Brexit Thread

[Seamus Fermanagh]

To paraphrase dear old Furunculus, there's no connection between demos and kratos in the UK.

The people clearly want out, but the bureaucratic machine won't let them. Maybe Brits should get the EU to help them cut through all that red tape and regulations.

City mice/country mice. The city mice "know better" and think the country mice voted Yes for silly reasons.

[edyzmedieval]

You don't have a constitutional crisis - the UK doesn't have a constitution. At most you have a discussion about the rule of law, and let's not forget the referendum was advisory and in no way legally binding.

And the High Court judges simply respected the rule of law.

[Kralizec]

You don't have a constitutional crisis - the UK doesn't have a constitution. At most you have a discussion about the rule of law, and let's not forget the referendum was advisory and in no way legally binding.

And the High Court judges simply respected the rule of law.

Well, strictly speaking 'constitution' just means 'foundation'. As in, the fundamental principles that underpin the state and its laws. In most countries the word is translated and understood as meaning a document containing these principles (i.e. Grundgesetz/Grondwet, meaning 'basic (written) law')
That would have been perfectly fine except, well, we have the UK.

Even in countries that have written constitutions there are principles or conventions that are not literally included in the written document, but which are considered important enough that violating them would cause outrage and political upheaval. I don't think the Brexit court case qualifies though. I'm not even sure I understand PVC's point.

From the angle of the EU, article 50 is drafted under the assumption that countries which start the exit procedure had better be serious about wanting to leave. And from the UK angle, such a commitment would have to be approved by parliament first.
It certainly sucks for the UK parliament that they "have" to agree to an exit procedure without knowing beforehand what the final terms will be, or without being able to dismiss the final terms if it turns out they're not beneficial....but I don't see how any of that amounts to a constitutional crisis. Or why it reflects badly on the EU, which seems to be PVC's implied point.

[edyzmedieval]

By any stretch, the UK has a constitution - except it really doesn't. We view the UK constitution as a constitution because it acts like one, definitely, but it is a compendium of legal documents, statutes, common laws... It's not a constitution per-se, but it does act like one.

And within this legal framework of the United Kingdom, you have the Parliament that acts as the sovereign power of the people. It's a matter of rule of law here. The High Court of Judges simply outlined that the UK constitution/legal documents have enforced for hundreds of years. Parliament is the boss and you have to respect the will of the Parliament. And that's not a constitutional crisis because it simply respected the rule of law, as it had been outlined for hundreds of years and that's how the British system has worked from the days of King John Lackland who was forced to sign the Magna Carta.

This is democracy. Just as the referendum was.

[Pannonian]

City mice/country mice. The city mice "know better" and think the country mice voted Yes for silly reasons.

The city mice know the country mice voted for stupid reasons. They know this because, immediately after the result, the country mice asked the government to guarantee what the EU had previously given them. When the tendency over the past few decades indicates that the government has little inclination to give them that, and in some cases (eg. Liverpool), deliberately starve the region into irrelevance in favour of the city mice. Given the option of spending 5bn on London or spending numerous packets of 100m in outlying regions, Westminster can be relied on to give London 4.8bn while the regions have to make do with 10m each. Londoners know this, despite the regioners desperately asking Westminster for assurances that they won't miss out on the 100m that the EU had previously given them. The city mice have little sympathy for the almighty shafting that the country mice are going to get in coming years.

[Brenus]

"The people clearly want out, but the bureaucratic machine won't let them" Nope. The decision of the Parliament ruling over the Monarchy, as May evoked the "Royal Prerogative" was dealt with by the Civil War (1642 to 1646).

[Montmorency]

Let's be clear: the UK does have a Constitution, it is simply distributed, not contained in or confined to a single document. None of the legal reasoning surrounding the actions of government or Parliament in this particular case, however, involve anything more than the most straightforward questions; there is no crisis.

While I believe that in the case of the US federal government, there would be more scope than in the UK to proceed with negotiations and afterward present the results to Congress, as a general rule for states where there is specific legislation affected or nullified by larger executive efforts, then it is inevitably and only the legislature that can authorize executive action by removing or modifying that legislation. This is even the case in most dictatorships that I know of, with the legislative process being no more than a pretense but existing nonetheless.

To simplify what I've been speaking of, partly using as reference American negotiations on the nuclear agreement with Iran:

1. Legislature passes resolution of approval for terms of engagement.
2. Officials of government discuss with foreign parties or under auspices of foreign/multinational body.
3. Officials of government present terms for finalization.
4a. Inconclusive, return to Step 2.
4b. Legislature passes resolution of disapproval, possibly cancelling the enterprise in its current form.
4c. Legislature passes resolution of approval, finalizing terms.

If Step 4c is taken, then if course there must be further legislative changes to fit whatever the results of Step 2 were fit into the existing legal structure.

