Britain’s Constitutional Crisis

 

https://www.youtube.com/watch?v=BIWmIb0NnFk

The leading candidates to replace David Cameron as leader of the Conservative Party, Michael Gove and Theresa May, have both said they won’t trigger the Article 50 process until the end of the year. This has annoyed François Hollande, who responded much like a woman whose husband tells her he’s leaving her but refuses to move out. “The decision has been taken,” he said, “it cannot be delayed and it cannot be cancelled. Now they have to face the consequences.” A speedy Brexit, he said, “would avert all the uncertainties and instability, especially in the economic and financial domains. The faster it goes, the better it will be for them.”

The problem is that it can be delayed and it can be cancelled — constitutionally speaking, anyway. Article 50 states that a government planning to leave the EU shall notify the EU “in accordance with its own constitutional requirements.” There is no legal precedent, because it’s never been invoked before, but it’s very clear that only the nation planning to leave the EU can trigger the process.

While the referendum clearly calls for Britain to withdraw from the EU, it offers no guidance about the terms of that withdrawal. The Leave campaign argued that the EU would immediately sign a favorable trade deal with the UK, given that this would be in everyone’s interests. They dismissed the suggestion that the EU might be unwilling to do this as scaremongering. But they seem to have been wrong. Jean-Claude Junker, at least, has said there can be no exit deal that gives the UK access to the single market unless it is willing to accept the free movement of labor. And it makes good sense for France to hold fast. Hollande is trailing in the polls and facing primary and national elections; it’s in his interests to look tough and to persuade as many companies as possible, particularly in the financial services industry, to relocate to Paris.

While the referendum made it clear that the majority of Britain wants to leave the EU, it says nothing about whether the government should accept a deal in which Britain keeps access to the market and accepts free movement.

The situation is particularly fraught because it’s now so clear that Boris Johnson never really meant for Leave to pass. His plan, it now seems, was to use a narrow victory for Remain as leverage for a better deal with the rest of Europe. He envisioned challenging Cameron as the plucky loser of the Brexit bid. His miscalculation, in Tory elder Michael Heseltine’s words, has generated “the greatest constitutional crisis of modern times.”

What does that mean? If a state has no written constitution, how can it have a constitutional crisis?

The constitutional crisis involves trying to figure out who, exactly, has the power to withdraw from the EU. The referendum was merely “advisory,” it didn’t automatically trigger Article 50. But who is it advising? Did it advise the Prime Minister? If so, would he or she have the authority to leave the EU on Britain’s behalf? Or does it advise Parliament? No one is quite sure.

There are, however, key constitutional principles at stake. According to the UK Constitutional Law Association,

the Prime Minister is unable to issue a declaration under Article 50 of the Lisbon Treaty – triggering our withdrawal from the European Union – without having been first authorised to do so by an Act of the United Kingdom Parliament.  Were he to attempt to do so before such a statute was passed, the declaration would be legally ineffective as a matter of domestic law and it would also fail to comply with the requirements of Article 50 itself.

They argue that without Parliament’s backing, the prime minister would be exercising so-called royal prerogative powers, a collection of executive powers held by the Crown since the middle ages and now in the hands of ministers. These are often used in foreign affairs. But case law, they say, establishes that these executive powers can’t trump an act of Parliament. Legislation, in other words, can only be changed by legislation:

The relationship between statute and the prerogative has long been contentious, and up until quite recently – the 1980s – it was arguable that the exercise of prerogative powers (though not their existence) was beyond the capacity of the court to review; the King could do no wrong.  Whilst the courts might not have been able to review its exercise, they certainly could and did rule on whether the prerogative contended for by the Crown existed in the first place.  One of the earliest limits on the prerogative was that it could not be used to undermine statutes; where the two are in tension, statute beats prerogative.

Case law is key to the separation of powers in the British Constitution. The seminal case was the 1610 Case of Proclamations. The Government cannot take away rights given by Parliament and cannot undermine a statute. “For the courts to hold otherwise,” they write, “would place the rights of British citizens at the mercy of the Government and would be contrary to Parliamentary supremacy.”

