The EU referendum result came as a shock to just about everyone, including the leaders of the “Leave” campaign (and me).
The aftershocks of this earthquake in British politics are still being felt.
Three of the central antagonists – the Prime Minister David Cameron, the leader of “Leave” Boris Johnson and leader of UKIP Nigel Farage – have all ‘resigned’. The leader of the Opposition is clinging onto office by his fingernails.
These individual dramas and excitements are, however, mere sideshows.
The real tragedy is the way the British constitution has been turned on its head.
Let us start with a small fantasy.
Suppose, following the 2014 Scottish independence referendum the following had happened.
Firstly, all parties agreed this was an irreversible verdict of the Scottish people on independence. The “people had spoken” and henceforth the question was forever settled – Scotland would remain part of the UK. No second chances.
Secondly, accepting this verdict the Scottish National Party – which had campaigned for decades to be free of the UK – would now reverse its position, recognize the verdict of the voters, and become a Unionist party.
Absurd? Of course. But that is effectively what has happened to the UK.
On June 24th the Conservative party and government declared that “the people had spoken” and an irreversible decision had been taken.
Despite the fact this was merely an “advisory” referendum it was taken to be a mandate which government, parliament and political parties had to accept.
The Prime Minister immediately announced his resignation, saying the decision was irreversible, and delayed his departure only to allow time for the Conservatives to elect a new leader.
The aspirant leaders of the Conservative party, without exception, declared with one voice “we are all Brexiteers now”.
The Leader of the Opposition called for the immediate activation of Article 50 of the EU Treaties that would irrevocably beging the process of the UK exiting the EU.
The SNP accepted this was a ‘done deal’ and immediately re-activated their independence plans.
All of this in the name of taking back power to the sovereign Parliament of the UK – the one body that apparently has no real say in what happens now.
The UK has no written constitution but allegedly holds to the principle that Parliament is sovereign. Yet Parliament has just – apparently – been totally overruled by an “advisory” popular plebiscite.
It is not even clear that Parliament – which passed the legislation that made the UK part of the EU – will have any say whatsoever on when, or if, Article 50 to leave the EU is activated. Once it is the UK is leaving the EU, come what may. So the executive (Government) will have effectively over-ruled Parliaments passage of the legislation that joined us to the EU.
More than that, the right to Opposition – recognized officially within our Parliamentary system – has apparently just been removed. Now any challenge to the referendum result is said to be “undemocratic”. The decision to “leave” is said to be unchallengeable and irreversible.
Not only that but the political parties must now all become pro-Brexit – for that is the logic of “the people have spoken” and “we are all Brexiteers now” which the Conservatives have already embraced, and the Leader of Her Majesty’s Opposition seemed to have endorsed.
And now the final apparent overturning of Parliamentary democracy is now being played out.
The Conservative Party – with a tiny majority – in conducting hustings (in secret) to decide which two of the five (now all Brexit) leadership candidates will go forward to a ballot of 150,000 or so Tory members.
This tiny sliver of the UK electorate will then decide which of the two will become our Brexit Prime Minister – only a year after a General Election in which that was not on offer (except by UKIP who gained only 1 MP).
Moreover this purely internal Tory party process will also decide an entirely new prospectus about what future relationship the UK to the EU and the rest of the world will be.
Do we want to be in the European Economic Area (EEA) with all that entails – or totally outside of it? What level of control of EU migration do we want? What rights of the millions of UK citizens living in the EU are we willing to sacrifice ?
The various Tory candidates put forward their own versions and interpretations of what they think “the people have spoken” means on all these issues, but the actual people – the voters – will have no say in choosing which of them they really “meant”. The only question on the ballot was ‘remain’ or ‘leave’.
The effective over-turning of Parliamentary democracy in favor of plebiscitary “democracy”, the removal of the right to challenge and reverse decisions, the change without election of our Government from one regime to another, and the resulting probable break-up of the UK – all this heralds a massive constitutional and institutional crisis. It won’t end here.
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Like you, I am concerned about the constitutional implications.
Practically, two other points concern me. First, there were threats by the organisers of the Leave campaign to challenge legally the referendum based on their concerns that the meltdown in registering last-minute voters was not only bending the rules but — they seemed to imply — conceivably going to skew the result against their best interests. Now that the Leave campaign has won the plebiscite the challenge has disappeared, as far as I can see. If there was a legal point to address before the result, presumably there’s still a legal point after the result. Leave’s concern was about irregularity and that the whole referendum process might therefore need to be subjected to judicial review. That’s presumably still the case, irrespective of how the result turned out.
