Critique of the Government’s Legal Case for Triggering Article 50

 

I’m not a lawyer and have no legal training but the following is what I would want to say if I had the job of attacking the Government’s resistance to The People’s Challenge on the serving of notice to leave the European Union under Article 50 of the Treaty of European Union.  This resistance was published by order of Justice Cranston in the High Court on 27 September 2016:

jolyonmaugham.files.wordpress.com/2016/09/defendant_s-detailed-grounds-of-resistance-for-publication.pdf

As a non-specialist, I’m not competent to judge on the technical intricacies of this case and there are many paragraphs on which I’m not qualified to make comment.  Nonetheless, it seems to me that certain basic matters of principle are at stake in this case which ought to be evident to all.

I draw here simply on my own argumentative skills as someone with a UK doctorate in philosophy, as well as a Masters from the University of Paris and a second doctorate from the University of Erfurt in Germany – all thanks to my current EU rights of citizenship, soon to be taken away if Brexit passes.

I respond under 6 main headings as follows:

  1. Was the referendum held on a clear understanding that its result would be binding?
  2. Has a decision to leave already been made?
  3. Is this matter a purely political one, beyond the domain of the law
  4. Is this matter a purely administrative one
  5. Will UK citizenship rights persist after commencement of a step to withdraw
  6. Is there a sustainable distinction between foreign and domestic affairs relevant to this case?

 

Was the referendum held on a clear understanding that its result would be binding?

1.  The Government asserts that “it was clearly understood” that it would give effect to the result of the referendum and that this was “the basis on which the electorate voted”. This, it asserts, “was the obvious premise on which the referendum was undertaken” (5:2, 12:1, 12: 2).

2.  Exactly when, where, by what or by whom was this “clearly understood”? Where was the premise “obvious”?  What evidence does the Government give for this claim?

3.  The 2015 EU Referendum Act provides no evidence at all for the claim. Unlike the 2011 Referendum Act on AV, the 2015 EU Referendum Act contained no section on result or criteria of implementation.  It did not specify that if a threshold were passed, the Government would give effect to any result.  On the contrary, House of Commons Briefing Paper 07212, published to accompany passage of the legislation through Parliament in June 2015, explicitly stated the following: “This Bill requires a referendum to be held on the question of the UK’s continued membership of the European Union (EU) before the end of 2017. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution”.[1]

4.  If, as the Government asserts, it “had been very clear” on the matter, why did it not make itself clear in the one place that mattered – in statute for the referendum? Given that the Conservative Party had previously stated in its election manifesto of April 2015 that it would respect the result of the referendum, why did it not take care to reproduce this pledge in the one and only place that could have possibly given the pledge legal authority?

5.  A manifesto pledge has no legal authority in itself; only statute has such authority. A manifesto pledge can be broken; a law cannot.  Not all parts of the Conservative Party’s manifesto have been honoured to date; and not all parts of a party election manifesto typically are honoured by an elected Government.  Therefore, why should the referendum part of this party’s election manifesto occupy a privileged place – an even more privileged place, it would seem, than the supreme authority of statute?  Only statute passed by Parliament has ultimate authority and only this can supply the true basis of legitimacy for conduct of a referendum.  Government literature, governing party literature, ministerial spoken word and alleged oral understanding between Government and members of the electorate form an at best secondary basis of legitimacy.

6.  The Government’s appeal to “a clear understanding” of the electorate regarding the referendum is vague and unsubstantiated. The Government cites no evidence of any plurality of individuals voting on this understanding.  The sole piece of evidence it supplies is a remark it cites in footnote 1 under paragraph 12:1 by Baroness Anelay of St. Johns in the House of Lords on 23 November 2015, recorded in Hansard.  It asserts that this remark dispels “any doubt” about the “obvious premise on which the referendum was undertaken”.  Yet the quoted remark scarcely dispels any doubt at all.  A single utterance by a little-known peer in the House of Lords, 7 months ahead of polling day, is hardly evidence for an “obvious” understanding held by an entire electorate of 46 million eligible voters.

7.  The Government states that it “has made it clear that it respects the outcome of the statutory referendum”. But this begs the question of whether it, and it alone, is entitled to act upon the outcome and not also parliament – and precisely this is in question.