The “obvious intention” of the 1972 European Communities Act, they continue, is to ensure the UK’s membership of the EU and for the EU Treaties have effect in domestic law. Section 2 of the Act provides that “all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the EU Treaties are part of UK law.” Triggering Article 50 would invalidate the Act, and would thus end in the loss, to British citizens, of EU rights. It would also strip British citizens of their rights in relation to the European Parliament, such as the right to vote and to stand in European elections. The Government, they argue, cannot unilaterally strip these rights from British citizens. It can only do so with parliamentary approval.

Other legal scholars base an argument to the same effect on the 2011 European Union Act:

In constitutional terms, this section forms the bedrock of the mechanism for ratifying changes in the UK’s relationship with the European Union, and at the Bill’s Second Reading it was expressly conceded that it would affect the prerogative. The mechanism it envisages is one of dual consent. The consent of the electorate through a referendum is sometimes necessary, but never sufficient. The 2011 Act does not make referendum results automatically binding (in contrast with, for example Section 8 of the Parliamentary Voting System and Constituencies Act 2011). Parliament is, of course, unlikely to ignore the will of the electorate, but it might (and arguably should) use its powers to impose conditions and safeguards, procedural or substantive, on the manner in which the consequences of a vote in a referendum are dealt with.

It has long been accepted constitutional practice, they note, to secure parliamentary consent for matters where there was genuine doubt, even if slight, about the scope of the prerogative. This seems obviously to be such a case.

It gets even more complicated when you consider that a great deal of EU legislation has been incorporated into British law and tested in the courts. It’s thus part of case law, now. This means that even if a statute is removed, its principles would remain in force:

“If some EU law is retained in domestic law post-withdrawal, what would be the mechanisms used to interpret it?” said Prof Douglas-Scott. “Would UK courts revert to pre-1972 understandings of UK law, or would they continue to look at EU law and decisions of the European Court of Justice to interpret British law?”

Furthermore, new domestic laws would have to be introduced to fill gaps where the EU currently has competence — for example, in the licensing of medicines — added Prof Douglas-Scott.

Whatever type of legal divorce takes place post-Brexit, it will tie up resources for years to come. “You have to think of it as a reverse accession [to the EU]. It’s the whole of the civil service for a decade,” said Mr Gleeson.

It’s particularly complicated for the Conservatives, not least because most of them are against leaving the EU and see it as a one-way ticket into the abyss. The overwhelming majority of the financial and business community wants to keep free access to Europe’s single market, but there’s no way this will happen unless Britain accepts the great majority of EU rules and accepts the free movement of workers. The agenda of the party’s funders, in other words, is at odds with the agenda of the people who voted to Leave.

So what odds do you give that no one ever triggers Article 50?

 

Tags:

There are 266 comments.

Become a member to join the conversation. Or sign in if you're already a member.
  1. Dave Sussman Contributor
    Dave Sussman
    @DaveSussman

    Thank you for what is the best overview I have read of the challenges facing England.

    As your Churchill clip shows the hope of a United States of Europe was an ideal that goes back many moons.

    Unfortunately, like the League of Nations, the EU experiment has caused such bitterness because it failed to represent the people.

    I would guess that it was never the intention of the original EU proponents to create such a bloated centralized bureaucratic jigsaw puzzle which ultimately turned the European collection into an unsustainable economic quagmire forcing it’s richer counterparts to foot the bill for wrongheaded social contracts.

    And yet even in the face of the alarming cultural shift in Europe, under the guise of compassion Germany and Brussels continued it’s doubling down of stupid.

    This was not the Europe that Sir Winston would have wanted and while a UK restructuring takes place, maybe it will wake up the elitists who face a dominos of other dissatisfied member clients.

    • #1
  2. BrentB67 Inactive
    BrentB67
    @BrentB67

    I agree with France and others. The decision has been made and should proceed apace and in good faith.

