#81. Constitutional crisis?

WHY THE BRITISH ESTABLISHMENT MUST ACCEPT “BREXIT”

Only in a perfect world would the interests of governing and governed be perfectly aligned. What is happening in Britain today, though, threatens to widen this difference into a dangerous estrangement. Latest twists over “Brexit” call for the establishment to submit to the popular will, and to do so with good grace.

On 3rd December, the High Court ruled that the government could not trigger Article 50 (the formal preliminary for the “Brexit” process) by royal prerogative, but must put the matter to a vote in Parliament, a ruling which will stand unless overturned on appeal to the Supreme Court.

This decision prompted a backlash, not just among pro-“Brexit” politicians but in much of the national press as well. The Daily Mail pictured the three High Court judges above the headline “Enemies of the People”, whilst the Daily Express lamented “the day that democracy died”. The Daily Telegraph warned of a “constitutional crisis”.

This raises three profound questions. First, have the judges made a political intervention, with the courts blocking the wishes of the voters? Second, are anti-“Brexit” interests in the establishment plotting to subvert those wishes? Third, what happens now?

Due process

The vilification of the judges is unfair. Their ruling is not political, but concerns a point of law – can a major constitutional change (and “Brexit” is surely that) be made by the executive alone, or must Parliament be consulted?

This decision is surely correct. With an unelected upper chamber, and a voting system skewed towards established parties, British democracy is weak enough as it is, without handing more powers to the executive. Had the court ruled for the government, what further constitutional changes might be imposed on the country without Parliamentary scrutiny?

If it is right that Parliament should be consulted, it is surely right, too, that it should pass a single, “one-line” Act empowering premier Theresa May to trigger Article 50. The public, consulted directly on a major issue for the first time in four decades, has decided. Those MPs and Peers – a substantial majority – who disagree with the voters’ decision should abstain, not try to tack weakening or qualifying amendments on to the legislation.

It is imperative that this is done – and done quickly. Anything else will spell trouble, reinforcing the fear that “the establishment” is trying to subvert the will of the people.

Justified mistrust

This suspicion of trickery flourishes because the British establishment has a truly shocking record of pursuing its own interests at the expense of the public.

Trust in elected politicians, already very low, was driven to new depths by the expenses scandal. Phone-hacking tarnished the reputation of the press, and did nothing for trust in the police. The House of Lords has scant respect because it is nominated by ministers, not elected, as upper chambers are in most democratic countries. The permanent administration is seen as unaccountable, few if any senior heads having rolled even after scandals like Stafford and Rotherham. Controversial rulings (including the grant of “super-injunctions” to the wealthy) have undermined faith in the courts.

Successive administrations have done nothing to counter a feeling that government has been “captured” by two powerful interest groups – big business, and a “liberal elite” whose aims have been labelled “political correctness”. When the state bails out bankers, but not steelworkers or employees of failed retailer BHS – and when the rigorous pursuit of benefits cheats contrasts with few prosecutions of wealthy tax-evaders – the public is entitled to smell a rat.

Estrangement – the price of failed economics

Though successive administrations’ policies on energy, foreign affairs and defence have been shockingly misguided, the real failure of governments has been the economy.

Since 2000, a £0.8 trillion rise in nominal GDP has come at the expense of £2.3 trillion in additional debt. The current account – Britain’s financial relationship with the rest of the world – has plunged into a shocking deficit, reflecting the outflow of profits and interest on past asset sales and borrowing as Britain has sold assets, and borrowed from abroad, to finance consumption. Over the same period, the cost of household essentials has risen by far more (75%) than average wages (51%).

In short, an “anything goes” philosophy of neoliberalism has benefited the wealthy and the powerful to an extent that looks intentional, not accidental.

In this context, the public are right to harbour deep suspicions of the establishment. That establishment now faces its greatest test and one which, if mishandled, will have grave consequences.

What must happen now

Mrs May needs to put forward simple Article 50 enabling legislation on her stated basis that “Brexit means Brexit”. MPs need to pass it without adding amendments. Peers need to deliver a simple assent.

Britain does not yet – quite – face a constitutional crisis, but anything less than the straightforward implementation of the voters’ choice of “Brexit” could rapidly create one.

