The idea that Article 50 is unilaterally reversible is an odd one. I know that one of the people that helped write it says it was written with that intent, but the wording gives no indication or mechanism to reverse it.
And if it is unilaterally reversible, surely that's a really bad thing? There are two reasons I can think of for that. Firstly, countries might start to use it as a form of leverage and brinkmanship in order to extract concessions or exert their will over the EU. And secondly, if the EU doesn't want a country to leave for whatever reason, it's a huge incentive to stall and mess up any sort of talks or prospective trading relationship in order to scare them or force their hands. Basically it allows for a lot more "playing politics" and makes for a far less honest exit process.
A retraction of A 50 followed by a multilateral vote to accept or reject that reversion, I can see that working.
Practically speaking, if the United Kingdom on January 1st, 2019 declares its previous Article 50 declaration was unlawfully issued, I have a hard time seeing the EU gathering the stomach to essentially enforce sanctions against the United Kingdom. This could all end up being a weird "did you know Britain isn't technically in the EU?" factoid in a hundred years.
> article 50 was issued after an act of parliament
I think everyone believes the Article 50 declaration was properly done. But proper isn't politics. Parliament can say whatever it wants. If on March 30th, 2019 Britain says it's in the EU, a disagreeing EU member would need to begin enforcing customs, tariffs, et cetera. If nobody, or nobody who matters, does that the rule goes unenforced.
It reminds me of an oversight in the North Dakota Constitution, which did not contain a clause required for accession [1]. (It was later added.) Laws are just codified conventions; the EU has an enforcement problem in that it cannot enforce, only its member states can.
Exactly, the EU and UK are soveriegns, they'll do whatever they want, lots of countries ratified EU treaties after their populations voted against it. The same can happen in reverse.
The EU wants to heavily penalize the UK to prevent others from leaving.
Similar, to how in Vancouver the federal gov't says pot is illegal, but no one will ever bust you for it.
It is only odd in that it gives a leaving member that changes it mind some leverage against the EU, an escape hatch effectively.
The author of the document and others have also admitted that nobody thought the document would ever be put to use - it is not a battle tested document. And it's silent on whether it can be unilaterally revoked or not.
But as a matter of law the weight of opinion leans in favour of the option of unilateral revocation as long as it meets the principle of sincere cooperation. Unilateral revocation as a means of extracting additional concessions runs foul of that, so it really only works if it is part of a genuine u-turn.
Imagine though if the leaving member decided to revoke A50 as a means of resetting the negotiation or forcing the EU into concessions: it wouldn't work. Any subsequent attempt to withdraw by the member will be met with a much harsher EU. No additional legal devices are needed to drive this home. The EU can decide to impose bigger concessions, more conditions and higher costs to any future agreement. The leaving member needs a deal at some point, so the EU will always have the upper hand here they are just more likely to raise the costs on the leaving member if it engages in such shenanigans.
All of which is more room for playing politics, rather than the purpose which seemed obvious to me - a statement that a state is in the process of leaving the EU, which allows for a period of time for parties to negotiate the most advantageous future relationship for both of them.
When you change it from that pure form, you give opportunity for all sorts of perverse motivations to creep in.
Perhaps but there are plenty of scenarios in which unilateral revocation of an intent to leave is entirely justified. What if a band of member states block a reasonable deal from happening even against the interest of the other member states? What if the leaving member endures a change in government and comes to a different view? What if unilateral revocation is the only means to save millions of jobs and avoid economic carnage? And what protections would the leaving member have (still a fully signed up paying member during the 2 year time frame mind you) if the EU27 wasn't negotiating in good faith?
> What if a band of member states block a reasonable deal from happening even against the interest of the other member states?
That would be unfortunate, and would represent the organisation deliberately harming itself. I think this is less likely under a scheme where unilateral revocation is impossible, as there is less incentive to posture and attempt to force a reversal.
> What if the leaving member endures a change in government and comes to a different view?
Then they seek the agreement of the member states to maintain membership or to rejoin.
> What if unilateral revocation is the only means to save millions of jobs and avoid economic carnage?
This sort of thing must be taken into account before filing the intent to leave.
> And what protections would the leaving member have (still a fully signed up paying member during the 2 year time frame mind you) if the EU27 wasn't negotiating in good faith?