    Regarding this constitutional crisis in Britain. I am not an expert, but even this layman seems to recall that one of the things that make British governance unique is the absence of a written constitution. If that is still the case how can there be a constitutional crisis?

    • #2
  3. cdor Member
    cdor
    @cdor

    So now it seems that Parliament must vote an Article 50 notice to withdraw or intentionally ignore the vote of the people.  If they don’t, the people will then have to remove the members of Parliament and vote in one that will pass an Article 50. Hollande does not have a say and cannot determine the time table for the British people, no matter how blustery he behaves. And the EU cannot do anything either. What would they do, punish the Brits for daring to vote? And as long as Great Britain doesn’t invoke Article 50 they are still a member of the EU.

    So does the will of the people prevail, as in a certain primary election here in the USA, or will the losers find ways to establish enough roadblocks to prevent the peoples choice? In the Brexit vote nobody I read expected the actual separation to happen overnight for all the reasons cited in Claire’s post, but they do expect it will happen eventually.

    • #3
  4. Richard Finlay Inactive
    Richard Finlay
    @RichardFinlay

    Claire Berlinski, Ed.: So what odds do you give that no one ever triggers Article 50?

    About 80-20.  Delaying for 6 months will allow for a major propaganda campaign.  If Parliament votes to remain and the press reports it “properly” the Conservative government should even survive.  They have many routes to justify doing this if the propaganda seems insufficient.  A repeat referendum, now that they know where they need to get out more votes, or even a general election where the major parties both campaign on remaining.  They may even be able to negotiate a face-saving deal with the EU to make the case that leaving is no longer necessary.  Even if there are riots in the streets, that would become a reason for ignoring the plebiscite as they are clearly not capable of rationality.

    So, I don’t have a lot of confidence that the EU will not continue to destroy itself instead of learning something from the mini-revolt.

    • #4
  5. Frank Soto Contributor
    Frank Soto
    @FrankSoto

    Claire Berlinski, Ed.: They dismissed the suggestion that the EU might be unwilling to do this as scaremongering. But they seem to have been wrong. Jean-Claude Junker, at least, has said there can be no exit deal that gives the UK access to the single market unless it is willing to accept the free movement of labor. And it makes good sense for France, at least, to hold fast. Hollande is trailing in the polls and facing primary and national elections; it’s in his interests to look tough and to persuade as many companies as possible, particularly in the financial services industry, to relocate to Paris.

    Trade Wars with Britain are as damaging to the EU as they are to Britain. Now they might be stupid enough to impose tariffs on Britain, but there are no circumstances where it’s a good idea and in their own interest.

    There’s also a lot of ground in between completely free trade and trying to exclude Britain entirely from the European market. So far there’s been a lot of tough talk from EU leaders but much of that is likely to give way to reality.

    And should it not give way to reality, then this is a group of leaders who you do not want to have any authority over your country.

    • #5
  6. Zafar Member
    Zafar
    @Zafar

    They need an election, and if enough people have the stones to elect UKIP they can get a Parliament that’ll vote to give them Brexit.

    (Assuming that Labour and the Conservatives have the stones to run on a remain platform.) (And the brains.  I’m looking at you, Boris.)

    • #6
  7. BrentB67 Inactive
    BrentB67
    @BrentB67

    Frank Soto:

    Claire Berlinski, Ed.: They dismissed the suggestion that the EU might be unwilling to do this as scaremongering. But they seem to have been wrong. Jean-Claude Junker, at least, has said there can be no exit deal that gives the UK access to the single market unless it is willing to accept the free movement of labor. And it makes good sense for France, at least, to hold fast. Hollande is trailing in the polls and facing primary and national elections; it’s in his interests to look tough and to persuade as many companies as possible, particularly in the financial services industry, to relocate to Paris.

    Trade Wars with Britain are as damaging to the EU as they are to Britain. Now they might be stupid enough to impose tariffs on Britain, but there is no circumstances where it’s a good idea and in their own interest.

    There’s also a lot of ground in between completely free trade and trying to exclude Britain entirely from the European market. So far there’s been a lot of tough talk from EU leaders but much of that is likely to give way to reality.

