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Sionaidh Douglas-Scott: Brexit, the Referendum and the UK Parliament: Some Questions about Sovereignty

Sionaidh Douglas-ScottSo, we have the result of the Referendum, and a majority of voters have voted to leave the EU. A mantra of Leave campaigners seems to have been the desire to ‘take back control’. There has been much talk of sovereignty, although less clarity on what it actually means. However, at its most basic, there are at least three notions of sovereignty that are relevant in the context of Brexit, and they are often confused. The first is parliamentary sovereignty, which is said to have particular resonance in the UK because, due to the vagaries of the uncodified UK Constitution, the Westminster Parliament has been recognised as a body with unlimited legislative power. Yet the parliamentary sovereignty of a representative democracy may seem to be at odds with popular sovereignty as exercised in a referendum. Popular sovereignty also has other implications, such as in Scotland, where an indigenous Scottish tradition claims that sovereignty resides in the Scottish people, in spite of the alternative claims of Diceyan parliamentary sovereignty. Thirdly, there is external sovereignty: whereby a country may be sovereign and recognised as independent by the international community. But states recognise that international agreements such NATO, or EU treaties, curb sovereignty in practice. However, these constraints are willingly accepted by states because of the benefits that pooling or ceding some sovereignty can bring – indeed it can even enhance sovereignty in another sense of a state’s power or ability to deal with certain issues.

These are three different concepts of sovereignty, but they have become very confused in the context of Brexit and the UK’s relations with the EU. Now we have the results of the Referendum vote, what are the implications of ‘taking back control’ for sovereignty? This blog examines three specific issues arising in the immediate aftermath of the Brexit vote which reveal the extent of confusion over sovereignty.

  1. The Referendum

The referendum result is not binding

The Referendum vote is an expression of popular sovereignty. But referenda have not been a highly significant feature of UK Constitutional law in the past and there is still uncertainty as to their place in our Constitution. Labour MP David Lammy has called on Parliament to ‘stop this madness’ and to vote in Parliament against the referendum decision to leave the EU. A large majority of MPs are in favour of remaining within the EU, so Parliament would not pass legislation to leave the EU unless it felt compelled to do so by popular demand expressed through a referendum. Could Parliament actually vote against Brexit? According to classic, Diceyan notions of sovereignty, if Parliament is actually sovereign it can legislate to do anything, including to ignore a non-binding referendum. The EU in-out Referendum is a creature of the European Union Referendum Act 2015. There is no requirement in the Act that the UK Government implement its results, nor does the statute set any time limit for implementing a vote to leave the EU. It is a pre-legislative, or consultative, referendum, enabling the electorate to express its opinion before any legislation is introduced. The 1975 referendum on the UK’s continued membership of the EEC was also an example of this type. In contrast, the legislation setting up the Alternative Vote (AV) referendum held in May 2011 (Parliamentary Voting System and Constituencies Act 2011)  would have introduced a new system of voting without further legislation, although this did not happen because there was a large majority against change.

So whether a referendum is legally binding depends on the structure of the legislation which enables it. Parliament decides that. The UK does not have a codified constitution with provisions requiring referendum results to be implemented, unlike, for example, Ireland, where the circumstances in which a binding referendum is held are set out in its Article 47 of its Constitution. Indeed, even those UK referenda that appear to dictate consequences, such as the AV referendum, are not completely binding, in the sense that Parliament (due to parliamentary sovereignty) could in any case repeal the legislation creating the obligation.

However, although there may be no legal obligation to abide by the result of the referendum that is not the same as saying there is no political commitment to do so, and MPs may feel a strong obligation to act on the results of the vote, especially if they fear reprisals from their electorate in the form of being voted out of office at a future election. So popular sovereignty and parliamentary sovereignty appear to be at odds. Which, if either, ought to predominate?

A major constitutional change

If implemented, the result of the EU referendum vote institutes major constitutional change on the basis of a fairly small majority of voters. Again, because of an uncodified constitution, the UK lacks specific mechanisms for constitutional change. However, many jurisdictions require a clear constitutional majority for major constitutional change. The US federal Constitution is well known for making constitutional amendment extremely hard to achieve.

