Can you indulge an ignorant Yank? One who does to his credit follow British politics pretty closely.
How are generic treaties handled in British constitutional law? Say HMG and Slobovia agree a treaty over, say, bird’s egg imports. Once the negotiating teams shake hands, what is the process that gets the treaty into effect on the UK side?
The relevance to this thread of course is that the actual process of Brexit would look something like:
A) Trigger A50,
B) Make a plan for HMG’s negotiating goals,
(or maybe A & B are reversed; that’s not important here)
C) Negotiate a huge great pile of related but separate treaties in light of those goals, but ending up well short of most of them,
D) Approve some or all of the treaties,
E) Implement the approved treaties unless there’s EU political or legal fallout from the disapproval of some of them. If so, return to step B.
The thrust of my question is step D. With the thought that the answer to that part will inform the rest of the process.
As to Brexit overall I see the chicken and egg problem that if every negotiated result, no matter how minor must be approved by Parliament, the end state will never be reached.
According to constitutional practice in the United Kingdom, Parliament has no formal role in treaty-making, as the power to do so is vested in the executive, acting on behalf of the Crown.
Where a treaty requires a change in UK legislation or the grant of public money, Parliament may vote in the normal way to make or deny the required provision; in other circumstances it can only overcome the will of the executive to conclude a particular treaty by expressing disapproval and relying on political pressure to change the mind of ministers, or, in the extreme case, by withdrawing its confidence from them.
The lack of formal parliamentary involvement in treaty-making differentiates the British Parliament from most other national legislatures. With few exceptions, most written constitutions stipulate that parliamentary approval of treaties is required before ratification for at least some categories of treaty. (The constitution of the United States provides that treaties are made by ‘the President by and with the advice and consent of two-thirds of the Senators’).
The difference between UK practice and elsewhere is smaller than it appears, though; the Ponsonby Rule and other conventions ensure treaties are scrutinised by Parliament, and the Commons must approve any Treaty that implicates expenditure and revenue.
Thank you. Given that most treaties will need some UK legislation, or UK funding, to bring them into effect it means the UK system amounts to more of a distinction than a difference.
All democracies suffer from the problem that their executives can negotiate and sign, but their legislatures can (*de facto *if not de jure) stymie implementation.
Quite the Gordian knot y’all have created.
Brexit has the additional problem (I think) that there is a considerable body of EU law that’s now operational inside the UK as essentially domestic law. Part of the point of Brexit was to remove some of this stuff. But other parts of it are still seen as useful; e.g. food standards.
Whether pre-existing but currently inactive UK laws would automatically reinstate when the EU stuff drops away is another interesting topic. And what of areas that society does want to regulate for which there is EU law, but not older UK law? e.g. modern telecommunications, genetic engineering, etc.
I predict lawyering will be a growth industry for a decade or three.
There is a proposal to bring all the current E.U. law into UK law in one sort of “super-bill” and then in the future pick off the ones that are no longer relevant but keep the ones that are beneficial.
Isn’t it the nature of your parliamentary system that the government and Parliament, broadly speaking, agree, since the government is composed of the members of the majority party or coalition of parties? How could it come to pass that the government was in favor of Brexit, if Parliament as a whole was not?
Well if the majority party, from which the executive is drawn, has a sizable minority within itself that opposes the official government position, then any free vote in the commons could be lost if the opposition parties are against the motion.
For example
Government - 60 member, 20 of which are against the bill
Opposition 1 - 30 members, 25 of which are are against the bill
Opposition 2- 10 members, 10 of which are against the bill
No assuming no whipping of members the bill would be supported by 45 MPs (40+ 5) and opposed by 55 (20+25+10) and so would fail in the Commons.
The Conservative party fought the last election on a manifesto which included a commitment to (a) hold a referendum, and (b) “respect” the result of the referendum. They didn’t commit to advocating for a ‘leave’ vote in the referendum and, in the event, most members of the government, and most members of the Conservative party in the legislature, advocated for a ‘remain’ vote.
But, as we know, the ‘leave’ vote was successful.
You can now take the view that, having been elected on a commitment to “respect” the ‘leave’ vote, the party is now committed to taking the UK out of the EU; that is the view of the new PM, Teresa May (who was a tepid ‘remain’ campaigner in the referendum). Similarly, everyone else in May’s cabinet either was a ‘leave’ campaigner or is someone who now accepts that the referendum result mandates the government to take the UK out of the EU.