    And should it not give way to reality, then this is a group of leaders who you do not want to have any authority over your country.

    Great words Frank. I agree. Both EU and UK are debt ridden welfare states incapable of executing a trade war.

    • #7
  8. Mr Nick Member
    Mr Nick
    @MrNick

    Very interesting post.

    A few points. Listening to Michael Heseltine is a dangerous business as he has always put his europhile instincts before country or even party. He has been touring the studios trying to turn Project Fear’s feedback loop into a self fulfilling prophecy. Like Mr Tony Blair, he is trying to keep Britain in the EU, but neither are elected officials any longer.

    All the leadership candidates for the Conservative Party have made it clear that “Brexit means Brexit”.

    Tory MPs were actually pretty evenly split. You also have to factor in the government’s payroll vote not proclaiming their loyalty to an anti-government policy. Unlike grandees such as Mr Heseltine, the MPs see the referendum as the final lancing of the European boil. It is the nature of the future relationship with the EU that will be played out throught the leadership contest of which the party members, overwhelmingly for Leave, will vote. So long as there is no ‘coronation’ and the elevation of the new leader is not seen as an establishment stitch up, the process will marry the referendum to the Parliamentary system. A new leader would have a Parliamentary majority. With Remainers signing up to Michael Gove’s campaign and Leavers leading Theresa May’s, you have the evidence that it will happen.

    Constitutionally it is a quagmire. However there are many ways round that. Sir Bill Cash, chair of the European Scrutiny commitee has proposed the elegant solution of repealing the 1972 act and immediately passing another ratifying all acts since 1972 into UK law. Therefore de-regulation can be done on a case by case basis. David Davis MP is another who has thought long and hard about this. Whether Article 50, otherwise known as playing by the EU’s rules, is even necessary is another matter.

    The media have gone into hysteria since the result, aided by all the children serving in the political class. The constant ‘there is no plan’ claim has to be put into context: The Leave campaign was a coalition, not an alternative government; those who do have a plan are not in power. It will all be resolved in time, in Britain it is known as keeping a stiff upper lip.

    • #8
  9. Columbo Member
    Columbo
    @Columbo

    BrentB67:I agree with France and others. The decision has been made and should proceed apace and in good faith.

    Regarding this constitutional crisis in Britain. I am not an expert, but even this layman seems to recall that one of the things that make British governance unique is the absence of a written constitution. If that is still the case how can there be a constitutional crisis?

    I cannot bring myself to ever say … “I agree with France”.

    And thankfully I don’t. I much prefer Claire’s analogy of Hollande’s whininess to that of a pouting jilted wife. Triggering Article 50 is a decision which is solely England’s to make. Thanks, but no thanks for your opinion France.

    However, since the Brexit referendum has no legal standing for this purpose … one wonders why the British Government ever let it get this far. Parliament must decide this since “in Britain, Parliament is sovereign”.

    And surely this will be a most contentious fight. The entire world is dramatically polarized. The U.S. is not alone in this fact. Whether the decision is Brexit, the election of the POTUS or who should win Dancing with the Stars, we are greatly divided. Passionately. Loudly.

    How will it end? Viva la Revolution? Or not?

    • #9
  10. Leigh Inactive
    Leigh
    @Leigh

    The Conservatives are in power, and a Tory government that did not deliver Brexit at this juncture would fail — and they know it. Theresa May would trigger Article 50.

    • #10
  11. Dave Sussman Contributor
    Dave Sussman
    @DaveSussman
    • #11
  12. Claire Berlinski, Ed. Editor
    Claire Berlinski, Ed.
    @Claire

    BrentB67:I agree with France and others. The decision has been made and should proceed apace and in good faith.

    Regarding this constitutional crisis in Britain. I am not an expert, but even this layman seems to recall that one of the things that make British governance unique is the absence of a written constitution. If that is still the case how can there be a constitutional crisis?

