Legally Parliament is said to be “sovereign” and can pass any legislation it wishes, but as we’ve witnessed with the advent of the European Communities Act 1972 (ECA1972) and EU membership, parliament is obliged to take the “advice” from the European Commission to pass into law EU legislation, EU Directives, EU regulations, ECJ decisions and other legal acts relating to EU treaties and international agreements. It can try to reject EU laws that appear on the EU Acquis or try to legislate Bills that counter EU laws, but if challenged by the EU Commission or, in theory, if anyone in the EU feels unjustly treated by UK laws that contravene the spirit of the EU treaties sanctioned by parliament, the UK government could face unlimited fines in court cases at the European Court of Justice in Luxembourg or even in our own High Courts, and the decisions of the often EU biased courts would fall in favour of the supremacy of European Union laws and its treaties, such as the Queen v Factortame case in 1990 when the government failed in its attempt to stop “quota hopping” by Spanish fishermen registering their boats in British ports thus grabbing British quotas.
There is another parallel in our constitution. For example the Queen is not legally obliged to accept the “advice” of her government ministers, but everyone understands this role is a formality exercised in 16 countries of the Commonwealth and usually binding. No monarch has refused Royal Assent, the act of passing legislation into becoming law, since 1707 in the UK, when Queen Anne refused it for a Bill for settling the militia in Scotland. Even then she was told to refuse it by her Minister. Indeed no monarch has been personally present to give Royal Assent since 1854. The Monarch gets a lackey to do it for her, in her respective realms. The price she could pay for refusal of that “advice from Her Majesty’s Minister” would lead to a constitutional crisis, which at the moment no one is prepared for.
The Referendum Bill promised by the UK government evinced that the people have the “Final Say” several times. The Conservative Party were elected on trust to deliver the EU referendum on those conditions, that the Government would take “advice” from the people.
First, the Conservative General Election Manifesto of 2015 promised a referendum on membership of the EU in the following terms:
Secondly, Parliament enacted the European Union Referendum Act 2015, whose formal title stated that its purpose was “To make provision for the holding of a referendum in the United Kingdom and Gibraltar on whether the United Kingdom should remain a member of the European Union”. That Act authorised the holding of the referendum, regulated who would be legally entitled to vote in it and other matters about the conduct of the campaign, and specified that the question would be: “Should the United Kingdom remain a member of the European Union or leave the European Union?”
In opening the second reading debate (Hansard) on the Referendum Bill on 9th June 2015, the then Foreign Secretary Philip Hammond said:-
“This is a simple, but vital, piece of legislation. It has one clear purpose: to deliver on our promise to give the British people the final say on our EU membership in an in/out referendum by the end of 2017.”
And he concluded that speech as follows:
“Few subjects ignite as much passion in the House or indeed in the country as our membership of the European Union. The debate in the run-up to the referendum will be hard fought on both sides of the argument. But whether we favour Britain being in or out, we surely should all be able to agree on the simple principle that the decision about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber. The decision must be for the common sense of the British people. That is what we pledged, and that is what we have a mandate to deliver. For too long, the people of Britain have been denied their say. For too long, powers have been handed to Brussels over their heads. For too long, their voice on Europe has not been heard. This Bill puts that right. It delivers the simple in/out referendum that we promised, and I commend it to the House.”
Thirdly, the government spent £9.5million of taxpayers’ money on printing a leaflet and distributing it to all households in the United Kingdom. That leaflet attracted widespread (and deserved) criticism for its gross bias in favour of remaining in the EU. However, on the consequences of the referendum it could not have been clearer. On the page headed “A once in a generation decision” it stated that:
“The referendum on Thursday 23rd June is your chance to decide if we should remain in the European Union.”
But it went on to be even clearer and more emphatic:
“This is your decision. The Government will implement what you decide.”
Fourthly, the 17,410,742 who voted to leave in a national turnout of 72%, making it the highest ever for a UK-wide referendum and also the highest turnout for any national vote since the 1992 UK General election, would feel betrayed if the Government failed to deliver on its promise to honour the “advice” from the people.
Out of all the sins betrayal is said to be the worst kind. Betrayal is a highly emotive subject because it cuts at the very heart of trust and friendship. It is an attack on trust and trust, once broken, can never be fully restored. The actual elements of betrayal may be small in themselves but the act creates ripples disproportionate to the events.
So although legally Parliament could ignore the result, saying it was “just advisory”, they would have the same “right” to reject that advice, as the Queen has the right to refuse Royal Assent, in that she can, but can’t in reality, because of the political consequences.
