Friday, 22 July 2016

Some Friday reflections ~ 4 weeks after the referendum and 2 after Chilcot

4 weeks have elapsed since the EU referendum result was announced and the "fall out" from that momentous decision is continuing.  Whilst many of the issues were entirely foreseeable, they must now be addressed.

Those weeks have seen the appointment, by HM The Queen, of Theresa May as Prime Minister and the formation of a new central government for the United Kingdom.  No general election is required (see footnote) and is not permitted anyway unless the Fixed-Term Parliaments Act 2011 is followed.

The Prime Minister has asserted that "Brexit means Brexit" but Article 50 of the Treaty on European Union will not be triggered by the UK in what is left of 2016.    Ministers (and several legal commentators) have asserted that Parliamentary consent is not required for Article 50 to be triggered and a challenge to this view is now proceeding in the High Court.  Article 50 requires that the State seeking to leave the EU has made a decision to do so in accordance with its constitutional requirements - see  Article 50(1).   It would be rather odd if, in a Parliamentary democracy like the UK, a decision to leave the EU can be made without the specific approval of Parliament.  For various views on this question please see It is Brexit (3) - The role of Parliament and also this article by Colm O'Cinneide in the UK Constitutional Law Blog where it is argued that there are "compelling reasons of constitutional principle as to why Parliament should approve any invocation of Article 50. As the institution that is supposed to serve as the representative voice of the people, Parliament is given a central role in the UK constitutional order. It would be compatible with its sovereign status for it to have the final say as to whether and when the Article 50 trigger is pulled – and, by extension, it would enhance the democratic legitimacy of this decision."

The House of Lords European Union Committee has published a report arguing that all aspects of the negotiations on the UK withdrawal from the EU, including trade negotiations, should be effectively scrutinised by Parliament.  Brick Court Chambers, as part of their Brexit Law blog, has looked at the EU Committee report and they note that several panellists at Brick Court’s Brexit and the UK Constitution panel discussion (21st July) expressed similar views, both about the need for full Parliamentary scrutiny of the UK’s Brexit negotiations and balancing any need for secrecy with sufficient transparency, although views differed on the likelihood of secrecy being successfully maintained in a negotiation with 27 other EU Member States and the EU institutions.

Other articles of interest are:

Jo Murkens (Associate Professor of Law at LSE) argues that Westminster must choose between leaving the EU and retaining the UK.  Theresa May has expressed belief in the United Kingdom as a Union but how to preserve this will present a major political challenge given the Remain majorities in Scotland and Northern Ireland.

Martin Kettle - The Guardian 21st July - Theresa May will soon have to decide which Brexit to take.  "In the end, everything she has said points to Theresa May preferring a Brexit that delivers tighter border controls to a Brexit that delivers the market freedom the banks want. Is she ready for that choice and all that could follow it? The implications for Britain and its new prime minister would indeed be historic."

An article published by Business Insider suggests that Brexit may never happen and they advance their reasons for this and suggest that it is in the government's interests to delay matters.  However that may be, it could not be desirable for uncertainty to drag on in the way suggested. 

Open Canada has published an article by Jeremy Kinsman (a former Canadian High Commissioner).  It will not make for happy reading in David Cameron' study since it describes in  detail how the Remain campaign failed.  It is rather like rummaging through the wreckage after the accident and saying - "I told you so!"

Prospect Magazine - It's not over until it's over - takes the view that with some modest reforms the UK could stay in the EU while obtaining the deal it wants but "all that is needed is flexibility from both sides."

"If there is one fixed point in the hurricane of politics in post-referendum Britain it is the dogma that referendums are sacrosanct. The people, it is claimed, have made an irreversible decision to take Britain out of the European Union—and however dire the consequences of this decision, democracy requires “the people’s will” to be obeyed. This dogma is a travesty of true democracy. Insisting that a referendum vote can never be reversed or even challenged conflicts with history, with law and, most importantly, with democratic principles. In genuine democracy nothing is ever irreversible, since every decision, regardless of the majority that supports it, is always open to debate."

For a Scottish perspective on Brexit see Lallands Peatworrier - Scotland's future: Brexit on Brexiteers terms. Unless ...


Not too much has been heard of Chilcot since the publication of his Iraq Inquiry report.  It has been debated in Parliament - Commons and Lords.  This article by Phillipe Sands QC is well worth reading - A grand and disastrous deceit.  "On legal matters, Blair manipulated the process, forcing the attorney general to give legal advice at the last possible moment, with troops already massed and a coalition ready to roll. He would have known that Goldsmith was less likely at that stage to have said that war would be illegal. The pressure must have been intense. Since it would make it harder to obtain the support of cabinet and Parliament, and the public, his formal advice – the 7 March document permeated with an understanding of the uncertainty and risk involved in going to war – was deliberately withheld from cabinet. The redacted and recast document of 17 March, the written answer that went to Parliament, cabinet and the people, was an instrument of persuasion that aimed to create the impression that Goldsmith had advised that the war was unequivocally lawful. The document did mislead. It was the product of calculated manipulation enabled by silences and lies, a grand and disastrous deceit."





No comments:

Post a Comment