    That’s the question I was trying to answer, but obviously didn’t succeed if it left you with the same question in the end! To put it a different way, the “constitution” in Britain is the weight of legal and social precedent — and “constitutionality” is assessed by obtained through reading commentary by the judiciary or government committees. When you have a situation like this one, though, it could be argued that there simply isn’t any precedent.

    • #12
  13. Mendel Inactive
    Mendel
    @Mendel

    BrentB67: I agree with France and others. The decision has been made and should proceed apace and in good faith.

    I agree with Claire on this one.

    The referendum was legally non-binding and merely “advisory”. So as far as France or the EU are concerned, it never even took place. Hollande et al. can watch and observe, but can’t do anything until they get served official notice from Britain.

    • #13
  14. Dave Sussman Contributor
    Dave Sussman
    @DaveSussman

    Mr Nick: The media have gone into hysteria since the result, aided by all the children serving in the political class. The constant ‘there is no plan’ claim has to be put into context: The Leave campaign was a coalition, not an alternative government; those who do have a plan are not in power. It will all be resolved in time, in Britain it is known as keeping a stiff upper lip.

    Friends and family in UK have been nothing short of crazed over this result. They truly believe this nothing more than racism and xenophobia. It’s hard to break through their overwrought propaganda with economic realities. It’s very similar what we see here in the States when discussing issues with the Left.

    • #14
  15. BrentB67 Inactive
    BrentB67
    @BrentB67

    Claire Berlinski, Ed.:

    BrentB67:I agree with France and others. The decision has been made and should proceed apace and in good faith.

    Regarding this constitutional crisis in Britain. I am not an expert, but even this layman seems to recall that one of the things that make British governance unique is the absence of a written constitution. If that is still the case how can there be a constitutional crisis?

    That’s the question I was trying to answer, but obviously didn’t succeed if it left you with the same question in the end! To put it a different way, the “constitution” in Britain is the weight of legal and social precedent — and “constitutionality” is assessed by obtained through reading commentary by the judiciary or government committees. When you have a situation like this one, though, it coul be argued that there simply isn’t any precedent.

    I agree with your well written argument that there isn’t any precedent.

    Just my lay opinion, but I don’t think it is a constitutional crisis absent a constitution. I think it is a political crisis and one that has been going on a while.

    I don’t share you concern that at the Prime Minister does not have the authority to trigger an Article 50 action absent parliamentary support. I think the weight of the referendum is sufficient and appears acceptable judging by the reaction of EU leadership.

    • #15
  16. Claire Berlinski, Ed. Editor
    Claire Berlinski, Ed.
    @Claire

    Leigh:The Conservatives are in power, and a Tory government that did not deliver Brexit at this juncture would fail — and they know it. Theresa May would trigger Article 50.

    What complicates this is Labour’s making itself even more unelectable: The overwhelming majority of the party voted to oust Corbyn, but he’s refused to step down!

    • #16
  17. BrentB67 Inactive
    BrentB67
    @BrentB67

    Claire, to add an example to the frustration about the weight of law in Britain as it relates to this situation. We often discuss the possibility (one can dream) of Texas secession.

    There are no articles or guidance in the Texas Constitution addressing the matter. However, we are seeing some support and early momentum for a plank in the Republican platform and possibly a non-binding referendum at some point. If that referendum were to somehow pass, then what?

    • #17
  18. HVTs Inactive
    HVTs
    @HVTs

    Claire Berlinski, Ed.: While the referendum made it clear that the majority of Britain wants to leave the EU, it says nothing about whether government should accept a deal in which Britain keeps access to the market and accepts free movement.

    Says nothing?  It’s true that no words specifically address terms of departure.  But this is politics.  The voters have said quite a bit about living under EU rule and a major aspect of that—as every sentient Brit understood—was “free movement.”  So, it’s beyond churlish for politicians to claim now they’ve no basis for discerning the People’s will here.  Whether or not the People’s will matters is—as always in the UK—for elected MPs to decide.

    The lesson in all this is about sovereignty.  Is the Crown still sovereign?  Mostly no.  Is the Parliament sovereign?  Sorta yes, sorta no.  Does the PM hold certain royal prerogatives (royal being a synonym for sovereignty in this case, although maybe there’s a Legal Beagle out there who should school me on that)?  Sorta yes, sorta no.