In the context of referenda, it is sometimes suggested that some sort of threshold vote is appropriate to ensure both the legitimacy and acceptance of the outcome of a referendum exercise. For example, Lord Lisvane, former clerk of the House of Commons suggested that a very small margin on a very low turnout could lead to claims it was ‘not sufficiently decisive’ for Britain to leave without a second vote on the terms of exit. This would imply that a vote for major constitutional change, such as leaving the EU, is significantly different from voting in ordinary elections, and so it should be the result of something more than merely a bare majority of the votes. Indeed, in the UK, referenda have sometimes instituted forms of special majority, such as a specified level of support in terms of votes, or a specific turnout, as was the case in the Devolution referenda of 1979 (which failed to achieve these requirements). It has also been suggested that a ‘double referendum’ could be necessary in some cases, namely an issue should be put to the voters twice before it is enacted into law. At time of writing, there have been calls for a second referendum on EU membership, requiring a specific percentage of votes and turnout, and a petition to achieve this had resulted in a considerable number of signatures (although the authenticity of some had been doubted). Bruce Ackerman, writing in 2011, suggested in the London Review of Books that major constitutional issues should be put to the voters twice before enacted into law, and that this would help the thoughtfulness of voters’ decisions. Ackerman also warned of the dangers of referenda systems: ‘a poorly designed system could serve as a platform for pandering to the worst instincts of the public, as countless demagogues have shown since Napoleon first demonstrated the abusive potential of referendums in the aftermath of the French Revolution. At present, Britain is drifting down this path.’

A key argument of Brexiteers has been the need to restore powers and sovereignty to Parliament, but referenda may actually sometimes be at odds with parliamentary sovereignty. All three main UK parties officially favour Remain. As former Cabinet secretary, Lord Butler has suggested, it seems paradoxical to give powers back to Parliament to do something it does not want to do.

So the Referendum, as an expression of popular sovereignty, is seen as sometimes to be mistrusted, especially where its results threaten major constitutional change. But perhaps the best antidote to that is not countervailing parliamentary sovereignty (which may also be subject to short-termism or particular bias) but instead considered constitutional principle, which many countries have set in written constitutions to control major constitutional change, whether instituted by referendum or other form. Without a codified or more substantive constitution, the UK lacks any clear such principles.

  1. Art 50 of the Treaty on European Union (TEU)

Art 50 TEU, previously little known and less discussed, is now a very hot topic. Its role in Brexit raises some further questions about sovereignty – although this time, the question is of Parliament’s role in an action that seems executive dominated.

Art 50 is the treaty provision that controls the UK’s exit from the EU. It was inserted into the EU treaty by the Lisbon Treaty amendments in 2009 and gives some details as to how withdrawal negotiations are to be conducted. For example it states how the EU will conduct its side of the negotiations, that there is a 2-year renewable deadline for the negotiations and provides the voting arrangements by which to reach an agreement (weighted majority) or to extend the deadline (unanimity). Art 50 decides the terms of separation, rather than setting out the details of any UK future trading relationship with the EU, which would be determined in a further agreement (and would require unanimity).

It appears the UK would now like some time before it gives formal notification under Art 50 TEU. There are advantages in waiting. It will provide time to a formulate a negotiating strategy, which at present does not appear to exist. The clock on withdrawal does not start to tick until such notification. Once notification has been given, then after 2 years the UK can be ejected from the EU if no withdrawal agreement has been concluded and there is no unanimity for extending the time period. On the face of things, the timing of notification seems to be up to UK, although the EU has been urging the UK to act swiftly.

Constitutional requirements

What about the UK? How is it to conduct its side of the negotiations? The starting point is that Article 50 states that

‘1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention.’

What is meant by this reference to the ‘constitutional requirements’ of the member state concerned? As domestic constitutional matters, these are rightly not dictated by the EU and we need to look at UK constitutional law to see what they are. However, UK Constitutional law is unclear on this matter, partly because there is no codified constitution in the UK specifically dealing with the matter. The assumption so far seems to be that it is the Prime Minister, using prerogative powers, who will give the formal notice to withdraw under Art 50, and that negotiations on the UK’s withdrawal would be conducted by Ministers (or civil servants, diplomats, or possibly others – opposition ministers, and members of the devolved administrations, given the constitutional importance of the talks?) Negotiations to enter into Treaties are usually seen as the province of Government Ministers acting under their prerogative powers (see Ministry of Justice Consultation Paper 26/2007).  But does the UK Parliament have a role? Parliament is involved in the ratification of treaties under Part 2 of the Constitutional Reform and Governance Act 2010. Parliament would in any case inevitably become involved since the European Communities Act (ECA) 1972 would have to be repealed (and replaced with appropriate new legislation).

