Brexit: UK Government loses High Court battle over triggering process

Great Debates
41

Getting us in meant adapting and creating laws, in a way that many previous treaties, e.g., military alliances and the like, didn’t, and crucially writing into our statute books that in the relevant areas, EEC (as it then was) law had direct applicability.

In 1970-72, there was prolonged debate about whether or not we should join (though this had been an issue since the early 60s, de Gaulle’s obstruction had prevented an agreement). The Heath Government came into office at the 1970 election committed to another application. The Treaty of Accession was signed after a positive vote in Parliament to approve the terms, and the Act of 1972 gave legal effect to it. It can’t be undone without Parliament doing something about the 1972 Act and all the consequent EU regulations that currently have effect in the UK.

The question turns on whether triggering Article 50 has a legal and legislative effect, among them the implicit removal of individual rights (such as freedom of movement) acquired as a result of the ongoing effects of the Act of 1972. The court’s view is that because of its irreversibility, it must (see below).

Possibly, there are all sorts of polls indicating enough “buyers’ remorse” to suggest a second referendum might come to a different result, but without much more precise terms we don’t know how people will react, and we wouldn’t know what the terms are until after Art. 50 is triggered, by which time it is too late to row back - see below.

Moreover, the political opportunities and mechanisms for such a change of heart to become politically effective are unclear, absent a series of parliamentary by-elections to give us a clue. There is one pending in an apparently safe (but strongly pro-Remain) suburb of London, where the local MP is a Brexiteer but has triggered the by-election because of his promise to do so if the government decided to expand Heathrow airport, which they have. So reading the entrails of that result will be an interesting exercise. Otherwise, we may have to wait for unforeseen accidents and heart attacks…

On the specifics of the importance of one issue over another (whether immigration or farm subsidies, or research funding, or… the list is rather long)… the government is still going through a balancing act, but the PM appears to have made immigration the top issue at her party conference (and of course EU membership has absolutely nothing to do with immigration from outside the EU, which is entirely within the UK’s control already - but if we were to change our minds at the wrong time, who knows what the other member states might expect of us before allowing us back - see below)

Then again, what’s said to satisfy the troops at party conference doesn’t always come to life in policy-making reality.

The text is pretty clear. It’s irreversible in itself, and has effect on completion of an exit agreement (which doesn’t necessarily have to be a full outline of the future relationship), or two years, whichever is the shorter. This can only be extended if all member states agree to do so.

If the withdrawing state wishes to reverse the decision having once triggered Art. 50, they have to re-apply under Art. 49 - and another way of looking at what Lord Kerr said (and he drafted those bits of the Lisbon Treaty) is that it’s by no means certain what conditions the other member states would place on that, or whether any consequent Treaty (which is what a new application amounts to) would get approval by each member state’s own processes (some member states require all new EU treaties to be approved by referendum).

http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-european-union-and-comments/title-6-final-provisions/137-article-50.html

42

PS:

I think the Remain campaigners ran out of alternative ways of saying “You can’t have it both ways” quite early in the campaign, not that a lot of the Brexiteers were receptive to that point.

Which means that we shall have to start brushing up on the alternative ways of saying “We told you so”, probably to no better effect.

43

We indeed live in interesting times.

44

And there has now been a second resignation by a Tory MP, precisely over the issue of whether the Art 50 decision should be taken by Parliament: except that this MP is a Brexiteer, who nevertheless objects from a more liberal point of view to the government’s emphasis on immigration and its slackness in implementing the law requiring them to speed up the arrival of child refugees in Calais. So that too will be an interesting campaign and result (except that it’s a strongly Brexit and Tory constituency).

45

Nonsense. He didn’t get a promotion in the new Government, Brexit is a convenient way to seem a “man of principle” when he’s actually flouncing away.

46

Wow. Keep this up for awhile and we may get an answer to the question: “What if they gave a Parliament and nobody came?” I’m mostly kidding, but if resigning as a matter of principle (or “principle” ref u_t_j) became fashionable we’d see a real limitation on either party’s ability to get anything done.

The power of the whips is much greater in the UK vice the US. Perhaps you’d end up going more our way: umpteen hundred independents broadly aligned into several major factions. With one huge cleavage between the two *de facto *coalitions.

47

If no one comes, that removes the “pox” option from the equation.

