IT'S NOT DEMOCRACY
How the EU referendum was hijacked - and Article 50 has not been triggered
The Cameron government hijacked the EU Referendum and converted it into a political agenda to suit their own internal party politics. They succeeded in fooling the public and even the other parties into believing that their political agenda was inherent in the referendum Act, and that the result had to be "implemented".
There has never been a constitutional decision that the UK shall leave the EU. The Article 50 Notification served on 29 March is invalid.
This explains why:
An exit of the UK from the EU and its subsequent consequences may go down in history as the most momentous change of constitutional status in Britain in living memory. It may surprise you to know that it would be carried out without any democratic mandate or legal basis whatsoever.
Tory, Labour and LibDems all hold the same position: "The result of the EU referendum was the democratic will of the people and must be respected." As is often heard: "It's democracy!". Any challenge is undemocratic.
Is it democracy?
Let's start with these basics. The UK has an elected Parliament. This is the foundation of our democracy. We accept that Parliament is the supreme legislative authority. Governments cannot override the supremacy of Parliament. They are not permitted to bend either the laws or the clear intent of Parliament to suit their own agenda.
Who would dispute that? Yet this fundamental principle has been overridden; and this abuse has been accepted without question. Both the public and Parliament itself have been deceived and fooled.
How?
In 2015 Parliament passed the EU Referendum Act. The Act was quite simple; it authorized an advisory referendum with two simple alternatives: Remain in the EU or Leave the EU.
The advisory status was confirmed beyond doubt to MP's when the Referendum Bill was presented in June 2015. The Minister for Europe David Lidington said: "The legislation is about holding a vote; it makes no provision for what follows. The referendum is advisory, as was the case for both the 1975 referendum on Europe and the Scottish independence vote last year. In neither of those cases was there a threshold for the interpretation of the result."
In case some MPs had not been paying sufficient attention, further confirmation of the advisory status was given to them in the House of Commons Briefing Paper of June 2015: "This Bill requires a referendum on the question of the UK's continued membership of the European Union. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set any 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 fact that the status was advisory had two crucially important implications:
Firstly: There was no debate about the setting of a majority or supermajority vote threshold, whether 50%, 60% or even 66%, which would have been an essential legal requirement to include in the legislation for a binding vote.
Being advisory, there was no need to even discuss this issue. It was not a vote, it was a consultation. Nowhere, neither before or afterwards, has Parliament determined 50% as a threshold. That is a fiction created since by the Cameron government.
Secondly: The actual choice offered of "Leave the EU" was astoundingly simplistic.
"Remain" needed little amplification. It was the status quo. "Leave the EU" can have very many different meanings, as has become clear since June 2016.
Clearly, Parliament made no attempt to clarify the intent or meaning because there was no need to. The referendum was advisory. It was not a vote, it was a consultation of public opinion. The result was to be considered, but Parliament would still have the right and the duty to consider the national interest and take such decision as it thought fit.
Parliament passed the Referendum Act on that clear legal basis. The Conservative party's position, as set out in their 2015 manifesto, was that they would 'respect the outcome'. Quite right, all MPs should "respect" the outcome.
But what happened ?
David Cameron created the Great Pretence that the referendum was binding, and deliberately concealed its advisory status in all public information. It is suspected that MPs were instructed to be complicit in this concealment.
Cameron's legal duty, and May's, was to present the result of the referendum to Parliament for due debate and consideration, and it should then have been subject to a free vote, allowing MPs to put the nation's interest above party politics.
But in early 2016 the Government announced that they will not just "respect the outcome", but will "implement the result". This created a wholly new context. The precise meaning of the very simple and loose consultative question "Do you want to Leave the EU?" now became very important, since it had to be "implemented".
"Leave the EU" was acceptable as a gauge of public opinion, but it was clearly not acceptable as a ballot paper option for a binding vote to "implement" specific action. Leave the EU - regardless of the consequences? Leave the EU - once you have established acceptable alternatives? Leave the EU - at some point in the future if it doesn't reform itself to our satisfaction...? Leave the EU and stay in the single market, leave and stay in the customs union, leave and limit free movement or allow free movement, leave and adopt a Norway model, make a total break and go off the cliff into WTO trading.... There are 101 variations. "Leave the EU" was virtually meaningless.
Cameron added the fiction that the vote would turn decisively on a 50% threshold. Parliament has never set that threshold. A petition signed by over 4 million demanded in fact that in order to be decisive the vote should require at least a 60% threshold.
The Great Pretence succeeded in fooling the public into believing that the referendum was a binding vote turning on a 50% threshold.
Ironically, shortly before the June 23 vote, Nigel Farage MEP said: "If it's a 52-48 result it's unfinished business". Clearly he intended to challenge a 52% Remain/48% Leave result. How? Presumably by making the very same case as outlined here.
Even Farage has now admitted that the referendum was advisory. On the Andrew Marr Show on 6th November 2016 he turned and said to Gina Miller: "I take the advisory point, and I would now wish to see constitutional change to make referendums binding."