But could Parliament actually insist that its consent is required before the Prime Minister can trigger Art 50? If leaving the EU is about taking back control and regaining parliamentary sovereignty, should not Parliament play a key role in this process? As there is a large majority of MPs who wish to remain in the EU, the question of who determines whether/when Art 50 should be triggered is certainly relevant.

A couple of factors suggest that Parliament may need to be involved at an early stage. First, we can see a growing constitutional convention that prerogative powers are subject to parliamentary approval, as was evidenced by the Commons vote on Syria in August 2013 (see here).  Second, given that a Parliamentary majority will be needed to repeal/amend the ECA in any case, and that it may be some time until formal negotiations are opened, by which time there may be a new government, there will at the very least be a political requirement for parliamentary approval – a resolution, or preferably a majority vote. A parliamentary committee such as the European Scrutiny committee might also wish to take evidence on the matter, thus delaying formal notification.

However, in the absence of a codified constitution, and given the application of Art 50, a treaty provision which has never been used before, the constitutional requirements are unclear. The UK government will be accountable for the outcome of the negotiations to the UK Parliament, although not directly to the public. For example, it was in this way that negotiations with Ireland leading to the Anglo-Irish treaty and Irish Free State were handled in 1921/22, and indeed all other independence negotiations conducted by British governments since then have followed the same principle of parliamentary accountability. But can Parliament require more? After all, it is a statute – the ECA 1972 – that sets out in domestic law the UK’s relationship with the EU, and EU law’s binding effect in the UK, and on withdrawal, Parliament will have to repeal this statute and institute new legislation. Must it authorise the executive to start the unravelling of a process that will lead to the ECA’s repeal? Once again, we see a lack of certainty as to what sovereignty means in this context.

  1. Is there an alternative to Art 50 TEU?

A final example illustrates another conundrum of sovereignty. The possibility of ignoring Art 50 has been canvassed by some Brexit campaigners. For example, John Redwood, MP was reported in the Financial Times as suggesting that ‘a lot of us don’t think there is any need to trigger Article 50 any time at all.’ He has advocated changing UK law by, for example, repealing the ECA 1972 (without triggering Art 50 TEU) and so unilaterally ending the application of EU law in the UK. Similar variations have been mentioned by other pro-Leave campaigners, such as the adoption of UK legislation declaring that the UK will leave the EU on a certain date, as well as legislation addressing particular aspects of EU law, such as curtailing the power of EU judges and changing rules on EU migration. This suggests that Parliament can take control of the withdrawal process, enacting its own legislation, and short-circuiting the need to follow Art 50 treaty procedures and EU law. Domestic law rather than EU, or international law, is seen as governing withdrawal. This suggests a strong parliamentary sovereignty, governing all things, including our relations with other states, and the ability to unilaterally ignore our treaty obligations.

We should be very clear that, if taken prior to (or in the absence of) formal withdrawal from the EU treaties under Art 50 (likely to take a minimum of 2 years) such actions would clearly violate both EU law and international law. To take EU law first – adopting national primary legislation in breach of EU law would have repercussions. Although there is no mechanism in the EU treaty whereby a member state may be ejected from the EU against its will, Art 7 TEU permits the EU to suspend the membership of a state, where it is found to breach EU values in Art 2 TEU (which include non-discrimination, which would certainly be at issue if the UK  suspended EU citizens’ rights in the UK). Art 7 TEU, like Art 50, has never been used, and its procedures are quite involved (votes must be taken from the other member states and the European Parliament must give its consent) and in any case, it might be said, that if the UK is withdrawing anyway, what objection could it make to suspension of its membership? Nevertheless, if the very first activation of Art 7 TEU (a procedure that was introduced by the EU to deal with the perceived threat of Jorg Haider’s far-right Freedom party in Austria) were against the UK, this would be an uncomfortable message for the UK to bear, suggesting that it deliberately violated values such as freedom, democracy and the rule of law. Aside from Art 7 TEU, violation of EU law by the UK would open it to enforcement actions being brought against it by the European Commission under Art 258 TFEU (or indeed by another member state which felt that its citizens had been discriminated against under Art 259 TFEU). There is provision for financial sanctions to be imposed in such a case, which could be considerable.

