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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsBrexit, Article 50, and a constitutional crisis
Why the Article 50 notification is important
25th June 2016
Is there any other point to which you would wish to draw my attention?
To the curious incident of the dog in the night-time.
The dog did nothing in the night-time.
That was the curious incident, remarked Sherlock Holmes.
The Adventure of Silver Blaze
*
On Thursday 23rd June 2016 there was a historic referendum vote. A clear and decisive majority though not a large majority voted for the United Kingdom to leave the European Union.
And the following day, Friday 24th June 2016, something perhaps just as significant did not happen. The UK did not send to the EU the notification under Article 50 of the Lisbon Treaty on European Union which would have commenced the withdrawal process.
The Article 50 process is the only practical means by which the UK can leave the EU. There are other theoretical means which would mean effectively the UK unilaterally renouncing its treaty obligations but as the UK wants to be taken seriously in future treaty making, such approaches would lose credibility.
And so unless and until the Article 50 process is commenced and completed, the UK will stay as a member of the EU.
In short: no Article 50, no Brexit.
http://jackofkent.com/2016/06/why-the-article-50-notification-is-important/
Heres what Boris Johnson wrote back in February:
There is only one way to get the change we need, and that is to vote to go, because all EU history shows that they only really listen to a population when it says No.
He may have had in mind the second Irish referendum on the Lisbon treaty which followed after the Irish voted no in the first and secured further concessions from the other Member States.
Say no for a better yes' isnt bad as a negotiating ploy. But its not much of a campaigning slogan. The Leave camp ditched it for Take Back Control.
And the rest is recent history.
https://waitingfortax.com/2016/06/24/when-i-say-no-i-mean-maybe/
By Charlie Stross
Contrary to popular belief, the UK does have a written constitutionit's just scattered across roughly 25 different pieces of legislation, subject to amendment on the fly whenever Parliament damn well pleases.
And since devolution came in, more than one parliament has to be convinced to amend the constitutional framework before it can be changed.
It is becoming apparent that The Scottish Parliament and Northern Ireland Assembly may have veto power over BRexit per the House of Lords European Union Committee (11th Report of Session 2015-16,
"The process of withdrawing from the European Union" . See paras 70-71, "The role of the devolved legislatures in implementing the withdrawal agreement" -- section 29 of the Scotland Act 1998 binds the Scottish Parliament to act in a manner compatible with EU law, and Scottish parliamentary consent would be required to amend this. (A similar provision underpins the devolution settlements of Waleswhich voted for Brexitand Northern Irelandwhich voted against it.)
So we have a royal mess coming down the pipeline.
http://www.antipope.org/charlie/blog-static/2016/06/constitutional-crisis-ahoy.html
And pursuant to the last, Nicola Sturgeon (Scotland's First Minister and leader of the SNP) has said that the Scottish Parliament could block Brexit: http://www.bbc.co.uk/news/uk-scotland-scotland-politics-36633244
Denzil_DC
(7,234 posts)whipped up by the right-wing tabloids during and after the independence referendum, which spilled out into Unionist mob violence on the streets in Scotland and some ongoing serious social media threats, this is very likely to get ugly.
All those here who've pooh-poohed the role of xenophobia in the EU referendum result had better avert their eyes, because it's not going to be pretty, and they're going to have a hard time explaining it away.
Response to Denzil_DC (Reply #1)
Name removed Message auto-removed
pampango
(24,692 posts)rule England and whatever is left of the UK forever.
The Tories already have a majority in Parliament even though they only got 1 MP elected from Scotland in 2015. If Scotland is out of the electoral equation in the future, the Tories will be much stronger.
Spider Jerusalem
(21,786 posts)it's that the Labour Party vote has collapsed in Scotland (Labour only managed to elect 1 MP in Scotland, as well). The Tory majority is only 26 and a significant number of Tories are pro-Remain which will cause problems. I am presently starting to think that "Brexit" won't happen, regardless of the referendum result.
Denzil_DC
(7,234 posts)There are only three or four occasions since 1945 when the way Scotland's voted has been decisive in a UK election, and in at least two of those it was the matter of a seat or two.
Of course, it's such a strange political landscape at the moment, comparisons with the past aren't entirely helpful. The way things have gone crazy the last few days, there might not be a Tory party in a year's time! Hello, Prime Minister Farage ...
pampango
(24,692 posts)if there ever was one. I doubt the world would survive that combination.