Regimes isolated from the general population are a recurring historical phenomenon, frequent enough for us to know what happens to powerful elites which seek to preserve their wealth, privileges and prejudices in the face of a rising tide of public anger.

There is a time to retreat with good grace. For the British establishment, that time has arrived.

 

36 thoughts on “#81. Constitutional crisis?

    • Indeed – and we should NOT forget Italian banks, or the Italian referendum on 4th December.

      If, as seems likely, “no” wins, the result will be the resignation of Renzi, Italy politically paralysed and the core of the EU gravely weakened. Latest polls I’ve seen given Hollande (and by implication the establishment?) 6% approval in France.

      Change impending – cool heads required. Will the “remainers” in Britain act responsibly?

  1. The press behaved abominably with regard to this court ruling. If anybody is undermining democracy it is them with their propaganda and skewed uninformed opinions full of emotion and bereft of facts.
    As you correctly point out, this ruling is a point of Law and it is a necessary pillar of democracy to have a parliamentary vote on this.
    However, We have a bigger problem with Brexit.
    If you take Brexit to mean British Exit, then where does that leave the Irish ?
    We live in a country officially known as the United Kingdom, Britain is a geographic term, so Brexit should really have been called Ukexit, but in reality this was always about “Englexit” !
    If the vote goes to parliament, then how can the SNP and the Ulster MP’s vote in favour of Brexit, when the majority of the people that they represent oppose it ? That is not how democracy works.
    And what is true of the Scottish MP’s must also be true for the MP’s representing London constituencies.
    Your argument basically holds true for England, and I cannot fault you on your rational, but in Scotland there is a totally different situation.
    Scotland does not want to leave the EU, neither does Northern Ireland.
    In fact if the UK were to leave the EU, then the case for Irish re-unification would need to be put on the table. The SNP are already preparing a second Indy-ref should Brexit happen. With the Scaremongering and Propaganda of the first referendum still fresh in peoples minds, it is very probable that Independence for Scotland will be achieved this time round.
    This is an issue that will be bearing very heavily on Mrs. May and her advisors. If she breaks up with the EU, she also breaks up with Scotland. Which Union is more important to her, or to the Conservative party ?
    If parliament simply waves Brexit through, then the Scottish case for independence is strengthened. Alternatively if there is a debate and a free vote, we know that most MP’s will vote not to invoke Art.50. Then we stay with the EU, and Scottish Independence will be postponed for another 5 or 10 yrs.
    I see no other solution to this than a snap general Election.

    • It is certainly a total mess! The Scots obviously have the right to independence if they so wish, but readmission to the EU would be highly unlikely, as Spain would veto it because of implications for Catalunya (and others with break-away regions might do the same). So Scotland may now be out of the EU whatever happens. Stopping “Brexit” because it is opposed by the Scots – 9% of the UK – would be a hard sell to English voters!

      Northern Ireland is a special case, with Irish unification the obvious alternative to the status quo. But there would be bitter opposition to that – for which reason Dublin might oppose it, too. That would need majorities in referenda both sides of the border, I think.

      On a free vote, MPs should enact Article 50, with “remainers” abstaining. I can see it from the position of the individual MP, but a collective decision to defy the referendum would be dangerous. I understand that most MPs do see it this way – the likeliest opposition is from the Lords.

      At the end of the day – and I say this as a neutral – the voters have decided. Politicians ignore that at their peril. The headlines wrongly villifying the judges are nothing to what would follow rejection by Parliament…..

    • Yes, you said it, It is a mess, and a very big mess !
      Your article heading is appropriate; constitutional crisis.
      I see some form of constitutional change as being inevitable. The United Kingdom is united in name only. I see Scottish independence and Irish unity as being the next stages. Scottish “re-union” with the EU may not be that difficult, yes the Spanish will object but the Germans will pay them to do the right thing. The fly in the ointment with Scottish independence being that England is Scotland’s largest trading partner, and we see what happens to countries that break relations with their biggest trading partners, ( Ukraine springs to mind !). With Northern Ireland the problem is with the Ulster Unionists. However, NI is a net beneficiary of EU regional grants, and it may well be that the Unionists find it easier on their pocketbook to stay in the EU than it is to leave. Of course, that is if Dublin even wants re-unification !
      The EU in its present form will not survive for very much longer, but then again, neither will the UK.
      Much of this debate is taking place while we are all enjoying relatively benign economic conditions. We readers of your column here know that ” a Perfect Storm” is about to descend upon all of us. Economic conditions are going to worsen and that is going to be the real driver of change.
      With a constitutional crisis merging with an economic crisis ahead of us, life is going to take a very interesting turn indeed. I just hope that I can survive it.