Further, any national legislation deliberately violating EU treaties would be unlawful in international law and harmful to the UK’s reputation. All treaties involve some voluntary restriction on our freedom of sovereign action (which states have accepted). That includes particular stipulations for renunciation and withdrawal from treaties. As former UK Attorney-General,  Dominic Grieve wrote in The Times Legal Brief:

‘So in arguing that the UK should simply tear up our EU treaty obligations by using parliament to enact legislation in breach of them, the Brexiteers, including our Lord Chancellor, who takes a special oath to uphold the rule of law, are proposing something revolutionary and lawless. It would send the clearest message to the world that our long stated policy of observing the terms of international treaties is finished. No reliance could henceforth be placed on our honouring any international obligation.

No Attorney General could sanction it.’

The attempt to use national legislation to revoke EU membership also confuses sovereignty. It conflates parliamentary sovereignty with external sovereignty, suggesting that the UK can use Parliament and domestic law to govern its relationships with other states and international organisations under treaties, because of some misplaced idea of parliamentary sovereignty. That is not how national sovereignty functions in the international arena. States observe treaties and join international organisations because they know that in ceding some freedom in certain areas, they are actually gaining a greater benefit from pooling sovereignty or accepting certain obligations. There are rules set out in international law, and in treaties, as to how these obligations function and states cannot simply assert parliamentary sovereignty to circumlocute them.

Therefore, the immediate aftermath of Brexit shows the notion of ‘taking back control’ and the concept of sovereignty to be contested and multiple in the UK’s ‘unsettled constitution’ (see further here and here). Taking back control may ultimately lead to losing it.

Sionaidh Douglas-Scott, Anniversary Chair in Law, Queen Mary University of London

(Suggested citation: S. Douglas-Scott, ‘Brexit, the Referendum and the UK Parliament: Some Questions about Sovereignty’, U.K. Const. L. Blog (28th Jun 2016) (available at https://ukconstitutionallaw.org/))

26 comments on “Sionaidh Douglas-Scott: Brexit, the Referendum and the UK Parliament: Some Questions about Sovereignty

  1. truthaholics
    June 28, 2016

    Reblogged this on | truthaholics and commented:
    “Therefore, the immediate aftermath of Brexit shows the notion of ‘taking back control’ and the concept of sovereignty to be contested and multiple in the UK’s ‘unsettled constitution’ (see further here and here). Taking back control may ultimately lead to losing it.”

  2. Pingback: BREXIT: THE LEGAL CONSEQUENCES: USEFUL LINKS | Civil Litigation Brief

  3. Tom Austin
    June 28, 2016

    Thank you for this clarification. [I must admit though, I like it perhaps because I agree with it.]

  4. Andrew Dettman
    June 28, 2016

    Reblogged this on Life is Returning and commented:
    “Bruce Ackerman, writing in 2011, suggested in the London Review of Books that major constitutional issues should be put to the voters twice before enacted into law, and that this would help the thoughtfulness of voters’ decisions. Ackerman also warned of the dangers of referenda systems: ‘a poorly designed system could serve as a platform for pandering to the worst instincts of the public, as countless demagogues have shown since Napoleon first demonstrated the abusive potential of referendums in the aftermath of the French Revolution. At present, Britain is drifting down this path.’”

  5. Laypersonlaw
    June 29, 2016

    An additional point suggesting Parliament must give consent before any PM invokes Article 50, even if that PM intends to rely upon prerogative powers to do so:
    Article 50 is for members that have decided to leave.
    Does the UK qualify? Has its competent legal authority “decided”?
    As of now, no such legal decision has been made as the referendum does not have legal force.
    So, before invoicing Art.50, there needs to be a legal decision ratifying the advice the voters gave. Else Art50 doesn’t even apply and cannot rightly be invoked.o
    Some have said this point is dancing on the head of a pin but, since it appears it was Parliaments intent to not make the referendum legally binding and decisive, I think it is not. Parliament had its reasons and Parliament is sovereign.
    Whether a PM will ever ask Parliament, and what Parliament says, is a matter for politics not law. Whether he or she should ask Parliament seems unarguable both for this reason and in order to use prerogative powers that would effectively repeal (or hollow out of its content) a Staute (the ECAct).