You are right historically, I am sure. I just wonder if a liberal bastion like Scotland leaving the UK and entering the EU - both of which would be great IMHO - would not strengthen conservatives in the rest of England and what would be left of the UK.
Denzil_DC
(7,234 posts)The rest of the UK's going to go through some serious political upheavals anyway. The Scottish element's just part of it.
I'm more worried at the moment about our being scapegoated by the RW if Brexit doesn't go ahead.
We had a very vibrant and sometimes bitterly fought referendum, but the only serious street violence came after the result, from neo-fascists allied with sectarian football thugs, and that was relatively short-lived.
Some of the nutters who're absolutely set on Leave are capable of anything, love a rumble, and hate the Scots. Well, they hate just about everybody, but we'd be in the firing line.
auntpurl
(4,311 posts)well, I won't say it, put on in Marseille last month, it's no wonder France is ready to see the back of us.
Surya Gayatri
(15,445 posts)And, the maw of hell shall open to swallow what's left of the once great United Kingdom.
Response to pampango (Reply #2)
rjsquirrel This message was self-deleted by its author.
pampango
(24,692 posts)American liberals who are facing their own "Brexit" named Donald Trump in the fall.
I had never before heard such seething hatred and xenophobia as I heard I that shop in a wealthy midlands town. It had nothing to do with economic policy or neoliberalism or jobs even. It was outright racism and nostalgia for a long vanished white Britain.
Anecdotal observations indeed, but thanks for sharing them. They support the polling data that immigration was the main motivator of the Leave supporters. It is safe to assume that all Leave supporters did not share the 'seething hatred and xenophobia' of the people you came across but they sure have evil 'bedfellows' at the very least.
Surya Gayatri
(15,445 posts)and entrenched white privilege lead to. A suppurating cancer on the body politic.
Exactly the same demographic as the Trump base and the Teabaggers. Fortunately, these people are bound to become extinct within the next 20 years.
Thanks for taking the time to flesh out the bare bones story with such graphic detail.
longship
(40,416 posts)In other words, no Constitution, no separation of powers where a judiciary branch has the right to overrule the law makers because of an actual constitution.
BIG DIFFERENCE!
The UK has no constitution no matter how anybody spins it.
People need to stop making shit up.
Spider Jerusalem
(21,786 posts)"Separation of powers" is an American thing. Other countries with written constitutions don't have it, as such. (In the British model in theory all power comes from the monarch; in reality the power of the monarch comes from the consent of the people...see: the Glorious Revolution which pretty firmly established "consent of the governed"...and is vested in Parliament).
longship
(40,416 posts)So Parliament can make any damned law they want with no checks in the law, which would be a fair definition of a constitution.
The UK has no constitution because there is no legal check on Parliament. Parliament can rewrite it on the fly, at their whim.
In other words, no law above Parliament. In other words, no law by which Parliament needs to abide.
In other words, no fucking constitution! A separation of powers is essential to any constitutional government where such constitution rises above any legislative pronouncements. In order to implement such a thing, an independent judiciary to adjudicate disagreements is a necessary element. The UK has none of these elements. Which means that the UK has no fucking constitution.
QED
My best to you.
Spider Jerusalem
(21,786 posts)"Constitution - n. a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed."
longship
(40,416 posts)When the body who writes the (so-called) constitution can rewrite it on the fly, as they will, how is that different from having no constitution whatsoever?
The extent to that difference is where the concept of a constitution resides. On one side it exists; on the other it does not. The UK is an exemplar for the latter.
There is no constitutional crisis with Brexit because the UK has no constitution. Parliament is free to handle it whichever way they decide. When the law making body can do that it kind of defeats the concept of a constitution. Don't you think?
As always, my best to you.
Spider Jerusalem
(21,786 posts)longship
(40,416 posts)Both enacted by British monarchs, I might add, the former by King John, the latter by tradition, one would suppose.
I know that the Magna Carta is written down explicitly, but where is Common Law written down? I confess ignorance on this.
And how is this in any sense a constitution -- I agree that it could form a basis for one -- if parliament can override it at their whim? What keeps parliament from doing so? Nothing that I can see if parliament's pronouncements are the sole basis of what such putative "constitution" one has.
That is the crux of my point.
I know that you disagree. That's okay with me. My advice? Keep advocating your position, respectfully, as you are here.
Regards!