    • Johan

      Thanks. We may differ in detail – I don’t think Spain, or Ulster Unionists, can be persuaded by money – but we are certainly on the same page.

      I tend to look at things as part of a “grand sweep of history”, and that is where we are – ultimately, failure brings change.

      1. Neoliberalism has failed – it has promoted borrowing, weakened growth and contributed to inequality – so it will go.

      2. The British establishment has failed, adding venality to its traditional arrogance, and has been unable to take the public with it. It faces a choice between real, self-denying reform, or oblivion.

      3. Elites elsewhere have failed, particularly where they have tied their fortunes to those of neoliberalism (the US) or failed political grandeur (the EU).

      Three big questions:

      1. How will change come about? History does not answer this, but does frame the question – incumbent regimes have a choice between reform and defeat.

      2. What comes next, in economics? We need something pragmatic, free from ideology, which combines the strength of free competition (not corporatism) and the mixed economy (there are some things best done by the state).

      3. What comes next, politically? I submit that any sane person sees the need to get rid of today’s failed elites – but is very wary of outright populism.

      Which all comes down to one question: Can the elites, and the economic system, be reformed – or will they be swept aside?

    • As a final comment Tim, I think that we have too far gone for any kind of meaningful reform.
      Change will come, and change will be sweeping and violent.
      I am fearful that many innocent people will come to great harm in the process.

    • Scotland will always look to the largest pap it can suck on and who is likely to be the biggest tit to let it. Even if it joined the EU, as a rich a prosperous country it would be a net contributor to the EU budget, which wouldn’t do much for its budget deficit.

      All this puff and wind from the SNP is just manoeuvring for more handouts.

    • I cannot see Scotland being allowed to join the EU, as the Spanish would be certain to veto this with an eye on Catalunya, and might not be the only veto exercised for similar reasons.

      There may not even be much of an EU left to join. Italy votes on 4th December, probably paralysing its government and further weakening the EU after “Brexit”. Italians are unlikely to want to leave the EU, may well want to ditch the euro……

      ….and then I don’t see Marine Le Pen as pro-EU either…..

      …..so can Germany, almost alone, keep it going?

  2. from what I can glean from Liam Fox’s speeches and Bojo’s meandering blathers is that they perceive the main fault with the EU as being it just isn’t neo-liberal enough,

    are you not concerned that the Tories are trying to cook up a Brexit plan using only their beloved neo-liberalism as a guiding light?

    are we sleepwalking into Neo-Liberal Nirvana, a fantasy world which is utterly devoid of any regulation of any kind?

    were you inspired by Bojo’s talk of a ‘Titanic’ success?

    • Let me stress that I am neutral on this. Yes, many Tories may see leaving the EU as an opening for more neoliberalism (but big corporates favour membership because EU regulation weakens smaller competitors). We do need to distinguish between real, Smith-style competitive markets, and the rigged, debt-funded corporatism that characterises neoliberalism.

      However, my belief is that neoliberalism is on its death-bed. It went on to life-support in 2008, and subsequent developments have doomed it.

      So, whilst some may indeed dream of neoliberal nirvana outside the EU, the public will not wear it – indeed, and if you add up support for the Trump and Sanders ant-establishment tickets, it is discredited even in the US.

    • agreed!

      I do harbour a mischievous wish for Trump to win the US presidency,

      the EU referendum rattled the establishment, a President Trump would be a huge boot up the backside for it,

      let’s see what happens!

    • I come at this negatively, I’m afraid. I’m not a fan of Trump – but I am totally opposed to Mrs Clinton, and pretty much everything she stands for.

      On balance, then, it’s Trump for me – on the basis of “anyone but Hillary”….