8.  In this sentence and on at least three other occasions, the Government engages in petitio principii, i.e. question-begging or “petitioning for principles”. It asserts that it “sees no legal basis to prevent it from giving effect” to the outcome, but this begs the question of there ever being a legal basis requiring it to give effect to the outcome, which there was not (10).  Similarly, it asserts that “there is nothing in the Act to suggest that Parliament intended that the Government should only take the step of giving notification…if given further primary legislative authority to do so” (12:1).  However, the opposite is equally the case: there is nothing in the Act to suggest that parliament intended that Government should take this step without further legislative authority to do so.  Further, the Government asserts that it cannot be prevented from giving effect to the alleged decision “by the absence of primary legislation authorizing that step” (12:3); yet once more this begs the question of anything positively authorizing it to give effect to the alleged decision.  Nothing in the legislation says that it cannot, but nothing in it says that it can.

9.  The indeterminacy of statute on this matter entails just one unavoidable conclusion, namely that parliament should always have been involved in any decision on the matter, and should be involved now.

10.  By disallowing parliamentary involvement, however, the Government acts beyond the terms of its own statute for the referendum. In this sense, it acts beyond the spirit of the law – its own law.

11.  The Government accepts the description of the referendum as “advisory” but it questions the claimant’s use of this word by saying that it is “incomplete and inappropriate” when used to “imply lack of parliamentary permission to give effect to the result or some parliamentary requirement to return by primary legislation”. It is true that the result does not by itself imply lack of parliamentary permission to give it effect, but it does not imply parliamentary permission to give it effect either.  It implies a recommendation by the people to its representatives but it implies no obligation on those representatives to carry it out.  It leaves the decision whether or not to carry it out entirely with those representatives themselves.  This is the reserved sense of “advisory” in distinction to “binding”.  Something that is advisory to X is something that is not binding on X.  “Advise” does not mean “instruct”, “demand”, “insist” or “expect”.[2]   Therefore the claimant’s use of the word is correct.  It is complete in itself and in no need of supplementation.  The Government once again engages in petitio principii in begging for the logically negative (“nothing that says it can’t”) when the logically positive is equally valid (“nothing that says it can”).

12.  If parliament had agreed in advance to surrender involvement in treatment of a result, it could not have passed the statute that it did. As with the Act on the Referendum for AV, it would have instead passed an Act stipulating clearly that a result would be binding, on condition that the result passed a definite threshold based on a percentage of all eligible voters (the electorate) or alternatively on two percentages, one referring to a minimum proportion of votes cast and one referring to minimum proportion of participating voters (i.e. turnout).  But it did not do this.  Therefore, parliament did not and could not have consented in advance to a referendum in which any result would be treated as binding.

13.  The following is evidence of members of the electorate, of MPs, and even of a prominent Government employee, not voting in the referendum on 23 June in any clear belief that its result would be binding.

i.  House of Commons Briefing Paper 07212, cited under paragraph 3 above, was written by a Government employee: House of Commons Library Clerk, Elise Uberoi. This document was published on 3 June 2015.  Therefore, more than one whole year in advance of polling day, a key Government document concerning the referendum – arguably the second most important document after statute itself – was available in the public domain for all to view; and this is the document that stated that the Bill for the referendum “does not contain any requirement for the UK Government to implement the results of the referendum”.

ii.  On 25 June David Lammy MP stated on Twitter: “Wake up. We do not have to do this. We can stop this madness through a vote in Parliament. Our sovereign Parliament needs to vote now on whether we should exit the EU.  The referendum was an advisory, non-binding referendum. … Parliament now needs to decide whether we should go forward with Brexit, and there should be a vote in parliament next week”. Mr. Lammy could not have stated this on 25 June if he had not also believed this to be the case on or before 23 June.