At the point that A50 has already been filed, then it's in everyone's interest to negotiate in good faith (before even mentioning that such an approach is codified in the treaties anyway). The only situation I can see where it could be advantageous not to treat the leaving party with good grace and attempt a mutually beneficial outcome would be if you are trying to scare other potential leavers into line. However I don't think that behaviour would be affected by whether the notification is unilaterally reversible.
Basically - I really do feel like this being a one-way process reduces motives for either party to screw around.
You're not actually addressing the myriad of cases in which the principle of unilateral revocation is warranted. You're merely asserting that it's improbable that member states would negotiate in bad faith or vote in a hostile manner contrary to the leaving member's interests.
A50 was not just constituted to protect the remaining members when a member departs, it was to show members that leaving is possible. If the leaving member has no power in this process and with bilateral revocation the UK in this case has very little leverage, it precisely sets up the circumstances in which any number of member states can muck up the process in a way that harms the welfare of the leaving country. That can't be right.
Unilateral revocation in the only way it is possible keeps the EU27 honest if it were intent on not being reasonable. Mind you there are plenty of people in the UK who feel the EU is not negotiating in good faith as it stands. Unilateral revocation certainly diminishes their leverage and it is undesirable to have to deal with it from the EU27's point of view, but this is a good thing. The EU27 should not have absolute power over a member who expressed a desire to leave.
The only scenario in which unilateral revocation encourages shenanigans is a hypothetical scenario that simply doesn't work. As I've explained in a previous comment, if the leaving member initiates revocation as a means of resetting the negotiation window or as a means of exacting new concessions, it will backfire, the benefits would be nullified and it would be a stupendously high risk to take. After all, if the UK negotiates in bad faith, the EU27 would contest it in the CJEU with the possibility of losing. It would be entirely unprepared to take the blow of a cliff edge Brexit and kill any chances of a favourable FTA from happening for years if not decades.
Note that in all cases bilateral revocation is preferable and probably is how things would go, but you don't need to stretch your imagination that far to imagine whether unilateral revocation should be a right when only one of the EU27 is needed to block bilateral revocation and send the UK into unmitigated chaos.
A50 is specifically worded as to notify an intent to leave. Intent can change, the A50 text sets nothing in stone other than the fact that barring any further intervention the exit date ends 2 years from the notification date. That's it.
I think you're discounting the fact that up to the departure date the UK is a full member with the ability to exercise its rights, including the right to change its mind, especially if the conditions merit it. We both agree that all parties must conduct the A50 process in good faith. You haven't convinced me why the option of unilateral revocation discourages good faith negotiation, or how it encourages bad faith negotiation.
Note that the legal arguments in favour of unilateral revocation specifically relate back to other EU laws, international law and the EU principle of closer union.
^ Best article I've seen on Brexit options and why "reversing article 50" is not a viable option as far as the EU is concerned. It is based on an interview with a former Lib Dem MEP (Andrew Duff), who is basically a consultant constitutional lawyer advising both sides.
You would never revert A50. It makes no sense whatsoever. If there was a change of government in the UK it would do a new treaty with the EU to recover the position and all parties would sign that off.
The only time you would revert A50 would be if the EU refused re-entry to the club and you were trying to get in anyway.
Corbyn may by a bit of a Marxist, but it is Karl, not Groucho.
Presented to Parliament by the Secretary of State for Foreign and Commonwealth Affairs by Command of Her Majesty, February 2016
2.1 The result of the referendum on the UK’s membership of the European Union will
be final.
Government would have a democratic duty to give effect to the electorate’s decision. The Prime Minister made clear to the House of Commons that “if the British people vote to leave, there is only one way to bring that about, namely to trigger Article 50 of the Treaties and begin the process of exit, and the British people would rightly expect that to start straight away”.
Those rules can be changed by the unanimous opinion of European states. Practically speaking, the deal Britain had before is gone. It might be able to re-enter if it gives up its asterisks, though. Bone-headed move by its people, either way.
This type of turnout is not uncommon in democratic states with voter turnout in the UK in particular hovering around that figure[0] since 1945. Yet they still decide laws, amend constitutions, control their military and command a domestic monopoly on sanctioned violence.