  3. I’m in two minds on this. On the one hand, I think the high court ruling is correct – government by referendum is a very dangerous thing and clearly royal prerogative is meaningless politically. There is a reason the UK has a parliament. But, it has also been made clear by this referendum that the parliament does not reflect the will of the people. This is a very particular constitutional mess, as it occurs in a country that has no written constitution (and has always prided itself on being able to make this arrangement work). Has any prime minister been able to snatch defeat from the jaws of a relatively uneventful time in power like Cameron has?

    • Britain’s Parliament is not very representative – in 2015, the Conservatives won the election with 36.9% of a 66.4% turnout, i.e. 24.5%. This is enough to create what has been called “a five-year elected dictatorship”, unchecked by a House of Lords which, being nominated rather than elected, has negligible real authority. This makes the courts very important indeed.

      The referendum, as an exercise in proportional democracy, was very “un-British” – not surprising that the political class hated it!

      Cameron fits into a certain tradition of Tory Old Etonians – amongst his precedessors, Anthony Eden, responsible for the 1956 Suez disaster, comes to mind.

      One really has to wonder what the British people did to deserve Blair, Brown, Cameron or, come to that, Clegg.

      The one bright note is that Mrs May seems a lot better than any of these (not too difficult, admittedly).

  4. Tim,
    a complex area .
    Edmund Burke put forward the following view on MPs and Government .
    “Your representative owes you, not his industry only, but his judgment,and he betrays, instead of serving you, if he sacrifices it to your opinion.” [not sure if agree with this in view of the quality of our MPs]
    And
    Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates”. It is,—– “a deliberative assembly of one nation, one interest, that of the whole; where not local purposes, not local prejudices, ought to guide, but the general good.”

    With conservative party getting 36% of the vote last time round they do not represent a majority view of the electorate so it is surely fair and proper that 64% of the vote should also have a say.
    best Peter

    • Indeed, the system is a shambles.

      But for a long time, “muddling through” seemed sufficient, so long as a Lloyd George or a Churchill turned up when needed. This went horribly wrong in 1956, when Eden presided over the Suez disaster, an event which reduced Britain to a second-rank power almost overnight. The period from Suez to the Profumo affair (1963), with treacherous spies in between, was a national disaster – but still, nothing much changed.

      The British system represents territories (constituencies) rather than numbers of voters. This evolved from a previous system that represented land and money, not people. It remains not fit for purpose.

      Was it Stanley Baldwin who described MPs in 1919 as “men who look like they did well out of the War”? A latter-day Baldwin might call today’s elite “people who have done well out of neoliberalism”….

  5. Tim, I enjoy all your posts and agree with you that neo-liberalism is on its death bed. My main concern is that it dies peacefully not violently: the attitude of the elite is worryingly similar to that of the French aristocracy in about May 1789.

    Do not be too generous to the judges. There is deep and vocal hostility to Brexit among the legal profession and especially the Bar, who have on the whole profited handsomely from the status quo. Furthermore, the judiciary has spent much of the last 20 years accumulating quasi-legislative power, inspired by the European Courts, EU law, the Human Rights Act and the US Supreme Court. They will not give it up lightly and last week’s decision needs to be seen in that light. If correct, it means that a decision of Parliament is needed to abrogate a double taxation treaty. That is a novel interpretation to put it mildly…..

    I do not believe Scotland will secede unless the Scots want to be bankrupt and outside the EU. The SNP are simply using the threat of a second referendum to extract more cash from London. May should simply call their bluff.m

    Last but not least, Burke’s comments on the role of an MP are an outmoded relic from an age which did not believe in universal suffrage and where Parliament was even more bedevilled by patronage, vested interests and a corrupt voting system than it is today. The June 2016 referendum produced a clear outcome in the largest popular voting exercise in living memory where, crucially, every vote actually counted……unlike in Westminster elections. It is therefore pretty strange to regard the referendum as “dubious”.

    • Thank you, Michael, and I’m sure we’re on the same page.

      I’m going to write more on the nature of regime-change, but history suggests that elites that refuse to reform get removed violently. They also, usually, get several chances before the final die is cast. So much is this the norm that one wonders why any elite ever tries to tough it out. In Russia, Nicholas II was a half-wit. In France, Louis XVI was isolated in Versailles, kept from the truth by a clique that was wedded to its privileges. On revolution, the British ruling class has usually known when to reform – 1832 comes to mind, though they had a pretty close shave in the 1920s.