  6. Jim South
    June 29, 2016

    When considering these constitutional issues, it is important to distinguish between UK constitutional law as it is and what one would like it to be. There is no constitutional requirement for a second referendum or for any supermajority of voters or members of Parliament to achieve a withdrawal from the EU.

    There is also an argument that withdrawal from the EU would not expressly or impliedly amend or repeal the European Communities Act 1972. According to this argument, the Act would remain in place but cease to operate, as a necessary factum for its operation would no longer exist.

    As to whether the consent of Parliament is required for the withdrawal, the Supreme Court could take the view that the executive is accountable to Parliament for any exercise of prerogative power, and that Parliament has the option of enacting legislation to regulate or limit the exercise of prerogative powers. On that view, there is no requirement to obtain the consent of Parliament for the withdrawal, but Parliament has the legislative power to prevent the withdrawal.

    • Laypersonlaw
      June 29, 2016

      But could not a challenge then be made under EU treaties in terms of whether the “decision” has actually been made?
      If there is not a legal decision (if) then Article 50 cannot be invoked, on it’s own terms.
      This is not a political argument that parliament should debate and discuss further but a legal point that until we are certain there is a decision, Art50 cannot be invoked.
      Certainly the act of invocation by a PM, using prerogative power, cannot rightly simultaneously be said to constitute both the notification of the decision and the act of making that decision (which is clearly a two step process in the treaty). Surely?
      If Parliament saw fit to exclude any automated legislative provisions in the Referendum act, can any constitutionalist seriously feel comfortable with prerogative powers being used to both “make” the decision and to then invoke Art50 and set that ball rolling. Parliament did not appear to intend this.
      What irony, in all of this, if we find Parliaments rights determined in a European court.
      A travesty for anyone protesting the importance of upholding or restoring parliamentary sovereignty.

  7. Pingback: Brexit, the referendum and the UK parliament: some questions about sovereignty | The Constitution Unit Blog

  8. Marco
    June 29, 2016

    This article is completely missing the point of view of us: the 27 countries who were slapped in the face by UK. Do you really think that UK “can remain in paradise in spite of the Saints” through the recourse to some constitutional trick? No you cannot.

    • 0101010011010100101d
      July 3, 2016

      Great work legal people, if only somehow we can stop the madness of Brexit.
      I respect law far more than the ass that has been made of democracy in this country. Will of the people indeed…

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  13. fernando Rodrigues
    July 12, 2016

    If the UK Constitution is made up of legal precedents and as no referendum result has ever been rejected by parliament, can we not be assured that results of referendums are Constitutionally binding by virtue of precedents and by virtue of the fact that Referendums are a result of direct mandate which by definition is superior to indirect (or devolved by the people) sovereignty and also by virtue that the intention of a Referendum result is always that of a final decision?

    • Laypersonlaw
      July 13, 2016

      I think not. The source of the legal authority of any UK referendum is Parliament and the nature of that devolved authority is provided by the relevant Act of Parliament providing for the referendum in question. In the case of the recent referendum for AV voting reform, the applicable Act provided for legislation to follow if there was a pro AV vote. In the Brexit referendum Act there were no such provisions. One interpretation of that omission is that Parliament had intended to reserve for itself the final decision on Brexit. The legal position therefore being that Parmiament is yet to decide. Clearly, a political or moral authority may flow from the Rederendum outcome (and Parliament may be persuaded that it’s own decision should be influenced by this). However, I cannot concur that a plebiscite is necessarily democratically superior to a Parliamentary decision in this representative democracy. Firstly, the word representative is just as inportant; it means entrusting others to spend the time considering complex issues, listening to experts and acting in our interests. Also, as explained, the very source of the legal authority of the referendum is an Act of Parmiament; authority has flowed from Parliament to people and not the other way around. Parliament is Sovereign, it makes laws, we have the rule of law. That’s representative democracy in the UK. Referenda are an oddity to it, especially where the choice offered is not “A” or “B” but, as with Brexit, “A” or “Not A”… The ability to reject something without knowing the alternative. How many Brexiters voted for a known outcome? None. By any standard, including the electoral commissions, that makes it poorly conceived as a choice presented in a question. Not two alternative known outcomes but one known and the other still years away from being clear. Who is to say that 52% all voted for the same thing? Some maybe wanted zero immgration and repatriation of EU nationals living in the UK today, others will trade some ongoing EU migration for a degree of single market access, a recalibration. What solution will satiate both? Which of these outcomes is there a mandate for? The trouble is that while we know what people voted against we have no clue what people actually voted for. Therefore we cannot possibly know whether what we end up with would be considered a better option by 52% (or actually by just 3% of them – enough mind changers to change the entire result). I’d wager that, if there were a way to ask them, at least 3% of the 52% will think the Brexit settlement is not what they wanted and would rather stick with what they had. Probably many more.
      Maybe we should invent a sort of place and system where we send people to take time and effort to consider such complex issues on our behalf and then hold them to account for it? We could call it a “Parliament”… There’s a reason two eminent 20C. politicians called referenda the tool of “despots and demagogues”. Atlee and Thatcher will have agreed on little else but on that they were surely right. In the case of Cameron, perhaps we can add “desperate”, to defeat UKIP, win an election and save his party and his job. Vote won, job gone, UKIP emboldened and we will see where the Party is once real Brexit discussions begin.