Well, you can hardly get a better endorsement than that. The referendum was advisory, not a binding vote
The Pretence that the referendum was the democratic and mandatory "will of the people" has been repeated so extensively that it has become accepted as conventional wisdom, and is largely unchallenged. Parliament itself determined that the referendum was no more than a consultation. That remains the case to this day.
So the referendum was advisory, and it was hijacked.
What about the Article 50 Notice?
This may come as another surprise to the reader: the Article 50 Notification served by Theresa May on 29th March is not worth the paper it's written on.
Here is the problem: The famous Article 50 is very clearly written.
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.
So first you make the decision to withdraw, then you must notify your decision. Clear enough. But now ask the question: When, where and by whom was a decision made?
Ministers and Lords have told Parliament, and May wrote in her famous letter, that the "decision" was made by "the people" on 23rd June 2016.
Was it?
Last January the Supreme Court ruled in the Gina Miller case that only Parliament may remove rights which Parliament has granted in the first place. No Minister can do it. Even a Prime Minister wearing an imaginary crown of "Royal Prerogative" can't do it. Only Parliament may do it, and then only through an Act of Parliament.
And perhaps most importantly, even the "People" can't do it.
How can Mrs May claim that "the People" made a decision which removes the rights of their fellow citizens? This would be illegal.
"But - there was a decision - there was a vote - 52% voted to Leave".... Yes there was a vote, and 37% of the electorate did choose the Leave option, but that was not a binding vote. Cameron created the Pretence that it was binding so that when the anticipated vote for remain was announced, he could say " well that's it", the eurosceptics have had their chance, end of story. As we know the Pretence backfired. Goodbye Cameron and Hello May, who continued the pretence.
The government's official position is that the referendum was the decision. David Davis told the Commons; Lord Bridges told the Lords; Theresa May told President Tusk; the referendum result itself was the decision required by Article 50(1).
The referendum result itself cannot be the "decision".
1.It was not binding.
2.There was no set threshold.
3.The Supreme Court has confirmed that only Parliament can make such a decision, and by means of an Act of Parliament.
When did Parliament make such a decision? The answer is - never. Parliament has never been asked to make a decision. It has passed no such Act.
So the government has to claim that "the referendum result was the decision".
The government is either badly advised by its legal experts, or is deliberately misleading the public and the EU.
Is this the 'legal problem' that William Cash was about to raise in the Commons when May shut him up? This is the exchange that took place on 14th March 2017:
Sir William Cash (Stone) (Con):
"I congratulate my right hon. Friend not only on her statement and the way in which she dispatched the Leader of the Opposition, but on the passage of the European Union (Notification of Withdrawal) Bill. Does she accept that now is the time for the UK to do all the things that she has recommended in her statement and, in addition to that, to take urgent legal advice in respect of the legal warnings that have been given by Lord Hope of Craighead to be sure that we do not have any unforeseen further attempts to undo that Bill in the courts?"
The Prime Minister:
"I can assure my hon. Friend that, as we move ahead with this, as we have at every stage, we will take appropriate legal advice, but as he will know we do not discuss that on the Floor of the House."
In other words - Shut up you idiot!
So - why the omission to mention 50(1) in the Bill or elsewhere? Pure incompetence? Or some more sinister intention?
What could the sinister intent be? Leaving an emergency exit open - to be able to say at some time down the line - "oh sorry President Tusk, the Notice was invalid, so you can't boot us out of the EU after all"?
Is May that cunning? Hard to believe. So perhaps it is pure incompetence. It's an open question. Are the autocratic Empress Theresa and her band of hapless Brexiteers so out of touch with reality and the results of their bungling that they simply refuse to confront reality? Or is there still a dark reason, known only to the few?
Conclusion
Democracy in Britain is based upon the firm principle that the elected Members of Parliament make the law. Parliament in its wisdom passed the 2015 EU Referendum Act with the clear intent that it should be advisory, and that its result should then be considered by Parliament. Whatever was put in the Conservative manifesto of 2015 has no bearing upon the legal status of the Act.
The Cameron government hijacked the Act and converted it into a political agenda to suit their own internal party politics. They succeeded in fooling the public and even the other parties into believing that their political agenda was inherent in the Act, and that the result had to be "implemented".
There has never been a constitutional decision stating that the UK shall leave the EU. The Article 50 Notification served on 29 March is invalid.
This scandal has never been challenged by the other parties. They seem to be terrified of being labelled 'undemocratic". Yet the hijacking of the Act is the most undemocratic event in living memory. It is not democracy. Democracy will only be served by allowing Parliament to freely debate, consider and vote upon what action should be taken in the national interest as a result of the advisory referendum of 23 June 2016. To date, Parliament has not been permitted to do that. It must be permitted to do so, and in a free vote.
If that is not done, an exit of the UK from the EU and its subsequent consequences may be carried out without any democratic mandate or legal basis whatsoever.
History may not treat that fiasco kindly.
REFERENCES