      So, why resist? Usually, not just greed but arrogance is involved – and we’re certainly seeing this from those who deride pro-Brexit voters as idiots, bigots and so on. The experts who supported Remain had often been the same people who supported membership of the ERM and then the Euro, so cannot logically be too surprised at being ignored.

      There is huge arrogance, as well as colossal greed and graft, bound up with neoliberalism – which, incidentally, has close-to-zero logic supporting it. So, whilst I too hope for a peaceful transition, I wish I could be more confident…..

    • Well, most countries do……

      I couldn’t believe the choice of Bush over Gore – my faith was restored with Obama in ’08 – this time I don’t know. I do not agree with Trump, though I do suspect that his statements are reported in a somewhat loaded way. My problem, were I American, would be that I could NOT, under any circumstances, vote for Mrs Clinton.

      What a dreadful choice!

  6. As always, Dr Morgan, your assessment is well informed and interesting. In response to your assertion that the Establishment must embrace Brexit, I would just ask “Why?”

    You identify that the elite have not done a good job in governing the country (and to be honest the creation of a self serving elite has been a persistent criticism of democracies for millennia), but why would they embrace something they detest? One of the facets of the Establishment is that it isn’t organised as a single bloc, but represents the combined weight of vested interest, the political and financial elite, and of the incumbent administrators. Collectively they exert power in a collective yet barely co-ordinated manner. Thus the broader downsides of obstructing the outcome of the referendum and further corroding public confidence in the process of government may be minor issues in the calculations of individual factions who are part of the Establishment.

    An outcome Brexiteers might prefer would be for Parliament to do two things: 1) to go ahead, obstruct the government and defy the result of the referendum, and 2) then (in consequence) a vote to dissolve Parliament. The Conservatives should then fight the election on a Brexit ticket, Labour and the nationalists will certainly remain stridently pro-Europe. Whilst it may be unwise to forecast a Conservative win, the weak and disordered ranks of Labour would seem an unlikely next government. The pro-EU ranks of the Conservatives would have to accept a manifesto Brexit commitment, or go elsewhere, and in the event of a Tory win that also cleans up the internal dissent that still exists for the Conservatives.

    Presuming a Tory win, that would hand Brexit on a plate to Mrs May, and the liberal elite are clever enough to see that. The obvious tactic for them must be to exploit the epic mess created by David Cameron’s mypopic masterpiece, the Fixed Term Parliaments Act. The Establishment (primarily through the Labour and minority opposition parties plus a few Tory rebels) seem likely to opportunistically block Brexit if the Supreme Court upholds the High Court judgement. But rather than support a general election that they stand a high chance of losing, the obvious thing is to cause mischief by not providing the two thirds majority that the FTPA demands. I’m not sure how such an impasse would end, but I would suspect that the Remain camp would simply hope to put off an Article 50 notification as long as possible, obstruct government decision making, whilst hoping for economic circumstances to become worse and public sentiment to shift more in their favour. This of course would dramatically worsen the democratic deficit that exists in the UK and fully realise a constitutional crisis. The prolonged uncertainty would be particularly bad for business, although the Remain camp would rationalise this as being less bad than their view of the economic end of times that they associate with leaving the EU – which comes back to my point about the calculations of cost and benefit being different for the power blocs that compromise the Establishment.

    • I think I explained why, as I see it, the establishment should accept “Brexit”. First, because the public voted for it. Second, because the establishment is skating on thin ice anyway. If you thought (as I did) that the headlines were unduly vitriolic after the court ruling, you can imagine what would happen if Westminster – rather than 3 judges – could be called “enemies of the people”.

      Yes, there are competing factions within the establishment – but there are major common interests too, including adherence to a status quo which is profitable for them, is familiar, and which enables them to impose their prejudices. I have been worried both by surveillance and by the growing encroachments into free speech.

      My other thought is that I wouldn’t assume a Tory victory. The same media which said that Trump couldn’t win the GOP nomination, and that “Remain” would win easily, now says that Corbyn is a no-hoper. I don’t agree with that. His support does not come from those who join focus groups and respond to phone polls, but from those contemptuous of the system, and from the young who feel they’ve been ripped off. If motivated, those are potentially very big voting blocs…..