48

We do have a precedent for that particular question. That, in essence, is why the Parliamentary Commonwealth regime deteriorated into a military dictatorship: Parliament wouldn’t or couldn’t reform itself, open itself up to a process of renewal, or otherwise just get a grip. And then the military regime fell apart because of its own internal divisions.

But that isn’t quite the issue here: essentially, the core problem of the referendum question (how do we decide without knowing what the alternatives really are) shifts into the forum whose job it is to put in the intellectual effort and sitzfleisch to ensure they do know.

But in the circumstances, the best they can do is to do what the government is trying to avoid, i.e., agreeing and approving a negotiating stance in public - I’ve seen suggestions that they might even meet in camera. The one thing they can’t do is expect to achieve anything much by voting only after they get the final terms from the EU Council.

49

Yep, it would e so much easier if the negotiators didn’t feel they needed to share what they were trying to achieve with the public - which is of course the EU situation, and that lack of democracy and transparency within the EU is exactly why many wish to leave.

50

Who is this?

51

The same guy you opined about 15 minutes after Patrick’s post you just quoted?

52

There is talk of the British government not daring to contravene Brexit for fear of the wrath that would ensue for having revoked “the will of the people,” but if the popular opinion has silently and quietly moved away from Exit towards Remain over these past few months, then wouldn’t the government incur *less *consequences by revoking Brexit rather than upholding it - indeed, get quiet applause from the new silent majority?

53

It would be nice to think Parliament might grab control of the wheel before we go over the cliff, but I’m not optimistic.

54

It’ll go down to the House of Lords taking the “Are you sure about this?” route to the max. It would help if there was any kind of coordinated opposition, but Labour has descended into, well, who the fuck knows. I’ve binned pairs of shoes that would be better Labour leader than Jeremy Corbyn.

55

Yes, indeed. The referendum was an advisory vote, not a mandate. Pardon my colonial mindset, but what good is having a representative government if all it does is sway with the polls? And given that the polls have actually swayed a bit the other way, what’s to lose?

56

Am I incorrect in understanding that this is now a “You don’t want it and I don’t want it, but we have to do because we have to do it” situation?
The UK government isn’t keen on Brexit, the British voters aren’t, the EU isn’t, but it’s got to happen?

57

…what?

What is the Rorschach coalescence of a simple yes/no question?

58

Pretty simple:

I vote yes because I believe it’ll stop all immigration with no effect on EU farm subsidies.
You vote yes solely to stick a thumb in Cameron’s eye. Sodding Cameron. Besides, if Tories are for it, you’re against it. You have no idea what it’ll do, but it’ll be fun.
Some banker guy votes no because he works in the City and wants to sell services to Germany & France. Besides, the farmers will be fine.
Some farmer votes no because he thinks EU farm subsidies are all that matters and he doesn’t want to risk them. The EU wouldn’t dare cut off British banks; they need us.
Some Scotsman votes no because he wants to stay in the EU and he missed his chance to escape the UK last year.
Some Welshman thinks the EU is preventing fishing. He wants out, thinking fishing will then be unlimited. He has no knowledge of the other treaties on fish stock preservation the UK had agreed to decades ago. Nor any awareness that the post-exit UK will definitely be prohibited from fishing in EU waters and probably prohibited from selling fish caught elsewhere into the EU market.
The final poll result comes out. Of the winning side voters (yes/leave in this case) how many are going to get the specific mix of goodies they expected? Darn few; perhaps zero. And even more if the respective Yes / No campaigns were less than honest about what the actual outcome was likely to be.

I’m an American and I watched all this from a considerable distance. So I gladly defer to local expertise. But ISTM that an awful lot of false propaganda came out from both sides promising outcomes that were wildly implausible. Especially the leave campaign was full of having cake and eating too.
What is the actual collective decision-making value of individual decisions that were largely based on BS or ignorance or anger over unrelated topics? Darn good question.

As we see in some third world countries (and this month in the US), democracy is only a good thing when the electorate is well-informed and judicious. “One man, one vote” didn’t work so hot in Iraq or Afghanistan last time. It might not work so hot in the US next week.

59

So the “second resignation” is the flouncing first?

60

It might be more accurate to say David Cameron made the mother of all cocks ups (from his pov). Much good can still come from this process, inc. some reform of the EU - it is very early days in a negotiation which will take several years.

Also, having been convinced by the simplicity of the proposition, many would already say referendum isn’t a sensible democratic choice.

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