iii.  After the referendum, as reported by The Guardian on 13 September, Kenneth Clarke MP wrote to his constituents that he believed the referendum to have been “advisory”, i.e. not binding.  Mr. Clarke could not have stated this at this time if he had not also believed it to be the case on or before 23 June.[3]

iv.  On 14 June, the journalist David Allen Green published a post on the blog of The Financial Times, entitled “Can the United Kingdom government legally disregard a vote for Brexit?”. Consistent with Commons Briefing paper 07212, Mr Green answered this question in the affirmative.[4]

v.  On 14 June and again on 21 June, the journalist Adam Payne reported and commented on Mr Green’s post in Business Insider Magazine.[5]

vi.  On 21 June Business Insider Magazine reported the same view as stated by Prof. Peter Catterall of the University of Westminster.[6]

vii.  On 6 June Business Insider Magazine cited a BBC report that pro-Remain MPs were “considering using their house majority to vote for Britain to stay in European single market, even if there is a Brexit”.[7]

viii.  On 6 June James Landale of the BBC reported that “Pro-Remain MPs are considering using their Commons majority to keep Britain inside the EU single market if there is a vote for Brexit”.  Mr Landale quoted Stephen Kinnock MP (Labour) and one unnamed Conservative MP.[8]

ix.  On 23 June, mid-way through polling day itself, Haroon Siddique published an article in The Guardian reporting that “the simple answer to the question as to whether the EU referendum is legally binding is ‘no’”.[9]

x.  It can be noted that readership of these media sources numbers in the 100s of thousands at a minimum. The BBC’s Audience Information document for April-June 2015 cites an Average Weekly Reach figure of 25.6 million viewers for all online content (p. 10).[10]  The Financial Times has a circulation of 720,000 across print and online content.[11]  The Guardian has a daily print and online readership of 2.24 million.[12]  Adding to these figures an approximate further calculation of the number of voters to whom these sources would have been communicated orally in conversation, it would not be unreasonable to assume that at least a million voters did not vote in any clear understanding that a Leave result in the referendum would necessarily be implemented by the Government.

Has a decision to leave already been made?

14.  The Government appears to advance three arguments for its claim that parliament should play no role in any decision to leave the EU. These are (i) that a decision has already been made, (ii) that notification under Article 50 is merely an administrative matter, not itself part of any decision-making process, and (iii) that the courts have no business in this matter.

15.  The following paragraphs deal with argument (i). Sections III and IV below address the two remaining arguments.

16.  The Government asserts that a decision to leave the EU has been made already (2). It expresses this assertion in the first sentence of its statement in paragraph 1: “On 23 June 2016, in the European Union Referendum, the electorate of the UK voted by a clear majority to leave the EU”.

17.  However, this opening sentence is incorrect. A majority of the UK electorate did not vote to leave the EU.  The correct definition of the keyword “electorate” is, as given in the Oxford English Dictionary: the total number of legally eligible voters.[13]  The “electorate” is not the total number of votes actually cast by eligible voters.  Therefore, the percentage of the electorate that voted to leave is not 51.9% but 37.4% (with 34.7% voting to Remain and 27.9% not turning out to vote).

18.  Self-evidently, 37.4% of the electorate is not a majority of the electorate. Still less it is a “clear majority of the electorate”.  Therefore, the opposite is the case: a minority of the electorate voted to leave (37.4%) and a majority of the electorate did not vote to leave (62.6%).

19.  Insofar as the Government’s assertion that a decision to leave has already been made refers to the result of the referendum, it is a false assertion. A decision to leave has not already been made because the result on which the decision is alleged to be based is not a majority but a minority.

20.  The Government’s misuse of the crucial term “electorate” in the opening sentence of its statement is deceptive. Perhaps it is even wilfully deceptive.

21.  Noteworthy is that 37.4% of the electorate amounts to just 27% of the population of the UK; from follows that 73% of the population of the UK did not vote to leave the EU.

22.  It would appear that the Government’s intention in its opening sentence is to refer to the proportion of votes actually cast by members of the electorate, namely 51.9%. However, this is not “a clear majority” but at best a marginal one.  The difference between 51.9% and 48.1% is in no way acceptably described as “clear”.  The pie-chart of the distribution of votes cast produced by the Electoral Commission, with votes for Leave and Remain coloured in dark and light shades of blue, makes in no way obvious at first glance that the proportions are anything other than roughly equal.[14]  The fractional difference is not immediately apparent to the eye – which suggests that a very natural and common-sense interpretation of the result would be that it is essentially a draw of the two sides.  Were the percentages to be rounded up to a single digit on both sides, this indeed would be the outcome – 5:5.

