Brexit. An only partially biased guide.

The Referendum
To make things scrupulously fair (lorks, what an idea), the Electoral Commission recommended the question: 

‘Should the United Kingdom remain a member of the European Union 
or leave the European Union?’

A few referendum facts:
•    23rd June 2016; campaign period was launched in February 2016
•    72% turnout
•    51.9% Leave (17,410,742); 48.1% Remain (16,141,241) – a difference of 1,269,501 people (there are currently over 9,000,000 pensioners in Britain)
•    Scotland, Northern Ireland and Gibraltar voted to remain (62%, 55.8%; 95.9%:  about 75,7174 people – as far as I can work out)
•    73% young people voted Remain; 60% OAPs voted Leave; 64% turnout, under 35s; 90% turnout over 65s
•    Campaign funds were limited to £7,000,000 each (yes, really), but it’s thought that a) the sum of both sides’ campaigns came to about £28,000,000 (ouch) and Leave got £4,000,000 more than Remain (largely from Tory donors)  (double ouch)
•    The referendum – its post, copies, officials etc. – cost about £142.4,000,000 (mega ouch).

There is an excellent BBC web page here with lots of lovely pictures (I love you, Auntie, for your maps and infographics; I will always pay my TV licence, even though I don’t have a TV).

The legend that the Brexit Referendum was born from a desire to keep the Tory right sweet has a lot of truth in it (and notice how vocal Bill Cash has become again.  He has got a second wind the force of a gale).  David ‘Flim-Flam’ Cameron tried to get a bill passed to ensure a referendum, but it was thrown out; the referendum had, however, crept into the Tory manifesto.  Flim-Flam tried to renegotiate the UK’s EU deal, but got nowhere, and the referendum was announced.  Parliament passed the European Union Referendum Act in 2015, giving authority for an advisory referendum.

1)    the referendum was always only advisory.  At no point does Parliament legally have to accept it, despite ‘the British people’ having ‘spoken’.
2)    The wording of the referendum was amazingly neutral – compare the Scottish independence referendum:  ‘Should Scotland be an independent country?’  That had a massive turnout – 84.6%:  2,001,926 (55.3%) No and 1,617,989 (44.7%) Yes.  Despite the question.  The importance of wording questions is brilliantly summed up here.

Two interesting maps to compare.

First, the general election results of 2015
Blue = Conservative;  Red = Labour;  Orange = LibDem;  Green = Green in England or Plaid Cymru in Wales;  Northern Ireland – dunno.

Secondly, the EU Referendum
Blue = Leave;  Yellow = Remain;  Grey = Tie

The areas which were the highest Brexit voters were in the North, Midlands and East.  The surprise to most political commentators was the Labour heartlands in the North, which all voted Leave.  But, given the socio-economic situation of the North, it’s not surprising that they voted as they did.  The south-east of Lincolnshire was also heavily Brexit:  towns and villages there have changed immeasurably with the influx of Eastern Europeans to do badly paid, back-breaking agricultural and fishing work that the British won’t touch any more because it’s easier getting benefits.

The outcomes of the Referendum.
The economic consequences are hard to predict, but most organisations predicted doom and gloom before the Referendum, and a lot are predicting further doom and gloom now.  Sterling has fallen and companies are looking at least to have European bases, if not to move to the Continent entirely.  Employers in certain sectors fear a skills and labour shortage, although this may only be short/ medium-term.  The economic outcome will depend on what sort of Brexit we get.

Politics and the Law
The Labour Party is riven:  despite a three-line whip on the Brexit vote in the Commons, four Labour front-benchers voted against, and, consequently, quitted the front bench.  The Tory right is driving for ‘hard’ Brexit, to be outside the Common Market.

The government declared that it would trigger Article 50 (the get-out clause) using a prerogative power.  Gina Miller et al. brought a court case against the Secretary of State for Exiting the EU (why not ‘leaving?  What is the matter with our language, these days?  Does nobody think English can be beautiful any more?  Must it be in the hands of the barely literate and, even worse, the Americans?), arguing that this did not fall within a prerogative power, but had to be accomplished by Act of Parliament.  The High Court, and subsequently the Supreme Court, agreed.

The case is a really interesting one, and rather contentious.  It hinges on two things:  1) whether the government can use prerogative powers to diminish people’s rights and freedoms, and 2) whether leaving the EU is affected by, and affects, statute law, specifically the European Communities Act 1972.  (I love law.)

The judgment was thus:
1)    The ECA ceded law-making powers to the EU, such that EU law = UK law; only Parliament has the power to cede law-making powers, or to take back those powers.
2)    Rights will be diminished, therefore the government needs permission
3)    Although ministers are allowed under the ECA to exercise treaty powers (making and breaking treaties), withdrawal from the EU will change a source of UK law, and therefore the ultimate source of UK law (Parliament) needs to give permission.
4)    The ECA does not give explicit consent for ministers to withdraw from the EU
5)    Subsequent laws seem to have worked on the assumption that Parliament’s consent is needed to withdraw

The three dissenting judges argued that the ECA is a separate thing from Article 50, and therefore does not affect the government’s prerogative powers.
I both agree and disagree with the SC justices.  One law academic has written that whilst the judges upheld Miller et al.’s claim that triggering Article 50 would lead to a loss of rights and therefore the royal prerogative could not be used, there are cases where it has.  One fairly recent one was the disgraceful treatment of the Chagos islanders by the UK government in order to suck up to the Americans.  This was arguably foreign affairs, and so different from the domestic affairs that the ECA governs – and Sir Edward Coke in 1610 wrote that the monarch ‘cannot change any part of the common law or statute law, or the customs of the realm’.  Coke, like Dicey (also quoted in the case), is a constitutional legal text.  In addition, the 1689 Bill of Rights says that the monarch cannot suspend Acts of Parliament.  But The ECA is not necessarily suspended by a prerogative triggering Article 50.  If Parliament had the intention that the ECA couldn’t be undone by prerogative, then it cannot be – and that’s one of their lordships’ points:  there’s no explicit permission.  But equally, there’s no explicit forbiddance.  I think we’re on thin ice here. 

But I agree with the SC justices because had they found in favour of the government, this could have set an unwelcome precedent – of strengthening royal prerogative.  One of the judgments quoted was Lord Browne-Wilkinson’s, in R. v. …Fire Brigades Union (1995)

‘The constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body.’

This case followed that principle.  I do not think that their lordships were right about the legal nitty-gritty of the case itself, but I do think that they were right to defend the underlying principles behind it.  I’m afraid that if this doesn’t make sense, you’ll have to read some sound, but long, law blogs, the summary of the SC judgment, and the ECA.
•    David Feldman:  Brexit, the royal prerogative and parliamentary sovereignty
•    Mark Elliot:  Brexit:  why Article 50 does not need Parliament
•    The ECA

Gina Miller’s excellent New Statesman article sums up her principles.  She puts forth the further point that populism is a potential problem – implying that the referendum is a product of populism.  Clem Atlee indeed said, ‘I could not consent to the introduction into our national life of a device so alien to all our traditions as the referendum, which has only too often been the instrument of Nazism and fascism.’  This is why the government’s repeated bleating that ‘the British people have spoken’ is – I think – a) disingenuous, and b) dangerous.

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