Spider Jerusalem
(21,786 posts)and it is a "constitution" in the sense that it is " the) body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed" (dictionary definition for you).
Denzil_DC
(7,234 posts)a hostage "enacts" a ransom. He really didn't have much choice if he wanted to get out of there alive!
longship
(40,416 posts)The Plantangenet kings. Henry II, the first. His sons were a rather interesting lot, King John especially so, but so too Richard (irrelevant here).
Witness the legend of Robin Hood, and the same Prince John. Lots of good stories there.
And yup! He had no choice but to sign the Magna Carta.
My question stands though.
What stops parliament from dumping the whole thing?
I confess puzzlement.
Denzil_DC
(7,234 posts)The Supreme Court is independent of parliament since something called, ironically enough for you, the Constitutional Reform Act 2005, which fully came into force in 2009.
Guess what? There are also other bodies of law supreme to parliament, based in Europe, and we signed up to them via treaties.
longship
(40,416 posts)Thanks.
But I will stay by my claim that the UK has no separate constitution outside parliament. (Except maybe Common Law.)
As to the European oversight, I think Thursday's vote attempted to kill that.
Spider Jerusalem
(21,786 posts)all of which form part of the British constitution.
Denzil_DC
(7,234 posts)but it's spread out over numerous documents.
There have been initiatives in the past to formalize a consolidated document for the UK, I signed up to one such back on the 80s, but they didn't gain enough traction.
Our problem is that most constitutions arise out of revolutions or other cataclysmic changes. Looking around at UK governments we've had over the time I've been an adult, I'm not sure how keen I'd have been with any of them being in charge of the process, and effectively constraining my rights. There are some benefits in a degree of vagueness in these matters!
longship
(40,416 posts)I guess that that is my problem here. And I must admit my ignorance here. My British history may be a bit fuzzy, and is most recently concentrated on Churchill's WWII history. (I am a fan.)
So my question is simple.
If the parliament can override any law in the nation, "common" or "Magna Carta" or otherwise, at any time at their whim, how is that different than having no constitution whatsoever? No body of law above parliament itself?
Explain that to me. Where am I going wrong here?
Thank you very much for your response.
Denzil_DC
(7,234 posts)Spider and I have been pointing out that there are limits on parliament's powers.
Hell, the queen could wake up tomorrow and decide we weren't having a referendum and that was that, and all sorts of other extremely germane things. It would probably be the last thing she decided as monarch in the current sense of that role, but she could. The focus of our law in the past, thanks to Cromwell etc., was to limit the powers of the monarch rather than the government, so we came to an accommodation.
Then there are the courts I've pointed you to that have been set up since, which do set limits on the powers of parliament.
The Tories have been chafing precisely at the fact that parliament can't override it all. Some of the populist Leave anger was the result of annoyance that "we can't make our own laws". The fact is, if a Labour government was in power, most of the same people would be only too glad to have limits on parliament's power, though not necessarily those imposed by a bunch of "experts" *spit* and furriners *hack*.
The deep ins and out of this are beyond discussing sensibly on a board like DU. We're talking law school tutorial/moot material here. And I'm no legal scholar anyway, and nor are you.
longship
(40,416 posts)So parliament is restricted. That's good.
I've learned something new this morning, always a good start of the day. Such things are always good with a good, hot cuppa Joe to wake one up and get ones brain cells working.
Of course, one has to read further. Thank you (both Spider and you) for a good start.
The simple answer is often incorrect. I stand corrected... provisionally always.
Denzil_DC
(7,234 posts)no doubt thought they were attempting to kill all sorts of things.
They've got a rude awakening coming. EU membership isn't the be-all and end-all of our relationship and subsidiarity to European law.
In fact, ironically, the vote probably killed the Tories' attempts to repeal the Human Rights Act, which they see as giving too much power to European judges (read: hampers them in what they'd like to be able to do to us), and replace it with a UK Bill of Rights.
Cameron was all set to bring that forward next week if Remain had won, along with some other legislation designed to act as a wedge issue for Labour.
It will no doubt come up again if the Brexit process proceeds. It could be two decades before it's fully resolved, if ever. This stuff's ruddy complicated, as Boris Johnson and Michael Gove are just realizing.
longship
(40,416 posts)Please tell me where I am mistaken.
Can Parliament make any law they want with no constitutional oversight?
That is my question. And my argument.