    The U.S. was founded on the notion that We the People are sovereign.  Yet we’ve relinquished that sovereignty to Washington every bit as much as Brits relinquished theirs to Brussels.  Establishing sovereign power is what political revolutions are about. It’s usually a bloody affair.  When you cede your sovereignty to others, it takes a revolution to restore it. That’s the Brexit lesson for us.

    • #18
  19. Columbo Member
    Columbo
    @Columbo

    BrentB67:Claire, to add an example to the frustration about the weight of law in Britain as it relates to this situation. We often discuss the possibility (one can dream) of Texas secession.

    There are no articles or guidance in the Texas Constitution addressing the matter. However, we are seeing some support and early momentum for a plank in the Republican platform and possibly a non-binding referendum at some point. If that referendum were to somehow pass, then what?

    Brent – by chance, is there a Ft. Sumter in Texas?

    • #19
  20. Claire Berlinski, Ed. Editor
    Claire Berlinski, Ed.
    @Claire

    BrentB67: Just my lay opinion, but I don’t think it is a constitutional crisis absent a constitution.

    There is a constitution, but it’s unwritten. (That link explains what they mean by that.) It exists in the sense that Britain has constitutional lawyers; that its courts will strike down unconstitutional laws, and so forth. The word “unconstitutional” does have a meaning, so it’s possible to have a constitutional crisis.

    • #20
  21. Leigh Inactive
    Leigh
    @Leigh

    Claire Berlinski, Ed.:

    Leigh:The Conservatives are in power, and a Tory government that did not deliver Brexit at this juncture would fail — and they know it. Theresa May would trigger Article 50.

    What complicates this is Labour’s making itself even more unelectable: The overwhelming majority of the party voted to oust Corbyn, but he’s refused to step down!

    Which creates its own constitutional crisis, or at least exposes tension between the parliamentary system and the Labour Party structure: there’s no precedent for a leader to operate without the confidence of his MPs, and yet as of yet the MPs can’t get rid of him.

    • #21
  22. cdor Member
    cdor
    @cdor

    BrentB67:Claire, to add an example to the frustration about the weight of law in Britain as it relates to this situation. We often discuss the possibility (one can dream) of Texas secession.

    There are no articles or guidance in the Texas Constitution addressing the matter. However, we are seeing some support and early momentum for a plank in the Republican platform and possibly a non-binding referendum at some point. If that referendum were to somehow pass, then what?

    I am not an Historian, but wouldn’t that initiate a Civil War? I don’t think the Texas situation, although it was initially a commonwealth, is exactly the same as Great Britain vis a vis Europe. But it is getting too close to the same for comforts sake.

    • #22
  23. Mendel Inactive
    Mendel
    @Mendel

    HVTs:The lesson in all this is about sovereignty. Is the Crown still sovereign? Mostly no. Is the Parliament sovereign? Sorta yes, sorta no. Does the PM hold certain royal prerogatives (royal being a synonym for sovereignty in this case, although maybe there’s a Legal Beagle out there who should school me on that)? Sorta yes, sorta no.

    The U.S. was founded on the notion that We the People are sovereign. Yet we’ve relinquished that sovereignty to Washington every bit as much as Brits relinquished theirs to Brussels. Establishing sovereign power is what political revolutions are about. It’s usually a bloody affair. When you cede your sovereignty to others, it takes a revolution to restore it. That’s the Brexit lesson for us.

    But the second lesson here is that orderly process matters.

    We the people may be sovereign, but does that mean that simple majority opinion among the people should force laws to be made?

    What would happen if Obama held a national, non-binding referendum next week about gun control? Based on public polling, he could probably get a victory for certain measures like universal background checks or even mandatory registration.

    Should we disregard the 2nd amendment and Congress just because a majority of the public wants a law?