Secondly, we have been told by Leave campaigners that all UK law that has been made in the light of British membership of the EU needs to be disentangled and reviewed/reframed. That tells me that there ought to be a compilation of exactly what laws, and aspects (including precedents) that are EU-affected. Clearly there should be a process of (a) evaluation, determining what the laws are affected, to be followed by (b) reflection on whether replacements are needed (including how the laws should be absorbed into UK statute in such a way as to have the same effect, or a different one, in which case there will need to be public debate, surely), and (c) enactment of replacements either through Acts or Statutory Instruments, which will require considerable Parliamentary time. Are you aware of anyone outside Whitehall departments engaged on this?
There is also an interesting point about breaches of laws extant while the UK was still a member of the EU, but only coming to light after it has left. What judicial process will be followed?
My research tells me that the laws prevailing at the time at which an offence was committed are considered by the judiciary. That prevents ex post facto offences. But in the case of a different legal system prevailing has anyone looked at how that will work? This will be a constitutional minefield, as far as I can see.
I am not a constitutional, nor any other sort of, lawyer but your points seem very relevant to me. The fact that it will take years (decades) of extremely complex legal changes is beyond dispute. M’leaned friends will be happy!
The legal challenge is happening, just hardly anybody is reporting on it. Try Joshua Rozenberg or David Allen Green’s twitter feeds for more info
“The UK has no written constitution but allegedly holds to the principle that Parliament is sovereign. Yet Parliament has just – apparently – been totally overruled by an “advisory” popular plebiscite.”
I think this misunderstands the sequence of events. Our sovereign parliament decided (544-53 on second reading) to refer an important matter of policy to the voting public. That is in the same way that the same parliament consults on a wide number of matters without affecting its sovereignty. Parliament gets to ask the question, therefore it remains sovereign. If the government had held a referendum without legislating, then parliamentary sovereignty would be in doubt: but parliament legislated, and the referendum was held.
The AV referendum, being binding, makes this clear: parliament legislated, indicating an in-principle acceptance of changing the electoral system, but requires public endorsement through a referendum as an additional check – but while the public get a say, it is on parliament’s terms only.
The only slight grey area in this matter is because parliament hasn’t explicitly decided that A50 should be triggered conditional upon the referendum outcome. But that’s because it is assumed that A50 is thought to be a matter for the government, not parliament. The meaning of a ‘Leave’ vote should surely have been clear to those 544 MPs voting for the referendum — if not, they really are in the wrong job.
Most of our ideas about parliamentary sovereignty come from Dicey, and he of course was a big fan of referendums.
I think you miss the central point – Parliament legislated for an ADVISORY referendum which is now being (retrospectively) interpreted as a MANDATORY referendum – indeed so mandatory that one main Party (the Conservatives) have changed their policy of the past 4 decades on the EU.
and have done so despite witness the carnage it has caused on the financial markets, and the rise in rampant racist attacks against immigrants of all origins 😦
And having heard the people’s advice, ignore it?
A huge amount of intellectual effort was put, several hundred years ago, into overturning the view that the king could do whatever he wished and replacing this with the view that rulers of nations rule in the name of – and derive their legitimacy from – the people. And a huge amount of blood was spilled to uphold that principle in the 20th century. Had Remain won the referendum and Brexit be saying the result was merely advisory and should be ignored, would you be saying be agreeing with them? If not, what is the difference between the two situations?
Reblogged this on In the Dark and commented:
This piece makes some important comments.
Reblogged this on Disturbing the Universe and commented:
What a mess we have made (but mostly Cameron, Johnson & Farage)…
I thought there was only one political party in the UK with a specific mandate to remove us from the EU so why are the Tory Elite (ok I’m giving them a bit more than they deserve ) are now falling over themselves to be the first members of their political party to take a country like ourselves, who used to be respected and invited to at all the best dinner tables in the world. Shouldn’t they just say “well we had our promised EU REFERENDUM – Some porky pies got told and a largely hostile number of people (to politicians) looked at the ballot paper and voted for something that actually we had no plans for, a bit like a Dutch auction or container wars type of sale – so they were given a binary question and they ticked a box that most appealed to their own personal circumstances and possibly without thinking of the overall impact on the whole population. BUT, they were offered dreams of a better financially resourced NHS (who would argue against that) and the ability to actually make our own mistakes all by ourselves.” Well we (those that believe elected politicians should be accountable for their actions and at least aim to finish their original election pledges of bringing the economy under control and not be side tracked) don’t believe a good and prudent government would take such an enormous risk with it’s own citizens hopes and long term aspirations and also continue to be welcoming to visitors many of which work hard in our shops, offices, buildings, factories and our green fields, but also our overall place and reputation in the world- Well here’s the parliamentary challenge to UKIP – who are the only political party with a desire for full partition from the EU and currently with 1 MP, (once you have found a new leader to go with your one MP) you win the next election with a workable majority and then you can achieve your ultimate aim- but WE the current house of commons, elected only a year ago have a very big job to just to unite the country – which the EU referendum has highlighted most of all is, now fractured in two- some of us which are quite new to this politics game and are still very much on probation- are not really insane enough to do it on our watch! OR ARE WE?