23.  Relative to the enormous constitutional import of the matter at issue, the fractional majority for Leave on votes cast is also further diminished in significance. Had the matter been of lesser import, not affecting the entire population of the UK for decades and generations to come but perhaps only one part of the population and for a more limited time period, the majority might have been considered acceptable.  But the matter is not of such lesser import.  Therefore 51.9% of mere votes cast cannot be considered acceptable for change of such propound and far-reaching nature.

24.  The Government equivocates over the agent it alleges to have provided a decision to leave. First it identifies it as the part of the electorate that voted to leave (despite this part not in fact being a majority but a minority) (5:2, 9).[15]  Then it identifies itself as the agent, acting under the authority of the Crown (12:6, 14).[16]  Then it raises (but then rejects) the possibility that parliament might be the agent (10).[17]   Then it identifies it grandiosely as “the United Kingdom” (15).[18]  Then in other places it identifies it as both itself and the result (12:2).[19]  And then it identifies it as itself by means of a tautology, disguised as a reference to the result (12:3).[20]  Equivocation and evasion of this kind severely weaken the coherence of the Government’s case.

25.  The unavoidable conclusion of above is that no genuine decision of the electorate of the UK has been made to leave the EU and therefore no true mandate for Brexit exists. 37.4% of the electorate is not a majority and therefore cannot constitute a “decision” if a “decision” is here defined as the result of the referendum.  Further, even supposing the Government’s misuse of the word electorate were disregarded and understood instead according to its likely intention as the proportion of votes cast for Leave, the inference that a decision to leave had been made would be at best highly debatable;  and even supposing a clear majority had been given, whether of the electorate as a whole or of votes cast, the conclusion would still not follow that a complete and definitive decision had been delivered because parliament has still not been involved in any determination of an alleged decision to leave at all, which is contrary to its entitlement – by reason of the merely advisory and non-binding basis of statute for the referendum.

26.  The Government’s statement of its view that parliament need not be involved in any matter at all concerning decision-making and implementation stands in contradiction to a report prepared by one of its own employees, namely Elise Uberoi, author of Briefing Paper 07212, posted on the House of Commons Library Blog, entitled “Brexit: The People v. Parliament”, published on 8 July. This post opens with the words: “An increasing number of voices suggest that Parliament needs to be involved in triggering Article 50, the first legal step towards the UK’s withdrawal from the EU”.[21]

III.  Is this matter a purely political one, beyond the domain of the law?

27.  The Government asserts that the “decision to withdraw is not justiciable”, i.e. is no business of the courts (5:3, 5:4, 12,5). It states that “the appropriate point at which to issue the notification under Article 50 is a matter or high, if not the highest, policy; a polycentric decision based upon a multitude of domestic and foreign policy and political concerns for which the expertise of Ministers and their officials are particularly well-suited and the Courts ill-suited” (15).

28.  However, the claimants’ case is not that the courts should be involved in any decision-making, only that parliament should be involved.

29.  If, as the Government says, the matter is of “the highest policy”, requiring “expertise” in “a multitude of domestic and foreign policy and political concerns”, this might well be thought to constitute all the more reason for parliament to be enabled to contribute its valuable expertise on the matter.

30.  The Government states that parliamentary involvement in legislation regarding the referendum (notably concerning the European Community Act of 1972) would be “constitutionally impermissible”. (5:4). It further states that notification under Article 50 must be “a matter for Government, rather than for parliament” and it asserts that this position follows “standard constitutional practice” (12:5).

31.  However, the Government provides no source for these assertions. Although it cites a number of case precedents later in the document, it supplies no reference to any constitutional source, statute, case or situation to corroborate its position at this point.  It holds itself authorized to define where the proper boundary between politics and the law resides – but precisely this is in question.

32.  The Government claims that the court, in recommending parliamentary involvement, would be “trespassing on proceedings in parliament” (5:4). Yet it is hard to understand how a court that merely recommends that parliamentary proceedings take place could be seen as “trespassing on proceedings in parliament”.