  7. Hi Dr Morgan

    I’ve just finished reading Hans Herman Hoppe’s book: Democracy: The God That Failed.

    It’s a very interesting read indeed and I was intrigued to examine the connection between Hoppe’s ideas on the libertarian state and the doctrine of neoliberalism.

    On the surface they are very close and one might argue that the neoliberal project is the concrete expression of libertarianism but this in my view is quite wrong. The libertarian sees the supremacy of the rule of law whereas the neoliberal state sees the law as a tool rather than an overriding principle. In the neoliberal world the state is of very substantial significance whereas in the libertarian world it is much less so.

    I suspect Hoppe would regard neoliberalism as a total corruption of the libertarian ideals on which it purports to be founded. In this respect he might regard it as just another variant of the socialistic welfare state.

    The crux of Hoppe’s idea is that the idea of majoritarian democracy leads to the welfare state which incentivises all the wrong types of behavior – you take from the productive to give to the unproductive and it also leads to a short term approach to issues and a disregard of the long term. This leads inexorably to decivilization and decline which is precisely what we see about us.

    In some ways the alarming thing about Hoppe is the predictive nature of what he is saying and he gives numerous examples of this and, although one might be tempted to say it’s a case of post ergo propter hoc, it does not seem like that at all.

    My point in all this is that I agree that the neoliberal project is in its death throes but it may not be the only thing in that it may be that the whole political system we live under is in its death throes.

    Francis Fukuyama was hopelessly premature and probably quite wrong.

    • “The crux of Hoppe’s idea is that the idea of majoritarian democracy leads to the welfare state which incentivises all the wrong types of behavior”

      Actually that was pretty much the conclusion of a certain Austrian artist, would-be architect, and dictator in his quasi-autobiography. Now its out of copyright and you can get the book on your tablet for free it is well worth a read, although best to remember that starting a world war as a by-product of ones dissatisfaction with representative democracy is bit extreme.

    • Hoppe’s view of society is much more a return to very small states, somewhat along the lines of the patchwork that existed in Europe hundreds of years ago.

      The economic system would be a type of anarcho capitalism, anarcho being used in the positive sense, the whole edifice underpinned by the law, by which he means the immutable rules of society passed down over the ages not the man made legislation as we might mean.

      The small state and the primacy of the law are almost the exact opposite of the totalitarian state.

    • I would suggest that neoliberalism is a con. It claims lineage from Adam Smith but in fact contradicts him on almost every particular. Liberty does link with free markets, but not with “come what may”, oligopolistic, “law of the jungle” economics.

      And, for what it’s worth, I thought Fukuyama was wrong at the time – sadly, most such memorable sound-bites usually are – remember any of these?

      “The great moderation”?
      “Light-touch regulation”?
      “An end to boom and bust”?
      “BRICs”?
      “British jobs for British workers”?
      “The march of the makers”?
      “The Northern Powerhouse”?

      or even

      “Peace in our time”?

  8. I don’t dispute that since the majority voted for Brexit (albeit with some help from the billionaire tabloid owners), we must now proceed with a Brexit of sorts and do so fast.

    What I find scary is this view, which seems to be shared pretty widely, that “anything is better than the status quo” e.g. Trump, dismantling the EU, Brexit etc. Anyone who says this clearly has no sense of history.

    Hungary in the 1950’s was worst than our status-quo. China under Mao was worst than our status quo. Germany under Hitler was worst than our status quo. Syria, Iraq and Afghanistan now are worst than our status quo.

    I don’t dispute that huge wealth has been pilfered by the elite, who seem to “accidentally” enrich themselves at the cost of everyone else, but don’t pretend for one second that things couldn’t be any worse for normal people. Far from it – in historic terms, conditions for us plebs are better than they probably have been.

    Please get a sense of reality and a sense of history.

    • I should add Tim – that was aimed at commentators on your article rather than the article itself, which was excellent as usual!

    • I think I should sum up where I’m coming from on this. First, things could indeed be a lot worse than they are, if there is a wholesale overturning of the current system.