    • #23
  24. BrentB67 Inactive
    BrentB67
    @BrentB67

    Columbo:

    BrentB67:Claire, to add an example to the frustration about the weight of law in Britain as it relates to this situation. We often discuss the possibility (one can dream) of Texas secession.

    There are no articles or guidance in the Texas Constitution addressing the matter. However, we are seeing some support and early momentum for a plank in the Republican platform and possibly a non-binding referendum at some point. If that referendum were to somehow pass, then what?

    Brent – by chance, is there a Ft. Sumter in Texas?

    Not that I know of.

    If such a thing were to occur now I think it looks more like soft tyranny and war by regulatory fiat that finally trips the wire.

    • #24
  25. BrentB67 Inactive
    BrentB67
    @BrentB67

    cdor:

    BrentB67:Claire, to add an example to the frustration about the weight of law in Britain as it relates to this situation. We often discuss the possibility (one can dream) of Texas secession.

    There are no articles or guidance in the Texas Constitution addressing the matter. However, we are seeing some support and early momentum for a plank in the Republican platform and possibly a non-binding referendum at some point. If that referendum were to somehow pass, then what?

    I am not an Historian, but wouldn’t that initiate a Civil War? I don’t think the Texas situation, although it was initially a commonwealth, is exactly the same as Great Britain vis a vis Europe. But it is getting too close to the same for comforts sake.

    It depends on the reaction of America. If they take the attitude of fine, leave. Then no. If they try to impose some kind of extra Constitutional martial law or something to stop it then quite possibly, yes.

    • #25
  26. Claire Berlinski, Ed. Editor
    Claire Berlinski, Ed.
    @Claire

    HVTs: Says nothing? It’s true that no words specifically address terms of departure. But this is politics. The voters have said quite a bit about living under EU rule and a major aspect of that—as every sentient Brit understood—was “free movement.”

    Sure, but the Leave campaign assured voters that it would be possible to retain access to the single market. The referendum didn’t ask them to order their preferences — Parliament doesn’t know whether the electorate would prefer, “Complete access to the single market, free movement of labor,” “No access to the market [beyond WTO standards] and no movement of labor,” or “Something in between.” That’s why some are calling for another referendum after the negotiations — so that the final deal has democratic legitimacy.

    • #26
  27. Viator Inactive
    Viator
    @Viator

    “Tony Blair today claimed Britain should not quit the EU if the ‘will of the people’ changes as a Brexit deal is negotiated.

     the ex-Labour PM said Britain should ‘take its time’ over leaving to ‘keep its options open’.

     Mr Blair said the Prime Minister and Chancellor should be touring European capitals to get a sense of the politics and ‘room for manoeuvre’.

    He said: ‘In the immediate aftermath of the vote, there’s a certain hostility but we‘ve got to treat this like a vast campaign for our national interests. The referendum expressed the will of the people.

    ‘But the will of the people is entitled to change.”

    Theresa May told ITV the process (Article 50) should not begin until the UK had established its own negotiating position.

    May said: ‘I don’t think it’s possible to say that there’s an absolute deadline.’

    Angela Merkel is all for slow walking this one to death. “Angela Merkel hopes that Britain’s exit from the European Union can be reversed” Washington Post

    Watch Brexit morph into Bremain.

    • #27
  28. HVTs Inactive
    HVTs
    @HVTs

    Mendel:

    HVTs:

    The U.S. was founded on the notion that We the People are sovereign. Yet we’ve relinquished that sovereignty to Washington every bit as much as Brits relinquished theirs to Brussels. … When you cede your sovereignty to others, it takes a revolution to restore it. That’s the Brexit lesson for us.

    But the second lesson here is that orderly process matters.

    We the people may be sovereign, but does that mean that simple majority opinion among the people should force laws to be made?

    What would happen if Obama held a national, non-binding referendum next week about gun control? Based on public polling, he could probably get a victory for certain measures like universal background checks or even mandatory registration.

    Should we disregard the 2nd amendment and Congress just because a majority of the public wants a law?