It remains to be seen how Conservative members of the legislature, who are not in the government (“backbenchers”) will view this. Up to now, the government’s position has been that it has the legal power to terminate the UK’s membership of the EU (or at least to initiate that process) without involving the legislature, and it has been it’s intention to do so. The High Court ruling (unless reversed on appeal) will now require the legisature to be involved in doing that. Conservative members of the legislature who favoured ‘remain’ in the referendum campaign will now have to ask themselves the same question that members of the government have already asked; do I continue to oppose Brexit or do I think that, having been elected on the strength of a manifesto commitment to respect the result of the referendum, I can or must now give effect to Brexit?
Most of the commentary in London is suggesting that Parliament will approve Brexit. The political fact of the referendum result, plus the governing party’s commitment to respect it, can’t be ignored. Plus, the government in the UK is always in a strong prosition through a combination of threats, blandishments and judicious rewards, to assauge the doubts and fears of backbenchers, and get them to support whatever it is proposing. But what the government will have to do to bring Parliament along is take Parliament into its confidence; tell it what kind of post-Brexit future it seeks forf the UK, what kind of ongoing relationship with the EU and the rest of the world. Up to now the government has been coy about this, either because in advance of negotiations with the EU they are playing their cards close to their chests or because (as many suggest) they haven’t got any cards. But this won’t fly now; Parliament can reasonably say that they are reluctant to approve Brexit if they don’t know what follows, or at least what the government hopes will follow. So the government’s thinking about the place of Britain in a post-Brexit world will have to be a lot more public, and backbenchers (most of whom are remainers and appreciate the advantages that a close relationship with the EU brings) will have a lot more influence in shaping it.
David Cameron was never in favour of Brexit, but the referendum was included in a manifesto and legislated for in order to appease the highly-Eurosceptic wing of his party for internal party-political purposes, and also to draw off some of the electoral pressure from UKIP (who currently have 1 (one) MP), in the expectation that it would be a firm “Stay” vote. It’s fair to say that things didn’t go as planned.
A new development - Pro-Leave Tory MP Stephen Phillips has quit as an MP and left the Tory Party citing ‘irreconcilable differences’ with the Government.
Seems he envisioned a soft Brexit and is spooked by the hard Brexit rhetoric of the Government.
The problem with referenda in any democracy is they tend to be Rorschach blots. The public and the politicians both are prone to seeing in it what they want to see in it; be that good or bad.
Post-vote reality has a habit of collapsing the wide range of fantasies into a single mostly-fixed outcome. Much to many people’s surprise.
Do you mean as a matter of principle, or just for fear of upsetting a majority? Because it wasn’t by any means a landslide majority - so whatever choice you make, you can only win about half of the hearts and lose the other half.
True, but it will vary a lot by constituency. In theory Remain could have had a greater than 50% vote share in nearly half of constituencies, but in reality there are fewer English or Welsh constituencies that had a Remain majority (these tend to be concentrated in London and city centres). So for the individual MP, it’s most likely that taking a strong Remain stance will anger >50% of constituents.
(The majority of Scotland’s constituencies were majority Remain, but they are already held by a pro-Remain party.)
Doesn’t that assume that May can hold the Conservative parliamentary caucus together? As the rubber hits the road and the details of what Brexit means start be clearer, isn’t there some chance that the caucus will start to splinter on this point, which may lead to a free vote?
The biggest danger for the brexit side is the delay.
MP’s can say now that they aren’t intending to derail it but the longer we go without triggering article 50 the greater chance there is of “events” and the weaker the mandate for action becomes.
Remember what Harold Macmillan said when asked what politicians most fear?
“Events dear boy, events” and if a week is a long time in politics then what on earth will another six months bring? Trump presidency? UK by-elections? French and German elections? SNP shenanigans? Further Corbyn turbulence?
There isn’t go to be a Brexit, there never was - well, after the first 48 hours; the Germans know it, Brussels knows it, Labour knows it, many Tories know it.
Eventually, something will have to give on freedom of movement and then we can all get back to normal.
It will be fun watching the Tories for several years though.
As I, a political junkie Yank, understand it, the Court pointed out that is was an Act of Parliament (1972) which got the UK into the ECC (forerunner of EU), and therefore, only an Act of Parliament can take the UK out.
Is this a fair comparison - can the Act of 1972 be legitimately considered what got the UK into the EU? Or can it be argued that it was the Government (PM and such, right?) that got you in, and therefore the Government can take you out?
If it turns out that the Brexit that is now seen as ugly, can some former Pro-Exit’ers argue “This ain’t what I voted for - I demand a new vote!” without being laughed off the stage?
Aside from speculating as to the sincerity of such an position, would it have traction?
“I thought we could keep out all those brown people but still get EU farm subsidies! I don’t want this Brexit - stop the process!”
How likely is this type of reaction, and will it have any effect?
And, if this comes down to asking the EU “Um, this Article 50 thing - how does this work, exactly?”, I am going to bust a gut laughing.