    • Ben Taylor
      August 25, 2016

      the intentions’ of our parliament (as they are parliament’s intentions) must be a matter for them to decide. This is why the people of the United Kingdom deserve more than having an argument of precedent based on the few and very specific referenda, that have been held earlier, to be used as a reason to by pass parliament and to simplistically action the referendum result held on the 23rd June. A referendum which resulted in a marginal vote to leave the European Union but in which less than a third of those registered to vote voted. The referendum construction and implementation is now also generally considered to be flawed and fully discredited.

  14. iniref
    July 15, 2016

    Sionaidh Douglas-Scott wrote:
    “Yet the parliamentary sovereignty of a representative democracy may seem to be at odds with popular sovereignty as exercised in a referendum. ”

    I am not convinced that parliamentary sovereignty must be at odds with “popular” sovereignty. With “popular sovereignty” I assume you imply that political power in the state belongs to the people and that, to echo the Covenant on Civil and Political Rights ICCPR, this power can be exercised directly, as in referendum and indirectly as in electing politicians to a parliament. At elections the voters (exercising their political rights) loan power to and mandate MPs who are then expected to hold political power and to legislate during the parliament’s life. It is accepted that the elected parliament can supervise and over-rule all bodies, companies, plus all other entities and persons in the state. This is the nature and expression of “parliamentary sovereignty”. With “parliamentary sovereignty” the parliament can apply the power of the people to control and manage public affairs. Should however the people wish to select and decide on any issues of governance, exercising their “direct” political rights, then they are entitled to do so. Methods which enable an electorate to apply these direct political rights include the people’s law proposition which can lead to legislative referendum and the citizen-launched veto-referendum which can be used to block bad or unwanted government or parliamentary actions or laws.

    Further, you wrote,
    “So the Referendum, as an expression of popular sovereignty, is seen as sometimes to be mistrusted, especially where its results threaten major constitutional change. But perhaps the best antidote to that is not countervailing parliamentary sovereignty (which may also be subject to short-termism or particular bias) but instead considered constitutional principle, which many countries have set in written constitutions to control major constitutional change, whether instituted by referendum or other form. Without a codified or more substantive constitution, the UK lacks any clear such principles.”

    For the future of our democracy, for constitution building and also as a way to resolve some uncertainties in the Brexit drama, we should consider urgently introducing state of the art, modern democracy (see e.g. Swiss and other regulations and Constitutions re. political rights). Regarding brexit: Serious commentators have suggested that a second EU referendum should be held, to allow the people of the UK, this time having knowledge of terms and conditions negotiated with the EU and better informed about the whole issue, to consider whether we should leave or decide to remain in the European Union. A referendum desired and launched by a large part of the electorate would have more weight and democratic legitimacy than a “plebiscite” like the brexit ballot which was in effect imposed by a government, as a way to solve its own schism and to fend off the election threat posed by UKIP.

    Michael Macpherson B.Sc., (Manc.), MRCP (UK)
    Citizens’ Initiative and Referendum I&R ~ GB
    http://www.iniref.org/ Link to site index

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  16. Stuart
    July 17, 2016

    What this clarification has mainly clarified for me is that almost nobody, including David Cameron and swathes of the London parliament, knew much about what a referendum actually, is or how it should, or even could work.

    Am I right in thinking that we have just held one referendum to test the vox populi of three seperate nations and a provence?