    Yes, and our orderly process—the Constitution—is written.  States hold referenda if they so choose, but there’s no such thing as a national referendum.  [Perhaps it’s better to say that to the extent one exists it’s called the U.S. Congress, leavened by Presidential elections.]  That is precisely the People’s sovereign power at work: Holding a national referendum because a President thinks it will benefit his policy preferences isn’t possible because the People did not chose to grant him that option.  You can’t (legally) disregard the Constitution because a plebiscite indicates it would be popular to do so.

    • #28
  29. Eric Hines Inactive
    Eric Hines
    @EricHines

    Some idle thoughts….

    Claire Berlinski, Ed.: This has annoyed François Hollande, who responded much like a woman whose husband tells her he’s leaving her but refuses to move out. “The decision has been taken….”

    Not so much.  Hollande is only showing his ignorance of the UK constitution.  No decision has been taken until Parliament acts.  I’ll come back to this.

    Hollande and Juncker and their fellows are only showing their petty pique.  Whether or not the Leaves had any coherent plan for the results of winning the referendum certainly is their problem, but it’s being deliberately (I say) exacerbated by Hollande, et al., with their refusal to talk with the Brits until Article 50 is invoked.  If they were truly interested in a fast resolution, they’d agree promptly on a framework for the talks, and even conduct them promptly, so that when Article 50 is invoked the claimed desire for a fast resolution could be effected–would, in fact, be a fait accomplis.

    To stretch your analogy a bit, it’s more like the woman refuses to sign the divorce papers with which she’s been served, so the husband decides not to move out of their still-married abode just yet.

    Claire Berlinski, Ed.: They argue that without Parliament’s backing, the prime minister would be exercising so-called royal prerogative powers

    This, I think, is another misunderstanding.  Without Parliament’s authorization, the PM would be acting royally on this.  That brings me to the “this” to which I said I’d come back.  Hollande, Juncker, Brussels, and their fellows are showing the mindset and suffering the results of the EU’s fundamentally anti-democratic philosophy of governance.

    There is no EU constitution because too many countries on the continent kept voting down proposed versions–by national referenda, wherein the people were making the decision.  You have only to review the debate over the ratification of our own Constitution (The Federalist Papers and The Anti-Federalist Papers would be a good place to start) to see why.  That debate was among 13 States that fundamentally agreed among each other, and it still was a near-run thing.  The continent didn’t, and doesn’t have that.  Be that as it may, given that the people kept saying, “No,” the Powers That Be decided, quite cynically, to overrule them and to create the EU by binding treaty (three of them, in fact) among the governments–the peoples’ decisions be damned.

    Since the Brits joined the EU by agreeing to those treaties and not by ratifying a constitution, it’s not up to the people of Great Britain to Leave: only Parliament can make the decision to abrogate those treaties.

    To answer the OP question, I put the odds that it will not be invoked at 0.  The Brits’ statement that they won’t invoke it until after the end of the year stands in contraposition to the EU’s position of no talk until after Article 50–which is a refusal designed entirely by Brussels to stir up exactly the economic, business, and political uncertainty they’re pretending to be wanting to avoid so as to maximize the likelihood of business–especially financial business–fleeing to the continent (or to Ireland).  Aside from gaining politically on a personal basis from succeeding in creating the stampede, this is further to punishing the Brits for their effrontery.

    Eric Hines

    • #29
  30. Addiction Is A Choice Member
    Addiction Is A Choice
    @AddictionIsAChoice

    Claire Berlinski, Ed.:

    BrentB67: Just my lay opinion, but I don’t think it is a constitutional crisis absent a constitution.

    There is a constitution, but it’s unwritten. (That link explains what they mean by that.) It exists in the sense that Britain has constitutional lawyers; that its courts will strike down unconstitutional laws, and so forth. The word “unconstitutional” does have a meaning, so it’s possible to have a constitutional crisis.

    We see daily the mischief lawyers can create with statutes that are written down; I can just imagine the mayhem possible when they are free to read between the lines of that which is unwritten.

    • #30

Comments are closed because this post is more than six months old. Please write a new post if you would like to continue this conversation.