By the laws and constitution[1] of the United Kingdom of Great Britain and Northern Ireland, the people voted for Brexit.
I prefer not to make assumptions, particularly as it relates to the finicky nature and opinions of millions of people. It actually doesn't even matter what the people who didn't vote think because they removed themselves from the voting pool and lost the only ground they had to stand on when they had their personal chance to prevent Brexit from happening.
The result came out to be what it was maybe because they chose not to vote, maybe if they had voted it would have been a different result and yet they still chose not to for whatever reasons made sense to them at that time on that day.
I also agree huge constitutional changes should be difficult, but so far Brexit has overcome every challenge and roadblock including a democratic referendum that may not have been the right referendum to hold, that may have even set the threshold too low, and yet it was what it was, with the ground rules declared in advance including the simple majority requirement, and still passed. Clearly the people in favour of Brexit were the more determined part of the voting public to make their voices heard.
Whether it was the political will of the people that did vote, or the political apathy of the people that didn't, that hardly matters now.
> It shouldn't have been a vote without requiring a Supermajority
Works well on the internet. Bad idea in practice. You have to remember that the government didn't want a referendum. They wanted UKIP neutered and the issue put on the backburner.
If there had been a referendum with anything other than a straight majority, and Leave won a straight majority, all hell would have broken loose. It would likely have split the Tory party and made Farage the most important politician in the country.
Similar argument goes for a 3rd option. They didn't want a sensible alternative, they wanted a "put up or shut up" straight fight. Same as had occurred in Scotland. These referenda (and the AV vote before that) were to put constitutional issues to bed not to find alternatives.
It shouldn't have been a vote without an actual /plan/. "Would you like to 1) no change or 2) SUMMARY OF A DETAILED PLAN INCLUDING E.G. WHETHER THE U.K. REMAINS IN THE SINGLE MARKET OR THE CUSTOMS UNION OR HAS A HARD 1980s STYLE BORDER WITH IRELAND ETC" is one thing. "Would you like 1) no change or 2) some vague thing everyone can project their desires upon and scrawl fantasies on the side of a bus" is not a great way to make policy decisions.
I don't think you could be more intellectually dishonest if you tried
> Young people were excluded from the referendum vote.
same franchise as a general election, and the past AV referendum
> Certain demographics living outside of the UK - who are normally allowed to vote in elections - were excluded from the referendum vote.
same franchise as a general election, and the past AV referendum
> A non-trivial number of ballots for foreign residents were sent out too late to be counted.
too few to have have changed the outcome (Leave had a majority of more than 1.2 million)
> The original Parliamentary Act for the referendum explicitly defined it as advisory.
the doctrine of parliamentary sovereignty means it is impossible to have a truly binding referendum: they are all advisory as nothing can bind parliament, even a referendum result
> Most referenda are run on the basis that a super-majority is required for any significant constitutional change.
all past UK referendums have been 50%+1, as was the Scottish independence referendum
you might not like the result, but it was still perfectly legitimate
> it is impossible to have a truly binding referendum: they are all advisory as nothing can bind parliament, even a referendum result
That may be the case in theory: Even if Parliament made a law saying a referendum was binding, it could later undo it. But they didn't even pretend it was binding, although there was a precedent from the alternative vote referendum, which was explicitly binding according to the act authorizing it.
That also would have saved all the High Court hoopla that followed.
The enabling legislation for the referendum infamously didn't say anything about the specific consequences of a decision either way. In particular, and contrary to comments by someone else in this discussion, it also didn't say anything specific about being binding or not on any specific party to do any specific thing.
However, in the debates on the legislation, MP after MP, up to and including government ministers, stood up in the House and said that they intended to give voters the final say in the decision. You can read this in Hansard, and it was really very clear what those MPs thought they were voting for.
The leaflet, distributed to all households in the UK by the government at taxpayers' expense, also gave a very clear and unambiguous statement to the same effect. Absent evidence to the contrary, it seems reasonable to assume that ordinary people voting in the referendum also thought they were voting for what had been described in the official information about it.