33.  The Government’s claim that parliamentary involvement would be “constitutionally impermissible” rests on a circular argument, equivalent to an ace card inadmissibly played twice in a game of cards. Since the constitution of the UK is unwritten or not textually codified and therefore supplies no general rules governing conduct of referendums, the applicable rules for a referendum have to be specified in the relevant individual piece of legislation.  This is a task for Parliament and this was the task carried out by Parliament in enactment of the Bill for the referendum in June 2015.  But if then happens that a dispute arises over conduct of a referendum, as with the present case, the matter cannot be referred back again to some alleged source in the constitution because the constitution’s very lack of a guiding source on the matter was the reason for the matter’s being handed to Parliament in the first place.  So the matter cannot be referred to the constitution again.  The Government here plays the same card twice in invoking the Constitution for a second time, after it has already been invoked once.

Is this matter a purely administrative one?

34.  The Government argues that the claimants’ case “conflates the process of notification with the decision to be notified”. It argues that the former must be distinguished from the latter and therefore that insofar as a decision to leave the EU has been given, all that remains now is simply an act of notification: a mere act of “procedural implementation of the decision to withdraw”.  Such a notification, it states, will be simply “an administrative step on the international law plane” that need not involve Parliament (2:5, 8:2, 9, 10).

35.  Leaving aside the false premise of these sentences – the presumption that a decision to leave has been made – the following problem arises with this reasoning.

36.  In theory, it might be acceptable to distinguish between the making of a decision and the subsequent act of notifying the decision to a relevant body. However, the question arises as to whether this theoretical distinction is sustainable in practice in the concrete and specific case at issue.  Two reasons suggest that it is not.

37.  Firstly, as demonstrated, no decision to leave the EU has been made: all that has been delivered is a mere 37.4% minority vote of the electorate to leave. At best, no complete decision to leave the EU has been made because all that has been delivered so far is a mere fractional majority of 51.9% of votes cast, with as yet with no deliberation of parliament on the matter.  But even supposing the result had expressed a genuinely clear majority (of votes cast or of all eligible voters), still such a result could not be taken to constitute a complete decision to leave because parliament has not been involved in any decision-making process, and precisely such involvement of parliament would have been required by this referendum inasmuch as this referendum was defined in statute as advisory rather than binding.  Therefore, in the case at hand, no valid distinction between an allegedly already complete decision and a mere remaining need to notify it can be sustained.

38.  Secondly, the claimants have brought their case for the reason that no formal meeting of parliament has as yet taken place involving deliberation on the result. Had such a meeting taken place at this stage, no case would have been necessary.  Therefore, it is not open to the Government to argue that the case must be dismissed on the grounds that the only remaining need is to issue an act of notification.

39.  The Government arrogates to itself a right to define where the proper boundaries of the dispute lie – but it does not possess this right because precisely the setting of these boundaries is in question. The Government accuses the claimants of illicitly conflating “the process of notifying with the decision to be notified”; but it is just as valid – arguably more valid – to charge the Government with illicitly distinguishing these elements from one another.

Will UK citizenship rights persist after commencement of a step to withdraw?

40.  The Government asserts that the mere commencement of a process of withdrawal would not remove EU rights of citizenship from UK nationals. It states that only an “actual withdrawal” would do so (5:5, 34, 37, 45).

41.  However, this claim is specious for the following reason. Article 50 contains no provision for any reversal of a process to withdraw once begun.  On the contrary, it makes clear that once begun, the process must continue for two years, after which an existing member of the Union ceases to be a member, whatever negotiations do or do not take place during this time and whatever their outcome.  The EU Council has given no confirmation that any cancellation of an initiated process to withdraw would be permissible and is highly unlikely to do so for the reason that the possibility of cancellation mid-way would be open to abuse by a purportedly departing member state as a lever by which to extract concessions from the Union with a view to then remaining on special terms.  It is therefore correct to conclude that a process of withdrawal, once commenced, would be irreversible and would need to be pursued to its point of completion.  Thus, no permissible distinction exists between any “commencement of a process of withdrawal” and an “actual withdrawal”; and therefore, if any withdrawal were to commence, EU citizenship rights would certainly be removed from UK nationals two years later.

