool. Poor government.

If you are fool enough to use a referendum, well then you will just have to take the result. The very nature of them means that even if there is one vote in it, that's it.

The fault was also in not setting up the rules of the voete strictly enough.

Exactly, and that's why Cameron was right to resign - not because he lost, but because he was incompetent.

siremoon said:

It is also a fact that a majority of UK citizens did not express the desire to Remain in the EU.

I've never disagreed with that. The truth is that we don't know what the majority want, and hence it's wrong to change the status quo without due process.

I have never said anything else.

Chalky

Snap;1137515" said:

IMO the fault, if there is any, in this process lies in going to a referendum in the first place. Its fraught with pitfalls, not least the issue of turnout.



It should never have been put to a referendum, nothing should, ever. You either have parliamentary government, or you don't. You don't go the a referendum on cherry picked issues, simply as a popularity tool. Poor government.



If you are fool enough to use a referendum, well then you will just have to take the result. The very nature of them means that even if there is one vote in it, that's it.



The fault was also in not setting up the rules of the voete strictly enough. They should have said minimum 75% turnout to make it valid, maybe even higher.



Now they have a right mess on their hands: it will have to go to parliament to be implemented. This is a political and democratic nightmare.



As for Juncker and co demending an immediate invocation of Articel 50, well they can demand all they want. There's nothing to say it has to be invoked immediately, no precedent. This is unchartered ground.



This whole debacle has truly exposed the nature of our politicians - shysters one and all. The MP's expenses shambles was nothing to this: what a bunch of horrible people we have running our country.

The referendum clearly demonstrated that 'the great and the good' were overwhelmingly Remainers and equally clearly they had little or no insight into the thinking of half the population, 'the great unwashed'. That's an appalling indictment of the elite. Its also demonstrated that a large part of the population have little or no faith in democratic process and have little or no faith in the people. That is the sadder part.

Heartfeltdawn

I'll repost these two links as they are extensive. First:

https://publiclawforeveryone.com/2016/06/30/brexit-on-why-as-a-matter-of-law-triggering-article-50-does-not-require-parliament-to-legislate/

"Just because, on my analysis, the Prime Minister can trigger Article 50 without reference to Parliament, it does not follow that that would be a wise or sensible thing to do. Triggering Article 50 would be a highly significant step, given that it would open up the possibility of — even though, as discussed above, it certainly would not render inevitable — the wholesale departure of the UK from the EU. In such circumstances, the case for parliamentary involvement is strong. Indeed, in other contexts — most notably the use of the prerogative to deploy the armed forces abroad— there is an increasing expectation, and arguably a constitutional convention, concerning parliamentary involvement. In the Article 50 context, there is no equivalent established convention that requires parliamentary involvement, but there is certainly a normative argument in favour of such involvement that could in due course form the basis of a convention.

Even if one dismisses the possibility of “ignoring” the result of the referendum, much remains to be decided — including about the UK’s interests would best be served by triggering Article 50 or seeking to proceed in some other manner — and there are excellent democratic reasons for arguing that Parliament should play a full part in those deliberations. As we are rapidly discovering, the volume and complexity of the issues left unresolved by the binary view expressed by the electorate is immense, and Parliament has a crucial role to play in shaping the way forward. For all that the UK has experimented with direct democracy through the holding of a referendum on EU membership and on other constitutional matters, the UK remains, fundamentally, a parliamentary democracy, and it cannot plausibly be argued that the referendum substitutes for proper parliamentary involvement.

But such normative arguments are a distinct issue from the question whether Parliament, as a matter of law, must be involved at the outset, by way of enacting primary legislation firing the Article 50 starting gun. For the reasons given in this post, the better view is that Article 50 can be invoked by the Prime Minister using prerogative power, without the involvement of Parliament."

Now this does differ to the second article here:

https://ukconstitutionallaw.org/2016/06/27/nick-barber-tom-hickman-and-jeff-king-pulling-the-article-50-trigger-parliaments-indispensable-role/

"Far from being a straightforward and streamlined process of exit, the Article 50 process raises very complicated legal and political issues and is pregnant with risk (additional to those inherent in existing outside the EU). These complexities are compounded by the murky ambiguities of our unwritten constitution.

The referendum result itself does not speak to the question of how the UK should leave the EU. It is up to the Government and to Parliament to ensure that the exit is managed consistently with the UK’s national interest.

Our analysis leads to the possibility that the process of extraction from the EU could be a very long one indeed, potentially even taking many years to come about. Of course, the EU Member States have made clear that they will only negotiate once the Article 50 exit provisions have been triggered and are pressing the UK to pull the trigger “as soon as possible”. It is also clear that uncertainty is itself undesirable. But uncertainty needs to be weighed against other imperatives, such as the need to comply with the UK’s constitutional requirements and the need to ensure that Brexit is effected consistently with the national interest. A quick pull of the Article 50 trigger is unlikely to be feasible under the UK’s constitutional arrangements and may well not be desirable for any UK Government or Parliament, even one committed to eventual withdrawal from the EU.

Brexit is the most important decision that has faced the United Kingdom in a generation and it has massive constitutional and economic ramifications. In our constitution, Parliament gets to make this decision, not the Prime Minister."

Heartfeltdawn

What both articles demonstrate is that there is no clear legal path forward for this. One legal expert says the Prime Minister has the prerogative to go through with Article 50, another bunch says it should be with Parliament. The whole process would be breaking new legal ground. 

I would say that on the balance of evidence that a Prime Minister could invoke Article 50 without the need to involve Parliament. It would be utterly mental to do so in my opinion. For a potentially unelected Prime Minister to use a non-binding referendum as the impetus for invoking Article 50 would be shitting all over our notions of democracy and would be completely hypocritical given the Leave campaign's bitching about the lack of democracy at EU level (after all, it would be utterly bonkers that our own elected members in Parliament would have no chance to vote on Article 50 yet MEPs across the board would get to vote on Britain leaving the EU once Article 50 had been invoked). 

Where Parliament would definitely be involved would be with the repeal of the European Communities Act 1972, the means by which we entered the EU. It boils down to whether statute beats prerogative. That there is so much disagreement within the legal world about it indicates that there is no right or wrong answer as such. 

digitalscream

Heartfeltdawn said:

Where Parliament would definitely be involved would be with the repeal of the European Communities Act 1972, the means by which we entered the EU. It boils down to whether statute beats prerogative. That there is so much disagreement within the legal world about it indicates that there is no right or wrong answer as such. 

That's the problem - we could conceivably end up in a situation where the PM has triggered Article 50, but Parliament refuses to repeal the European Communities Act. In that eventuality, it's kind of a stalemate until 2 years have elapsed, at which point it's taken out of our hands and the EU kick us out.

Basically, it's exactly what the Leave campaign used as persuader - the EU will directly have invalidated one of our laws, through our own actions.

Irony in action

The only way to avoid any chance of this happening is to have Parliament involved in triggering Article 50 at the same time as repealing the European Communities Act, I suspect.