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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?
Published in General
“…and, while guided and controlled by virtue, the noblest attribute of man. It is the only dictator that freemen acknowledge and the only security that freemen desire.”
I guess it depends how the debate goes. Hard to say until you actually come to it. It is all talk until you try to secede, then I guess Pandora’s Box is open again and we see what comes out. Last time it wasn’t pretty.
Seriously. What “debate” do you imagine that’s going to motive a 23 year old from Minneapolis, Toledo, Bangor, or wherever to pick up a rifle and go risk getting killed so that Texas stays in the Union? It’s laughable. Most Americans can’t locate their State Capitol on a map. You think some millennial twerp is going to risk getting his head blown off over Texas?
I think you’ve not factored in how different 2016 is from 1861. A lot changes in 155 years. Imagine how an 1861 20-something would feel about the wars waged 155 years prior—that’s 1706. Yeah, our Civil War is as remote to today’s young men as the War of the Spanish Succession was to the young men of 1861.
I think you are underestimating the conception of nationhood of Americans at the national level vs the state level. Sure some (because its not 100% and its not 0%) Texans view themselves as belonging to a collective known as Texas, but many probably do not.
That creates an avenue for the state to split during an attempt at secession. Along what lines I do not know, but to assume Texas is full of perfectly like minded people is being fanciful. Second consideration is how Texas secedes. If it is violent even in the most minute way. Like an attack a federal post office or a military site then its Fort Sumter all over again.
Third is the impact an exit from Texas would have economically on the state. Texas is obviously a growing economy with some natural resources and one of the more free economies in the nation, but as we know the federal government has no issue with trying to dominate the market to certain goals.
Aside from military bases being closed, much state economic traffic could be moved away from Texas to its neighbors by federal and state regulation no doubt and that would mean drastic cuts in trade between Texas and its neighboring states. This being in addition to a cut off of federal grants to the state of Texas. There would at least in the short run be severe economic cuts.
Fourth is what is the fate of federal property in Texas when it secedes? Is military personnel and their equipment seized by Texans? Even if done peacefully that is more than enough grounds for the sparking of a Civil War and it would end badly for Texas.
Also remember that many a military in history have undergone drastic changes in from honorable to vicious in little time. During WWI the German military was noted as rather honorable and well behaved on the eastern front. By 1941 however, it was capable of incredibly depraved acts as we know from their assistance to the einsattzgruppen.
The dictionary with the strongest brand is the OED. That says that the United Kingdom’s constitution is a constitution. Wiktionary is possibly the most comprehensive, and says likewise. Before the entries, Google gives a definition that agrees with both. It’s top hit for me is dictionary.com, likewise. After that comes Merriam Webster, which coheres with the rest. What online dictionaries did you use?
They can’t make separate trade agreements while part of the EU; trade is a federal competency. It is devoutly to be wished that there will be trade agreements with the US, Canada, and Australia within days of the timer running out, though.
And you think Texans are better than the general population in any of these respects? You ask what debate will move an Ohioan to fight to keep Texas in the Union. I imagine it will be the same debate that would move a Texan to vote for secession. Under your conception of this I expect that there would be some sort of debate in Texas about this move. That will not be isolated, not in this day and age. Considering the ramifications of the action I would reasonably expect that the debate would be vigorous and strong opinions will be formed.
As I asked on other threads where this topic arose. What happens if various counties across Texas decide to ignore the will of the Texas government? What will Texas do then to enforce secession? All of these people remember will be US citizens. Will Texas cops arrest or shoot Texans that refuse to obey the secession statues? What should the US government do to protect it citizens in Texas if the Texas government decides to impose secession by force on Dallas or Austin? Will you let them just breakaway from Texas to avoid conflict with the US?
Would proposing such a move in the Texas legislature be grounds for federal prosecution for sedition? I imagine that could be a real sticking point in any unilateral attempt for secession.
A serious UKIP vote is just about the only thing that might see a Remain vote do decently. Fortunately, Farage appears to be purging the party; if he kicks out the party’s only MP for being insufficiently supportive, that will go a long way to helping smooth the way.
The Conservatives will not run on a remain platform. No major Conservative figure has called for that.
I recognize that it’s Buzzfeed, but this is pretty good at explaining. Leave won in 421 seats. Remain won in 229. Northern Ireland aside, those remain votes would be heavily contested by Labour, the Lib Dems, the SNP, and Plaid. Not only has no major Conservative come out for ignoring the referendum, there is essentially no motivation for them doing so. If the Labour base is powerful enough to force Labour into running on that as an issue, we’ll have the most powerful Conservative government since 1826 (not counting Baldwin’s National Government).
I don’t think this is clear. I think it’s a Remain fantasy.
There are certainly Remain backers in the City, but there are also plenty of Leave backers in the donor community. More importantly, donors aren’t the whole ball game. Votes matter, too, which is why the Conservative Party is not split in the manner of the other parties between people who want to respect the Referendum (all Conservatives, most Labour), and those who want to supersede the judgment of the people (some Labour, most Lib Dems, most SNP). You will note that Conservatives alone have the votes to pass it. As things stand, it seems exceptionally unlikely that there will be a less than a hundred vote majority support for it.