    If so then which nation’s advice should Westminster choose to follow and which can it safely ignore and go against? Does the English provincial vote take priority over a national majority such as the Scottish vote? And priority over democratically elected Westminster parliamentary wishes? Does it take priority over the wishes of the people of the Province of Northern Ireland?

    It also seems clearer that very few people indeed understood anything much about what they were signing up to when joining the EU.

    However, I particularly liked the piece about Art 7 TEU.

    “Art 7 TEU permits the EU to suspend the membership of a state, where it is found to breach EU values in Art 2 TEU (which include non-discrimination, which would certainly be at issue if the UK suspended EU citizens’ rights in the UK).”

    It seems to me that Westminster was already in breach of such EU values in relation to non-discrimination when it decided to exclude a great many UK tax paying citizens from exercising their right to be represented, or maybe more importantly, to represent themselves in the referendum vote, simply on the basis of where in the EU they live. These are British and EU citizens, my own Paris issued full British passport is clear about that.

    Maybe the EU should now simply suspend the UK and leave it like that… Would it save everybody a lot of trouble? Bring on the prophetic Ealing Studios masterpiece “Passport to Pimlico”.

  17. David McKee
    July 27, 2016

    As a mere layman, I have a question for the learned contributors present.

    During the Second Reading for the legislation which enabled the referendum to take place, Bill Cash said something very interesting.

    http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150609/debtext/150609-0002.htm
    9 Jun 2015 : Column 1086
    “In its report on referendums, the House of Lords Constitution Committee made it clear that a referendum would be primarily necessary in the event of a proposition that we leave the European Union, as opposed to mere nibbling at the treaties.”

    This seems to imply that the referendum was only nominally advisory. Is that a correct interpretation?

  18. Robert Proctor
    August 2, 2016

    As a British citizen I am currently also an EU citizen. Does the UK government have the legal right to remove my EU citizenship?

  19. Bertha emmanuel
    August 15, 2016

    What does the result of the EU Referendum 2016 tell us about the continuing significance of the doctrine of Parliamentary Sovereignty in modern UK constitution?

    • Stuart Nimmo
      August 26, 2016

      Bertha, apparently it “tells us everything and nothing” about anything very much. Depressing isn’t it?

    • Dr. Michael
      August 26, 2016

      People’s political rights and sovereignty after the Brexit ballot. Easy but effective ways to improve our democracy.

      Many voted for Brexit in order to “take back control” of our country from faceless bureaucrats in Brussels. But did we ever stop to think about what control WE  46 million plus voters, citizens have over parliament and the politicians we elect to “work for us”?

      It is accepted that the elected parliament can supervise and over-rule all bodies, companies, plus all other entities and persons in the state.

      This is the meaning of “parliamentary sovereignty”.

      With “parliamentary sovereignty” the parliament can apply the power of the people to control and manage public affairs.

      However if the people wish to select and decide on any public issue, exercising their “direct” political rights, then they are entitled to do so.

      Methods which enable an electorate to apply these direct political rights include the people’s law proposition which can lead to a law-making referendum and the citizen-launched veto-referendum which can be used to block bad or unwanted government or parliamentary actions or laws.

      For the future of our democracy, for constitution building and also as a way to resolve some uncertainties in the Brexit drama, we should urgently consider introducing best possible, modern democracy (see e.g. Swiss and other regulations and Constitutions about political rights).

      Regarding Brexit: Serious commentators have suggested that a second EU referendum should be held, to allow the people of the UK, this time having knowledge of terms and conditions negotiated with the EU and better informed about the whole issue, to consider whether we should leave or decide to remain in the European Union.

      A referendum desired and launched by a large part of the electorate would have more weight and democratic legitimacy than a “plebiscite” like the Brexit ballot which was in effect imposed by the Conservative government, as a way to solve its own internal feud and to fend off the election threat posed by UKIP.

      Dr. Michael

      Campaign for direct democracy in Britain
      Citizens’ Initiative and Referendum I&R ~ GB

  20. Stuart Nimmo
    August 26, 2016

    Did the Brexit Referendum result change the juxtaposition and result of the Scottish Referendum? As Scotland voted remain has it become England and Wales that have voted to leave the UK by voting to leave the EU? Northern Ireland and Scotland voted for the Status Quo so who is to deprive them of that?

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