The whole non-binding issue only really hit the headlines after the fact, when it started to look like the losing side in the referendum's best opportunity to overturn the result. That's also the time when lots of people in the UK who weren't constitutional lawyers suddenly started being experts on parliamentary sovereignty. (If you want to really heat up a discussion, ask some of those people where the principle of parliamentary sovereignty comes from, throw in a few difficult questions about whether it has any robust legal foundation or democratic authority at all, and then point out that even if it does the principle itself has nothing to do with Parliament being sovereign over the people but rather over other branches of the government.)
I'm actually a moderate when it comes to Brexit itself, but I do have an intense dislike of using sophistry to undermine democracy and civilised government, and I'm sorry to say that there has been more of that than I've seen at any time in my adult life since the Brexit issue became so divisive.
Not sure what you're referring to. The fact that there was precedent that MPs could have copied and pasted to be on the safe side and avoid the Supreme Court having to decide? It's their job to make good laws, not just to give speeches suggesting what their unwritten intentions may be.
> The leaflet, distributed to all households in the UK by the government at taxpayers' expense, also gave a very clear and unambiguous statement
Yes, but as we know, the entire point of the court case was that that statement was not the government's to give.
> The whole non-binding issue only really hit the headlines after the fact
That may well be, but it does not invalidate the legal argument behind it.
Don't take my word for it. Don't take the words of "lots of people in the UK who weren't constitutional lawyers". Take the Supreme Court's. Do you really think its ruling is "using sophistry to undermine democracy and civilised government"?
I understand that you dislike the way these debates have developed. I don't understand why you don't blame this on the MPs who had the power to prevent it.
The whole argument about the referendum being non-binding.
As a matter of democratic government, the people were given a say in a referendum. That referendum was, as far as I can tell, properly conducted according to the rules known in advance. By the standards of any national vote, including things like general elections, the turnout was high, and while the margin was not huge, the option that received the most votes was clear. Both MPs' intent and the people's expectation before the vote was apparently that the decision being made was final.
Beyond that, one can argue about legal technicalities and constitutional nuance, but it doesn't change the result. Disregarding that result, in the absence of a further popular vote or other similarly authoritative step, would IMHO have no popular mandate, without which again IMHO a government has no legitimacy in the first place.
(Just to be clear, my whole argument here is really about the democratic legitimacy of the process. The integrity of our system of government is, to me, a higher priority than any individual decisions or actions by any current part of the government, just as in other situations I might defend someone's right to express an opinion even though I personally did not agree with it.)
It's their job to make good laws, not just to give speeches suggesting what their unwritten intentions may be.
Indeed, but it is an imperfect world and even legislators and lawyers sometimes leave ambiguity in their wording. When that happens, we need to take some intelligent and hopefully fair and transparent view on how to interpret the law in question.
As it happens, there does seem to be some legal precedent for considering what was said in Parliament in the process of making the law to resolve such ambiguities. The House of Lords changed the previous standard of considering Parliamentary commentary as privileged and allowed the use of material from Hansard under some conditions, in Pepper v Hart. I was a little surprised that the Leave side didn't try to rely on that sort of argument during the court challenge.
That may well be, but it does not invalidate the legal argument behind it.
Indeed. But equally, a legal argument can never invalidate a moral/ethical one. If the view of the people on a specific matter has been explicitly asked and answered, I struggle to accept a government that then disregards that view as legitimately representing its people.
Take the Supreme Court's. Do you really think its ruling is "using sophistry to undermine democracy and civilised government"?
Assuming we're talking about the Supreme Court case regarding whether the government had to consult Parliament before triggering Article 50, as far as I know these kinds of arguments were not pursued in detail.
I haven't read the whole thing, but my understanding is that both sides stipulated that the referendum was non-binding, the enabling legislation didn't explicitly give the government the power or obligation to do anything specific after a leave vote, the government didn't attempt to invoke Pepper v Hart or any similar implicit authority, and the action the government wanted to take would have legislative effects. How could the Supreme Court have reached any other decision than it did if those were the facts of the case and accepted by both sides?
No doubt such senior judges were considering all kinds of details carefully before reaching their decision, but it seemed to me at the time that the government never really presented much of an argument.
I don't understand why you don't blame this on the MPs who had the power to prevent it.
I don't think MPs did have the power to prevent it, though. As a matter of law, it seems our highest authorities accept that Parliament currently has no mechanism to legislate for a binding referendum. If MPs had been more explicit in the Referendum Act then it might have saved everyone some time and hassle, but it's hard to believe it would have entirely avoided all the debate over whether the result was binding given the controversial nature of the subject.