In the specific case of the United States, partly due to the nature of the federal executive and the highly multinational nature of the topic, Congress has passed some legislation pertaining to things like waivers for sanctions in the case of following the roadmap, which was agreed to by Iran and the body involved, but Congress AFAIK never passed either approval or disapproval of the final agreement as it stands.

[Philippus Flavius Homovallumus]

How? What circumstances are you thinking of, if we have already covered those in which the Parliament explicitly invokes the article and the government proceeds with negotiation, the Parliament rules out the referendum result and maintains the status quo, or the Parliament rules out the referendum with the caveat that the government is directed to otherwise seek modifications or accommodations to EU membership standards (as the UK has always done)?

What specifically could happen or come into legal conflict in these or unmentioned circumstances? Clandestine diplomacy at the highest levels? That would be a more run-of-the-mill political crisis.

Are you sure you haven't gotten confused and weren't just thinking of this the whole time?

Well, I told you I wasn't sober.

Really though, I think it's two issues. You have Parliament backing a Referendum and then possibly disregarding it. Then you also have Parliament trying to curtail the government's Royal Prerogative using the Referendum as a stalking horse.

Of course, Parliament may just rubber stamp the Referendum - we don't know. However, at the time the Referendum was held it was generally understood that it would decide the issue. In a country where Common Law still governs that's actually very important. The Referendum Bill apparently didn't specify if it was Mandatory or Advisory. The Government position is that it was understood to be mandatory and therefore is. The Judges to the opposite view.

Since we don't seem to agree on a lot otherwise, maybe we can be RX 480 buddies? Also, welcome to the club!

We can be buddies, just don't expect me to vote with you. Also, thanks. I'm liking it so far.

You are having Brexit because some politicians spouted too many fairy visions of the Promised EUless land.

You don't have to have a constitution to enjoy constitutional crisis.

No, we're having Brexit because, with regards to the EU, Parliament has repeatedly acted Contrary to the Will of the People. This has created a Democratic Deficit, as Sarmation says, and because we are a democracy it made a referendum on membership inevitable. The British don't really want what the EU is selling, except for trade. We want trade

https://www.theguardian.com/politics...P=share_btn_tw

Apart from the obvious issue of not respecting the highest court (disagreement obviously happens here as well, but never as strongly as in this case AFAIK), I would also like to ask why the judges look like sad christmas presents wearing carpets from the 70s on their heads?

I get that judges are meant to look ridiculous in every country, but those wigs really take the cake.
And no, that does not mean one shouldn't respect the ruling, it is merely about maybe updating the looks just a tad little bit once in a thousand years. I mean they probably also, hopefully, don't talk anymore like they did in the 1070s.

To be fair, the current costume is only about 2-300 years old, and those are bad wigs. It's perfectly possible to have a good wig and not look like an idiot. However, now that woman can be judges (and powdered wigs never look good on women) it seems all male judges must now have poorly fitting wigs.

To address your main point, this will now go to the Supreme Court (that was always going to happen, I see no reason why the government should no appeal - the hedge fund managers would have). I personally think the judges are wrong, and it's clearly a matter of opinion, their opinion being that the Government cannot proceed because the Referendum was not mandatory.

If Parliament DOES try to stop us leaving in the end it will poison politics in this country for decades. It will also destroy the Labour Party, as they will never be able to call themselves "party of the people" afterwards.

The city mice know the country mice voted for stupid reasons. They know this because, immediately after the result, the country mice asked the government to guarantee what the EU had previously given them. When the tendency over the past few decades indicates that the government has little inclination to give them that, and in some cases (eg. Liverpool), deliberately starve the region into irrelevance in favour of the city mice. Given the option of spending 5bn on London or spending numerous packets of 100m in outlying regions, Westminster can be relied on to give London 4.8bn while the regions have to make do with 10m each. Londoners know this, despite the regioners desperately asking Westminster for assurances that they won't miss out on the 100m that the EU had previously given them. The city mice have little sympathy for the almighty shafting that the country mice are going to get in coming years.

The City Mice think they know better, they also think they know why the country mice voted the way they did.

What they don't think about is what politics will be like after we leave the EU - there will be no more cover for Westminster, so when someone dumps two tons of manure outside the entrance to Downing Street and demands to know why British farmers are being driven into the ground the Government won't be able to blame the CAP.

The people trying to overturn the result keep going on about "our democracy" but they refuse either to address the fact that Europe has been used as anti-democratic cover for successive UK government for decades (whether true or not) or the fact that outside London life is pretty bad for a lot of people. EU subsidies pump in money, they don't give people jobs or a livelihood they can be proud of.

Again Cornwall - tin. Go ask a Cornishman and a lot of them would rather be down a mine breathing in toxic fumes that handing our leaflets to German tourists about all the old, sad, closed mines. That's not a dig at the Germans btw, they just seem to be over represented in Cornwall in the summer.

[Pannonian]

The City Mice think they know better, they also think they know why the country mice voted the way they did.

