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from the we've-always-been-at-war-with-eurasia dept.
The UK Supreme Court has ruled that Parliament must vote on and approve of invoking Article 50 which triggers arrangements for leaving the European Union:
The Supreme Court has dismissed the government's appeal in a landmark case about Brexit, meaning Parliament will be required to give its approval before official talks on leaving the EU can begin. The ruling is a significant, although not totally unexpected, setback for Theresa May.
[...] The highest court in England and Wales has dismissed the government's argument that it has the power to begin official Brexit negotiations with the rest of the EU without Parliament's prior agreement. By a margin of eight to three, the 11 justices upheld November's High Court ruling which stated that it would be unlawful for the government to rely on executive powers known as the royal prerogative to implement the outcome of last year's referendum.
Also at NYT, WSJ, and The Guardian.
Previously: Brexit Court Defeat for UK Government
(Score: 5, Informative) by kazzie on Wednesday January 25 2017, @06:45PM
Oh, the votes matter. It's the question that was asked (and the consequent steps specified in the Referendum bill) that are the issue.
The question asked was "Should the United Kingdom remain a member of the European Union?", with valid responses of "Remain" or "Leave". The "Remain" outcome was a clear path of maintaining the status quo (plus the renegociated terms), but there are several options that could be described as "Leave" (Stay in the EEA, stay in the Customs Union, leave them all?) None was specified at the time, and various "Leave" campaigners advocated differing outcomes. So which "Leave" option won?
The European Union Referendum Act 2015 gives details of how the referendum should be run, and about the pre-referendum re-negociation, but made no mention of what should be done afterwards. (Some have suggested that this is because David Cameron found a "Leave" vote inconcievable.) The fact that Parliament hadn't decided a course of action beforehand is half the reason we're in this legal and procedural mess.
British sovereignty is vested in Parliament, which selects a Prime Minister and government from amongst its own members. That sovereignty is handed back to the people when parliament is dissolved, and then with an election it is passed back to the newly elected members. (Bagheot's The English Constitution [wikipedia.org], while written in the Victorian era, is a good primer on the mechanics of power at Westminster.) The referendum is a very, very new invention in British politics, and is only used by parliament to ask the advice of the public. Parliament then goes at it to interpret the result and enact what it decides should be done.
The first ever UK Referendum, in 1975, was held as a result of a campaign promise of a party that hadn't expected to be in power. The party and its leadership was split over membership of the EEC (early EU), and couldn't agree on a policy to put in their manifesto, so they agreed to hold a consultative referendum. The Prime Minister was confident that he could persuade the public to back his proposal, with help from the opposition, and thus silence dissenters in his party. That was Harlod Wilson at the time, but I could easily have been describing David Cameron.
Since then, the referendum has been used as a blunt mechanism to get the public to settle issues so that politicians don't have to (Welsh/Scottish devolution in 1979 and 1997, UK electroral system reform in 2011). Often a proposed change has been turned down, but this is the first time that Parliament has been advised by a referendum to do something that it does not wish to do.
(Score: 4, Informative) by kazzie on Wednesday January 25 2017, @06:48PM
Forgot two references!
Referendum act: http://www.legislation.gov.uk/ukpga/2015/36/enacted [legislation.gov.uk]
Comparison with 1975 referendum: http://www.bbc.co.uk/news/uk-politics-15390884 [bbc.co.uk]
(Score: 0) by Anonymous Coward on Wednesday January 25 2017, @06:53PM
Great post, thank you. Does everything you say also apply to issues with the other UK countries, like the failed Scottish vote to leave the UK? If they did vote to leave (or if Ireland makes good on their threat to hold a similar vote), what would happen there?
(Score: 3, Interesting) by kazzie on Wednesday January 25 2017, @08:39PM
Working from memory here:
With reference to the 2014 Scottish Independence referendum (and working from memory) one key issue was the fact that the Scottish Parliament wanted to hold the referendum, but the Scottish Parliament, which is subservient to the British Parliament, didn't have the power to hold a referendum of its own accord. Technically, because Westminster established the Scottish Parliament at Holyrood, it could override it or dissolve it at any time it wishes. It is only convention (the Sewell convention) that holds it back from doing this. In the same way, the Scottish Parliament cannot force the UK Parliament to do something.
Prior to the referendum, the Scottish and British governments came to an agreement, and a bill was passed at Westminster giving the Scottish Parliament temporary power to hold a referendum. A vote for independence would still be strictly advisory, and not legally force Westminster to grant Scotland independence. It was regarded that the UK government would be "honour bound" to enter into negotiations with the Scottish government over the dissolution of the union, and David Cameron's statements at the time supported this intention.
By comparison with the EU vote, while many MPs supported remaining in the EU, they largely accept that they must now proceed to leave (either out of respect for the referendum result, or out of fear of being thrown our by the electorate at the next election). When Alex Salmond went into the 2014 Scottish referendum with a reasonably clear set of objectives in the event of a "leave" result: keep the Pound, retain membership of the EU, stay in the borderless Common Travel Area with the UK and Ireland. There was no such clarity with the EU referendum.
For Northern Ireland, the UK Supreme Court have determined that there is no legal need for Northern Ireland to consent independently to leaving the EU. The fact that the NI Assembly has just been dissolved and forced into new elections is a more urgent issue there, as there is burrently no leadersip to represent NI's views and priorities.
The only referendum on the horizon in Wales is on the issue of devolving tax varying powers to the Welsh Assembly (soon to be renamed Welsh Government), and Welsh politicians disagree on whether such approval in needed. Scotland was asked this question at the same time as their 1997 referendum on devolution, whereas Wales wasn't asked at the time. It was thought devolution was a tough enough sale as it was. (For an overview on how close that result was, see this BBC retrospective [bbc.co.uk] published a decade later.)
(Score: 2) by AthanasiusKircher on Wednesday January 25 2017, @07:38PM
The referendum is a very, very new invention in British politics, and is only used by parliament to ask the advice of the public.
That was the traditional role of plebiscites in most representative democracies. Even in U.S. states where they can sometimes be initiated by the people (rather than the legislature), in many states there needs to be legislative approval before or after the popular vote.
Since then, the referendum has been used as a blunt mechanism to get the public to settle issues so that politicians don't have to
Yes, historically in many countries, there have been two primary uses for popular referenda: (1) to settle matters that politicians don't want to for popularity reasons, and (2) to confirm things that are already basically known to be true (the latter is more common in dictatorships and fascist regimes). While the use for actual legislation initiated [wikipedia.org] by a people's petition has grown in a minority of U.S. states, such initiatives are quite uncommon in the rest of the world... and in almost all cases where they do exist, they require approval from the country's legislature to be enacted.
(Score: 2) by kazzie on Wednesday January 25 2017, @08:43PM
Thank you for the overview. I suppose that's where the idea came from when Britain held it's first referendum in the 70s.
The only inherently referendum-based political system I'm familiar with is Ireland's, where changes to the country's constitution can only be made by public referendum.