42.  The Government further assets that no certainty exists over whether UK nationals would forfeit EU citizenship rights were the UK to leave. It states that “there is presently no way of knowing precisely which, if any, rights or obligations will be removed, varied, or added to by the process of withdrawing from the EU. … [T]he eventual outcome will be dependent upon the effect of the negotiations in which the Government will engage” (16).

43.  However, this assertion is false. Certainty exists on this matter.  The rules of EU membership are clear.  Citizens of a member state either hold EU rights of citizenship or, when a departing state reaches the end of the two-year process, they no longer hold them.  Neither Article 50 nor any other clause of EU law provide for negotiation of alternative outcomes.  EU citizenship rights are not held selectively: either they are held in their entirety or not at all.  The Government refers to negotiations arising from commencement of a step to withdraw but any such negotiations, were they to take place, would concern matters of a very different nature, bearing on trade after completion of a process of withdrawal.

44.  In any case, even if the Government were correct to hold that no certainty exists that UK nationals would forfeit EU citizenship rights after a step to withdraw, no certainty would exist that they would retain them either. Therefore it follows that no certainty would exist on the matter overall; and such a situation would be unacceptable on moral grounds.  The Government would have no moral right in general to subject UK citizens to uncertainty over retention of their own rights as citizens.  And least of all would it have a right to do so when its very case for leaving the polity conferring these rights is unfounded, namely that a decision to leave exists.

45.  Nor would the Government have a right to subject EU27 citizens resident in the UK to uncertainty over retention of their rights of residence, which would be the inevitable consequence of any step to withdraw followed by an attempt at negotiation over UK EU citizenship rights in the EU. This would be contrary to principles of humanitarian law.  Within states that observe them, citizenship rights are unconditional by reason of morality.  They cannot be tied to any principle of conditionality.  If the Government threatened to eject UK EU27 residents in the UK as a device with which to secure retention of UK EU citizenship rights in the EU, it would be acting immorally.  The security of some human lives cannot be traded for the security of other human lives.[22]

46.  Government behaviour since 24 June bodes ill in the above regards. Despite the UK remaining a full member of the EU, the Government has consistently behaved as if the country had already left.  Less than a month after the referendum, it announced that it would resign UK tenure of the rotating presidency of the European Council, set for the second half of 2017.[23]  No authority existed for this action, which has not only deprived UK citizens of an important cultural asset and honour of membership but has also falsely signalled to other member states that some definite decision of the country exists to leave, which is not the case.  Further, within days of the referendum, the Government began consistently to refuse to disburse matching funds necessary for release of regular EU development funds for deprived regions of the UK, including the North East, Cornwall and South Wales.[24]  Again, no authority exists for such action, which was and continues to be grossly contrary to the terms of UK membership of the EU and profoundly damaging to the regions affected.

47.  Is there a sustainable distinction between foreign affairs and domestic affairs relevant to this case?

48.  The Government argues that it can invoke the Royal Prerogative to trigger Article 50 because it did so when the UK joined the then EEC in 1973 and therefore can do so again to leave the EU. It claims that it need not involve parliament in this course because, it claims, such action would pertain to the “conduct of foreign affairs” which is “a reserved matter”.  It argues that “the Crown has repeatedly acted on the international plane” in matters of EU policy that then affect “our domestic legal system”.  The situation is therefore not one in which “parliament has ‘occupied the field’” (5:6, 8:3, 25, 37).

49.  However, the distinction the Government here draws between “foreign affairs on the international plane”, on the one hand, and “domestic affairs”, on the other, is unsustainable in the case at hand. In practice, the two sides of the matter are inseparable.  UK EU-membership is not a pure matter of foreign policy in anything like the same sense as UK diplomatic relations with other states regarding security, military affairs, international law or indeed treaty-making.  It is simultaneously thoroughly a matter of domestic affairs.  The free movement of people, capital, services and goods across nation-state boundaries entails not only international movement but also transnational movement.  That is, it entails not only movement from the governmental centre of one state to the governmental centre of another state but also movement from all sections of the economy, territory and population of one state to all sections of the economy, territory and population of another state.  This is the key feature of contemporary social life captured by the much-discussed term “globalization”.  Diverse states and societies are today knitted together in ways far too complex to permit any simple distinction between the “foreign” and the “domestic” relevant to this case.