Thank you for your very informative responses.
Denzil_DC
(7,234 posts)Laws are drawn up by lawyers. A non-lawyer politician may draft an initiative, but the need for precise wording and consideration of relationships to other legislation make it a specialized and complicated job. We spend a lot of money employing them to take care of these things at the highest level, and even then the legislation can be subject to wrangle and challenge, sometimes years after enactment. (One of the problems with the Thatcher and Blair years was those governments had supermajorities, so there wasn't enough scrutiny of legislation and some really bad laws got passed, but that's a political failing, not a constitutional one per se. Tell me the US, with its constitution, doesn't suffer from the same problem!)
I guess some future government could try to abolish the Supreme Court or make it somehow politically subservient to parliament again, but that's outlandish enough in real-world political terms to be not worth worrying about unless we had an armed coup and outright fascism. There's not a constitution in the world that can protect you against that!
That's as close to a sensible answer as I can give you, really.
What the article above is pointing out is that we're about to enter a shitstorm of uncharted territory in terms of legality and constitutionality. The settlement with Scotland's been cobbled together piecemeal over the years, for instance, and now it's coming back to bite the UK government in the ass. And that's without considering Northern Ireland and the Good Friday Agreement etc. etc. Some of the case law that comes out of all this will eventually go toward clarifying our constitution and the limits of parliamentary power. That's how our system works.
Anyway, it didn't have to be like this. What an epic clusterfuck.
longship
(40,416 posts)Ignorance is no excuse. However, admitting ones ignorance is some kind of saving grace, one would suppose.
I'll stand on that plank and never give it up!
It's always nice to be proven wrong. One inevitably learns something new. Therein lies an opportunity for further exploration.
Always a good thing, my friend. Thanks!
Denzil_DC
(7,234 posts)in any meaningful sense, so cut that out right now!
Ignorance would be insisting you knew it all in the face of counter-arguments, and neither Spider, you nor I are experts.
Curiosity and a willingness to listen are to be applauded.
This in one of many exchanges on DU the last few days I've really enjoyed - and above all, it's stayed entirely civil. Bravo! I'm honored to be considered a friend.
longship
(40,416 posts)It doesn't always work, but it is always something worth striving for.
Thank you very very much.
In homage to the UK, which I love, have a really big frog, and a damned fine peach.
Altogether, a rather good discussion, most appropriately (given the topic) terminated with some rather obscure (for the USA) British humor.
on edit: don't get me started about the Goon Show, which basically started it all. British humor, that is.
Ying-Tong-Iddle-I-Po!
Here. Have some. Peter Sellers, Spike Milligan, and Harry Seacombe.
Surya Gayatri
(15,445 posts)By the House of Lords, or the Commons? Are they chosen from among the members of the Lords?
Please enlighten me, if you have time.
ETA:
Thanks anyway. You needn't bother. Just found this on Wiki:
Because of the doctrine of parliamentary sovereignty, the Supreme Court is much more limited in its powers of judicial review than the constitutional or supreme courts of some other countries. It cannot overturn any primary legislation made by Parliament.[3] However, it can overturn secondary legislation if, for example, that legislation is found to be ultra vires to the powers in primary legislation allowing it to be made.
muriel_volestrangler
(101,311 posts)Holyrood has no power to block Brexit. It is not clear that a legislative consent motion would be triggered by Brexit, but withholding consent is not the same as having the power to block. The Scottish parliament does not hold the legal power to block (the UK exiting the EU).
He added that the Holyrood parliament was not powerless for example, it could refuse to give its consent to changes to the devolution settlement required by Brexit but that its power simply does not extend to having a veto.
http://www.theguardian.com/politics/2016/jun/26/nicola-sturgeon-new-scottish-referendum-brexit
And "constitutional law expert" means "Professor of Public Law at Glasgow University".
Spider Jerusalem
(21,786 posts)especially as there seems to be no appetite for actually triggering Brexit among the Tories. (And Angela Merkel's chief of staff has said something about "giving the UK time to reconsider the consequences".)
Sunlei
(22,651 posts)Surya Gayatri
(15,445 posts)We the undersigned call upon HM Government to implement a rule that if the remain or leave vote is less than 60% based a turnout less than 75% there should be another referendum.
Parliament considers all petitions that get more than 100,000 signatures for a debate
Waiting for 2 days for a debate date
https://petition.parliament.uk/petitions/131215