In other words the referendum result to invoke Article 50(2) and repealing ECA1972 withdrawing our membership of the European Union, should now under our constitution – as that result was to leave the EU – be a mere formality. The result is thus binding on the Government and Parliament to make it so.
So what are they waiting for? Christmas?
Source material
http://lawyersforbritain.org/brexit-referendum-binding.shtml
Several other relevant points:
1. Parliament is sovereign among institutions of the state. it is not sovereign over the people. Its relationship with the population is is moderated by their relationship with the judiciary, the monarch and the church(es) and on this particular question by the terms of the referendum bill.
2. Those saying it was too narrow a majority for such a major constitutional change should remember that this is the sort of question that would have been considered in the bill, and Parliament decided on a simple majority, ie, one vote to decide the question.
3. Those arguing that a vote in Parliament is required to trigger Article 50 should remember that Parliament approved the Lisbon treaty in total and authorised the government to execute the treaty in full, ie, including Article 50.
4. Article 50 concerns terms of exit, not a future relationship, (I find it incredible how few people pontificating on it have actually read it and understand its plain English) although there is obviously some interplay between them. There is no obligation arising from the Lisbon Treaty to agree formally terms of any future relationship whatsoever.
5. The Vienna Convention on Treaties requires parties to a treaty first to use any provisions of the treaty to disengage, second to agree a process if there no provisions, third, in the event of disagreement to seek mediation or arbitration. Britain and the main EU member states are parties to the Vienna convention, the EU is not, France is not. Article 50 requires the EU, not member states, to negotiate terms of exit with the departing state. There is no other legal obligation on the EU to negotiate anything.
6. In any negotiation, the way to relatively painless and rapid agreement is to keep the scope of discussion and negotiations to the bare minimum and have totally clear priorities. Control of immigration should NOT be on the agenda. Future trade relationships should NOT be on the agenda. These two issues should be set aside in separate talks.
7. Terms of exit include such things as winding down payments to the EU, disposal of UK’s share of EU assets, residence of EU citizens already in UK and vice versa, removal of EU rights to fish in UK waters., etc.
8 Most of the issues affecting academia and industry in UK, such as research or farming, can be decided by the UK Government without agreement of the EU. The problem is the mindset of so many in Government and the media that we always have to await EU agreement before we decide anything.
an excellent analysis, and extremely pertinent. The government should take note. As should we all !
It has the legal power (which it shouldn’t possess, as a governmental Referendum of the people should have suzerainty over a representative assembly), but if it uses it it will cast a faint shadow of tyranny over the political order ensconced within Westminster’s walls, which given the increasing great discontent – and in some areas anger – that already exists beyond Parliament towards it, wouldn’t be a sensible way to proceed.
Also extremely useful : the LINK to
http://www.lawyersforbritain.org which I had not heard of before, and which has some fascinating, and extremely learned, articles on legal and constitutional aspects of Brexit’s implementation.
They do not currently have a section for LINKS to relevant organizations but perhaps UKIPDAILY could write to them suggesting a mutual link ? Just a thought………
Thank you so much for publishing this very competent and helpful article from Simon Blanchard. I find Iain McKie’s comment worrying in its understanding and assertion. The UK does have a constitution ! It just isn’t all written down in one particular document like that of the United States or France. Simon Blanchard has made the position quite clear and such talk from Iain merely muddies the waters unhelpfully.
One problem is Article 50 itself which states that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements,” and this creates the problem for the UK. We do not have a constitution per se, and so this has to be interpreted by the Supreme Court, who will decide whether or not the invocation requires Parliamentary assent.
Hi Iain, hope you are well. Long time no see. if Theresa May doesn’t pull her socks up, then it may well be a court case that decides it. Under the UK’s constitution, it is the Crown (the Queen acting under the Royal Prerogative in practice on the advice of government ministers) which has the power to enter into and withdraw from international treaties. This still leaves the requirement for legislating a Bill in Parliament to repeal the European Communities Act 1972.
It’s about time people stopped kidding themselves that our government and its ministers in any way represented us, the people: they were bought out a long time ago.
Your country is being sold out from under your feet and your children are going to grow up in a Third World country.
Our government, represents the banks and the globalists and don’t they love it.
We elect governments to represent us, but instead, they lead us into Perdition. Treat the government as the enemy, if they don’t represent us, they have no business acting as our government. Time is running out,wake up!
I agree; time for change.
Well said