50.  The symmetry the Government postulates between entering and leaving the EEC/EU is unsustainable for this reason and for several related reasons. Departure would not be symmetrical to entry because entry to the EEC was an act essentially supplemental to the status quo of the UK in 1973, whereas departure from the EU today would be deeply subtractive from the status quo of the country in 2016.  Entry was an addition; departure would be a subtraction.  The UK needed to surrender no significant part of its acquired state of affairs in 1973. Today, were it to leave, it would need to surrender an enormous part of its acquired state of affairs.  The country is the product of more than 40 years of transformations in the EU whose outcomes bear no comparison to the circumstances under which it joined the EEC.  The present in general is never directly comparable to the historical past for one simple reason of cumulative change over time.  Only with the non-historical and relatively immediate past is any symmetry in the present sustainable, such that it can be meaningful to say that a contract was signed at time t and should be honoured in like fashion at time t + 1.  The difference of these two cases lies in the difference of the validity of the appeal to ceteris paribus.  Only in the latter case is it valid to say: “other things being equal”.

Concluding remark

Throughout its statement, the Government uses language suggestive of contempt for parliament in affairs of our current polity. Although the phrases the Government uses will no doubt have technical legal meanings with which I am not familiar, their tone is disturbing.  It accuses the courts of “trespassing on proceedings in parliament”, despite the fact that all the courts appear quite modestly to be asking for is for proceedings in parliament to take place.  It makes believe that its own “polycentric” matters of “high policy” will be too complex for any assortment of experts to understand other than itself – although, apparently, the question of whether the nation should leave or remain in the EU was not a question too complex for the electorate to understand and to answer on the basis of a simple binary vote.  It speaks of “forbidden areas”, of “reserved matters”, and of tasks of “high policy reserved to the Crown”.  It pronounces the issue of the future rights of citizenship of UK nationals in the event of a decision to withdraw to be a matter “too abstract” for meaningful consideration in the courts.  Such, one would think, is the typical language of an authoritarian state of the past, bent on subsuming the competences of the legislature and the judiciary under its sole executive command – not of a progressive, pluralistic, democratic state of the twenty-first century.

 

Notes

[1] http://researchbriefings.files.parliament.uk/documents/CBP-7212/CBP-7212.pdf (p. 25).

[2] “To give guidance or suggestions, or state one’s opinion, to (a person, etc.) as to the best course of action; to counsel, make recommendations to; (also more generally) to give one’s assessment of something to (a person), usually as a basis for making a decision”. http://www.oed.com/view/Entry/3001?redirectedFrom=advise#eid

[3] https://www.theguardian.com/politics/2016/sep/13/ken-clarke-tory-constituent-brexit-eu-referendum-not-binding

[4] http://blogs.ft.com/david-allen-green/2016/06/14/can-the-united-kingdom-government-legally-disregard-a-vote-for-brexit/  Mr Green wrote: “The relevant legislation did not provide for the referendum result to have any formal trigger effect. The referendum is advisory rather than mandatory. The 2011 referendum on electoral reform did have an obligation on the government to legislate in the event of a “yes” vote (the vote was “no” so this did not matter). But no such provision was included in the EU referendum legislation”.  Mr Green also wrote that in the event of a result favouring leave: “it is a matter for a member state’s ‘own constitutional requirements’ as to how it decides to withdraw. The manner is not prescribed: so it can be a referendum, or a parliamentary vote, or some other means. In the UK, it would seem that some form of parliamentary approval would be required…”.  Further, he wrote: “And if there is a parliamentary vote before any Article 50 notification then there is the potential irony of those seeking to defend parliamentary sovereignty demanding that an extra-parliamentary referendum be treated as binding. But it must be right that the final decision is made by parliament, regardless of what the supposed defenders of parliamentary sovereignty say”.  Further: “A vote for Brexit will not be determinative of whether the UK will leave the EU. That potential outcome comes down to the political decisions which then follow before the Article 50 notification. The policy of the government (if not of all of its ministers) is to remain in the EU”.