5% seems plausible; more important assassinations or some other kind of incredibly dramatic news might change things. It’d need to be something genuinely shocking, though.
The argument I was making wasn’t about Texans. It was about non-Texans. My premise was that the only reason the North in 1861-1865 could impose the view that secession was rebellion instead of just a state’s inherent right to self determination, was that hundreds of thousands of Northerners were willing to fight, kill and die to enforce it. I’m skeptical that any significant number of non-Texans will ever be motivated to do the same now against Texas.
As to Texans, we agree it’s unknown how many would fight for the state’s sovereignty. Texans have a proud tradition of independence, self-reliance, the principled defense of liberty . . . and self-defense through the application of firepower. So they’ve got the fundamentals. They’d have the incentive of upholding cherished ideals and a bright economic future (world’s 12th largest economy). Their opponents would have to overcome the psychological hurdle of imposing beliefs on aggrieved victims.
Still, the same macro-logic applies to Texans … is it really worth dying over? How many will believe that? No one can know until the first body bags are filled.
Personally, I think there’s a less than 1/100th of one percent chance Texas secedes. Which is why although the issue of secession is fascinating from a Constitutional Law perspective, beyond that it’s crazy talk.
I also think it’s valid to reason directly from the definition of “to constitute something”. For a nation to be constituted of its parts is to have a form given by law. The form needn’t be described in a document. Also, the distinction is still made from time to time by describing our Constitution as a “written Constitution”. The qualifier isn’t superfluous.
No, not any better . . . just facing a completely different set of incentives and, therefore, personal motivations. It will be a completely different debate that motivates Texans as opposed to non-Texans to pick up weapons and kill people. When you are defending your home you are not motivated in the same way as when you are attacking someone else’s home.
Having said all that, my previous reply to Could Be Anyone is more salient . . . this is all crazy talk . . . ain’t nobody gonna do no seceding anytime soon.
Now, if Hillary wins . . . {:-))
Of course it’s ludicrous to think 25 million Texans all think alike. Who says that? Again, the probability of secession is not measurable it’s so small. There might be people willing to tell a pollster they’ll support it. But actually pick up a weapon and risk their life over it? Nonsense. And that’s in part for reasons Valiuth highlights … are people really going to start shooting their neighbors over this? It’s not going to happen!
It’s a fun topic in no small part, however, because many people in 1860 expressed the same sentiments as I just did. The difference is 155 years have passed, the culture has completely changed, and there’s no great moral cause like abolition fanning passions.
What remains is the Constitutional issue . . . I still think there’s no Hotel California Clause . . . what legal hold do those favoring Union have over any state that might wish to “dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them”?
That’s a good 4th of July question! [:-)
Where’s the sovereignty?
They include ‘written’ and ‘document’.
It is crazy talk indeed, and I think we should all pray we will never have to test the validity of any of our speculation on this matter of secession, lest we find out things will be worse than any of us imagine.
Now I wish to bring things back to the question of the UK constitutional crisis.
I just read that Farage has just stepped down as leader of UKIP. So now the only party without leadership problems is the SNP.
Ah, I misunderstood. It seems to me there’s no barrier to the UK negotiating now for trade agreements that take effect when the timer runs out. I hope they get to it soon.
The people are sovereign. They have spoken. The rest is logistics.
If Britain does not leave with all deliberate speed then the choice to leave and the reason for it will have been vindicated.
From my online dictionaries:
American Heritage:
[3–1 and 2 have t to with process and general structure] a. The system of fundamental laws and principles that prescribes the nature, functions, and limits of a government or another institution.
b. The document in which such a system is recorded.
c. Constitution The supreme law of the United States [notice the capitalization]
Free Dictionary, Dictionary tab:
3. (Government, Politics & Diplomacy) the fundamental political principles on which a state is governed, esp when considered as embodying the rights of the subjects of that state
4. (Government, Politics & Diplomacy) (often capital) (in certain countries, esp Australia and the US) a statute embodying such principles
Free Dictionary, Legal tab opens with:
The fundamental law, written or unwritten, that establishes the character of a government by defining the basic principles to which a society must conform; by describing the organization of the government and regulation, distribution, and limitations on the functions of different government departments; and by prescribing the extent and manner of the exercise of its sovereign powers.
A legislative charter by which a government or group derives its authority to act.
Eric Hines
Aaaaannnnd, there’s this:
https://en.wikipedia.org/wiki/The_English_Constitution
Actually, technically, Parliament is sovereign.
But when Parliament passed the referendum bill they effectively (if not legally) bound themselves to abide by the results.
More to the point, there is a significant percentage of the (remaining) United States who would be happy to see Texas go. Two fewer Republican votes in the Senate, among other things.
Sorry, I’m not following. Could you say which online dictionary you’re using so that we can go through the definition? Otherwise I’m just citing competing definitions.
I’m not a fan of definition through etymology; words can travel a fair distance from their roots.
And what about all the Republican voters in other states who would choose to become Texans.