      Second, however, the elites (around the world) make this “even worse” outcome likelier every time they did in their heels, cling on to their excessive wealth and privileges, and refuse to reform.

      Reform is needed, not to bring about revolution – but to prevent it.

  9. Tim,

    The referendum result was far from conclusive with 51.9% in favour on a 72% turn out.

    I suggest that it would be normal in a vote of this nature to set a higher threshold, for example 50% of those eligible to vote as happened in the first Scottish Devolution Referendum.

    Secondly Parliament might usefully consider why the vote went the way it did. The clear message from many of the electorate was that the economics of the last 20 or so years had not worked for them with exploitive labour and housing markets and declining living standards.

    If Parliament were to say we don’t consider that given the very slim majority we cannot justify invoking Article 50 BUT we will address issues in the labour and housing markets them that might be a legitimate response

    • John

      I agree entirely that the vote was used as a protest – a way of kicking an establishment seen as greedy and exploitative. I’m convinced much the same happened in the US election. It is why the Italian government is likely to lose the referendum on 4th December, and why I think Marine Le Pen is likely to win in France next year. Incidentally, if “no” wins in Italy, there will be a demand to leave the euro – and the paralysis of Italian politics, following “Brexit”, is likely to cripple the EU anyway, whilst a Len Pen victory would probably finish it.

      I see this as a revolution, not unlike the overthrow of Communism in 1989. I am mulling the idea of a book on “economics of the popular revolution”……

      The question of percentage and turnout is more contentious. Since the UK does not have compulsory voting, those who chose not to vote can only be ignored, i.e. “Leave” won. We cannot know how abstainers might have voted – and both sides can claim them.

      If you look at the 2015 general election, the Conservatives won 36%, or just 25% of those who could have voted – yet no-one questions the validity of that election. The Conservatives got only 36% of the vote, and even Attlee, in 1945, got less than 50% of votes cast. In other words, that is the accepted way in which things are done. Also, far more people voted for “leave” than for any government since the war.

      In practical terms, setting a threshold looks to many like a fix – which is what many assume about governments these days!

      So, imperfect though it obviously is, I think it is decisive – because any attempt to change it would create a constitutional crisis.

    • drtimmorgan: “In practical terms, setting a threshold looks to many like a fix”

      Which it would be if applied retrospectively. If it were stipulated clearly up front well before the campaign or referendum itself, that wouldn’t be quite so bad.

    • John Boxall: “The referendum result was far from conclusive with 51.9% in favour on a 72% turn out. I suggest that it would be normal in a vote of this nature to set a higher threshold. for example 50% of those eligible to vote.”

      That’s convenient. But by that token, the ’75 referendum provided even less legitimacy for staying in the European Economic Community as it ‘settled’ the matter on turnout of only 64% of those eligible to vote ( 67% of those who bothered to vote, voted to stay in. ) But by your own criteria, those eligible to vote, the threshold of 50% wasn’t met, thus we should have been out of the EEC forty one years ago.

      John Boxall: “If Parliament were to say we don’t consider that given the very slim majority we cannot justify invoking Article 50 BUT we will address issues in the labour and housing markets them that might be a legitimate response”

      No it wouldn’t. There has frequently been government returned on relatively slim majorities, and not once did the party returned stand up and say, ‘You know, we won the election on a slim majority, we’re now going to adopt the policies of the losing party’.

  10. “Their ruling is not political, but concerns a point of law – can a major constitutional change (and “Brexit” is surely that) be made by the executive alone, or must Parliament be consulted?”

    Of course, Parliament was consulted. Unless they are particularly stupid, during their deliberations on the EU referendum bill, they discussed the ramifications of the referendum and the implications of staying or leaving, ipso facto Parliament has given its opinion and chose to hand off the decision to the population, in the full knowledge that it would be; a) an abrogation of their role, and b) similar to the toss of a coin.

    The signing of treaties have since time immemorial been the prerogative of the Crown. The consolidated Treaty of Lisbon is no different. They are after all, contracts between States, and the head of State is the representative of one state to another, with the vested authority of that State to act on the international stage.

    Brexit isn’t a ‘major’ constitutional change, rather a normalisation of British legitimate constitutional rule after a forty three interregnum.

    Regards

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