My personal view is that the best way to avoid such problems would be to have a proper written constitution that provided explicitly for binding referendums on matters of such importance as part of the machinery of government. Sadly, I have yet to be named Supreme Ruler Of The Universe, and so implementing such a constitution is beyond my power. For now. ;-)
> As a matter of law, it seems our highest authorities accept that Parliament currently has no mechanism to legislate for a binding referendum.
I don't understand what you are basing this statement on. In the AV referendum, the act basically said "if the vote comes out yes, the minister must do X; otherwise, the minister must refrain from doing X but must do Y". This is really not complicated, and as we are agreed, Parliament's acts can bind the government in such ways.
> My personal view is that the best way to avoid such problems would be to have a proper written constitution that provided explicitly for binding referendums
I agree, which is why I find it bizarre that in this particular case you are arguing against the importance of writing down whether a referendum is intended to be binding or not, and what consequences on the government's actions it will have.
OK, I think perhaps we've been talking slightly at cross-purposes here.
I realise now that you're talking about making the referendum binding on the government, so currently the May administration. I agree that it would have been better to include those kinds of provisions explicitly in the EU Referendum Act.
Just to be clear, the moral issue I'm talking about is making the referendum binding on Parliament as well. In terms of the legitimacy of our broader system of government, I believe that not even Parliament should have the power to overrule a properly conducted national referendum. I also don't believe it would be ethical for them to do so now, even if we accept that they have that power under our current legal system, unless for example there is evidence that the popular view has changed significantly and another referendum or similarly authoritative measure dictates a change of course.
> Most referenda are run on the basis that a super-majority is required for any significant constitutional change.
What percentage was required in the Scottish independence referendum?
What percentage was required in the EU/EC exit/remain referendum of 1975?
What percentage was required in the referendum to join the EU/EC in the first place, in 1973?
(The latter being a trick question. There was no referendum to join at all, zero, yet a majority being required (and achieved) to leave is deemed a "horrific travesty of democracy" by people who voted differently.)
Not all the population qualified to vote as they are not UK nationals.
There again, statistics often get skewed to fit a narrative-for example: take 100 people and 99 earn barely minimum wage, the 100th is a footballer and paid millions a year. WIth statistics you can claim that those 100 people contribute lots as high earning tax payers. Which highlights how statistics can and do get abused to fit a narrative.
That's massive by the standards of modern democracy. Can you name any issue which more people have voted on? Far less people than that vote in most governments.
Yes I can. Here in Australia we've just held a non-compulsory national poll (technically a survey not a vote, although it's been debated in public as though it were a plebiscite) on making the legislative changes to permit same-sex marriage. The turnout is 78.5% of eligible voters, thereby exceeding the Brexit voter participation rate.
NB: The comparison may be confounded by local behavioural standards. Participation in this survey wasn't compulsory, but Australia has mandatory voting in most local and national elections. So there may be a prevailing culture of compliance. Nevertheless, a cursory review of the popular press suggests the turnout is substantially higher than that expected by most pundits.
People could be more passionate about the issue. With Brexit people didn't care as much. Im even doubtful it will really make much of a difference looking at it backwards 10 years from now.
I'm not saying it wasn't legitimate or legal, just that _most_ of us did not vote for it, which is why I felt "bone headed people" was too much of a generalisation.
With power comes responsibility. The flip side of suffrage is responsibility. Abstaining from (or casting a blank ballot in) an election or referendum is, practically, dividing your vote amongst those who show up.
(Someone who is not eligible to vote is not really one of a country's people. They're its visitors, children, felons, what have you.)
It's arguably more significant in this case as those that didn't vote were around 75% in favour of remain. It's not common to hear of such a differential between the intentions of those who did not vote compared to those who did.
Had everyone voted, remain would have won by a large margin.
There is a key difference betwen "this is the will of the people" and "this is the will of the people that we allowed to vote, and who found the time to make it along on the day".
People aged 16-18 and people living abroad are two groups that had no option but to sit at home and are both considered anti-Brexit.
That argument sets no principle for declaring a government illegitimate, so you should really have started the second paragraph with “By my hostile reimagining of that line of reasoning...”