[5] http://uk.businessinsider.com/green-eu-referendum-not-legally-binding-brexit-2016-6

[6] http://uk.businessinsider.com/eu-referendum-interview-peter-catterall-on-eu-brexit-2016-6

[7] http://uk.businessinsider.com/report-pro-remain-mps-will-use-majority-to-keep-britain-in-single-market-2016-6

[8] http://www.bbc.co.uk/news/uk-politics-eu-referendum-36457120

Mr Landale reported: “Ministers have told the BBC they expect pro-EU MPs to conduct what one called a ‘reverse Maastricht’ process – a reference to the long parliamentary campaign fought by Tory eurosceptic MPs in the 1990s against legislation deepening EU integration.  Like then as now, the Conservative government has a small working majority of just 17.  They say it would be legitimate for MPs to push for the UK to stay in the single market because the Leave campaign has refused to spell out what trading relationship it wants the UK to have with the EU in the future.  As such, a post-Brexit government could not claim it had a popular mandate for a particular model.  One minister said: ‘This is not fantasy. This is a huge probability’.  Labour frontbenchers say they have also been discussing the option.  One said it would be hard for pro-Brexit MPs to resist the Commons deciding Britain’s future relationship with the EU, as it would demonstrate the principle of parliamentary sovereignty Eurosceptics have been demanding for years.  Stephen Kinnock, the Labour MP for Aberavon, said: ‘If the British people voted to leave the EU that’s one thing.  But can we really say that they voted for the devastation and destruction of the entire exporting sector of our economy? I don’t think you can necessarily say that there’s a democratic mandate for that.’  Pro-EU MPs could use their voting muscle later this year when a post-Brexit Tory government would be expected to put its negotiating plans to parliament.  The government would struggle to negotiate with the EU if it could not secure the support of the Commons.”

[9] https://www.theguardian.com/politics/2016/jun/23/eu-referendum-legally-binding-brexit-lisbon-cameron-sovereign-parliament

[10]http://downloads.bbc.co.uk/aboutthebbc/insidethebbc/howwework/accountability/pdf/summary_audience_information_april_june_2015.pdf

[11] http://aboutus.ft.com/2015/02/27/financial-times-2014-results/#axzz4M7UqpRF3

[12] http://www.newsworks.org.uk/The-Guardian

[13] OED “electorate”: “All the people in a country or area who are entitled to vote in an election” https://en.oxforddictionaries.com/definition/electorate

Historical OED: “The whole body of electors”. http://www.oed.com/view/Entry/60244?redirectedFrom=electorate&

[14] http://www.electoralcommission.org.uk/find-information-by-subject/elections-and-referendums/past-elections-and-referendums/eu-referendum/electorate-and-count-information

[15] “The UK’s decision to leave the EU as articulated in the referendum result” (5:2, 9).

[16] “The executive’s power to decide to withdraw” (12,6); “the decision to withdraw is a matter of high policy reserved to the Crown” (14).

[17] “It is open to lead claimant to contend that …that the Government cannot validly decide that the UK should leave the EU …without the processes of an act of parliament” (10).

[18] “The UK’s decision to withdraw” (15).

[19] The Government is “at least entitled to decide that the UK should withdraw from the EU in accordance with the outcome of the referendum and to give effect to that decision” (12,2).

[20] “Having validly decided that the UK should withdraw from the EU, the Government will give effect to that decision” (12:3).

[21] https://commonslibraryblog.com/2016/07/08/brexit-the-people-vs-parliament/

[22] Cf. John Rawls, A Theory of Justice, Oxford University Press, 1970, p. 4: “Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.  For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others.  It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by the many.  Therefore in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests”.

[23] http://www.independent.co.uk/news/uk/politics/uk-gives-up-presidency-of-eu-council-to-focus-on-brexit-negotiations-a7145801.html

[24] http://www.independent.co.uk/news/uk/politics/european-regional-development-fund-erdf-suspends-treasury-brexit-eu-referendum-a7154526.html

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