What they don't think about is what politics will be like after we leave the EU - there will be no more cover for Westminster, so when someone dumps two tons of manure outside the entrance to Downing Street and demands to know why British farmers are being driven into the ground the Government won't be able to blame the CAP.

The people trying to overturn the result keep going on about "our democracy" but they refuse either to address the fact that Europe has been used as anti-democratic cover for successive UK government for decades (whether true or not) or the fact that outside London life is pretty bad for a lot of people. EU subsidies pump in money, they don't give people jobs or a livelihood they can be proud of.

Again Cornwall - tin. Go ask a Cornishman and a lot of them would rather be down a mine breathing in toxic fumes that handing our leaflets to German tourists about all the old, sad, closed mines. That's not a dig at the Germans btw, they just seem to be over represented in Cornwall in the summer.

If the country mice are so confident about life outside the EU, then they should accept whatever the UK government hands out to them rather than ask for assurances, including any loss of investment as the price to be paid for reasserting national sovereignty. As with the cited example of Liverpool, back in the days before the EU took an interest in promoting regional identities, the UK government were free to carry out a policy of starving regions that were deemed to be politically undesirable or irrelevant. That kind of policymaking was, of course, what estranged Scotland from England, with the Scots deemed to be a suitable test bed for policies that the UK government wanted to try out on a limited scope before introducing them to England. With the Europeans out of the equation, the UK government is free to resume this strategy, free from any worry that the EU may make up for what they deliberately set out to deprive the regions of.

[Montmorency]

Yes, there are many American rural folk who demand in various ways that the government leave them to suffer in peace, while demanding intervention elsewhere. Fundamental democratic deficits are driven by the latent characteristics of a society, not the availability of scapegoats (which are inherently always available).

[Furunculus]

No, we're having Brexit because, with regards to the EU, Parliament has repeatedly acted Contrary to the Will of the People. This has created a Democratic Deficit, as Sarmation says, and because we are a democracy it made a referendum on membership inevitable.

I always take the view that what matters is legitimacy, and this derives from a combination of [both] representation [and] accountability.

Representative democracy is two words, and people get awfully hung up on the second without pausing to consider the first.

It doesn't matter if you get to vote if you have no confidence that the outcome will be acceptable to your wishes, and the only reason we consent that others may act in our name is because we do believe they will represent us.

When governance ceases to be deemed legitimate it becomes tyranny, and we turn up in front of parliament with pitchforks and burning brands. it's the way we roll.

[Brenus]

"I personally think the judges are wrong" Nope.
It is a point of law: "The sovereignty of Parliament is, from a legal point of view, the dominant characteristic of our political institutions. And my readers will remember that Parliament consists of the King, the House of Lords, and the House of Commons acting together. The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that "Parliament" has "the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament,"
A V DICEY, in
http://www.constitution.org/cmt/avd/law_con.htm
Chapter: The Sovereignty of Parliament

[Philippus Flavius Homovallumus]

"I personally think the judges are wrong" Nope.
It is a point of law: "The sovereignty of Parliament is, from a legal point of view, the dominant characteristic of our political institutions. And my readers will remember that Parliament consists of the King, the House of Lords, and the House of Commons acting together. The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that "Parliament" has "the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament,"
A V DICEY, in
http://www.constitution.org/cmt/avd/law_con.htm
Chapter: The Sovereignty of Parliament

So if Parliament passed a law to hold a referendum which was understood to have the purpose of settling the Question of EU Membership and then Judges set aside the result and say that, in fact, another law is needed... is this not a problem?

The Argument is legal positivism vs legal negativism. I.e. if it was understood that the government would follow the Referendum result when Parliament passed the Act is that sufficient, or does the requirement have to be written into the Act?

Also - can Parliament set aside the will of the people?

[Montmorency]

Not really. If it is understood to be binding, then that should be explicit in the first place. You said it was not specified either way when the referendum was granted.

Will of the people is irrelevant in the first place, and in the second place as well since the referendum was on "Leave or Remain", not any specific procedural sequence. How the state goes about it has no bearing on the will of the people via the referendum, nor vice versa.

[Furunculus]

Also - can Parliament set aside the will of the people?

Yes, of course they can. At their peril!

We have just had Nov5th if you'll recall, a warning for a parliament that fails to represent as much as a celebration of the survival of our parliament from existential threat.

The Argument is legal positivism vs legal negativism. I.e. if it was understood that the government would follow the Referendum result when Parliament passed the Act is that sufficient, or does the requirement have to be written into the Act?

Interesting, expand on that if you would please?

A Sarmation - I always admire a chap who quotes A.V. Dicey. ;)
He was incidently, grudgingly accepting of referenda as a valid mechanism to decide matters of deep constitutional importance that cut across party lines - in a way that no party is likely to oppose the other allowing normal parliamentary democracy to decide the issue.