In the UK, Parliament is the ultimate authority. All power is held by it. While technically, sovereignty resides with the monarch, in the UK this is ceded to and implemented by a group of elected representatives called Members of Parliament.
The UK is NOT a plebiscitary democracy; it is a representational one. Elected Members of Parliament make decisions on behalf of the electors they represent.
The enabling legislation for the EU referendum last week is the European Union Referendum Act 2015.
This makes no provision whatsoever for the implementation or otherwise of the result of the ballot. This in turn means that the referendum vote has absolutely no authority over Parliament. It is not even ‘advisory’, in any legal sense. It is nothing more than a high-falutin opinion poll.
An opinion poll.
There is not one word in the above Act that obliges Parliament to do anything other than publicise the result. It contains no mandate at all. It’s an opinion poll and nothing more.
It is often said that ‘Britain’ has no written Constitution; this is a flat untruth. It may not have one in the USican sense, of a single document, but it still has a written Constitution, spread over many documents.
The most important of these, and the foundation of the British Constitution itself are the Articles of Union of 1707, which brought the United Kingdom of Great Britain into existence. Please read the linked document; it is not very long.
This confirms that the Parliament of Great Britain holds sovereignty, and thus, given that the enabling legislation contains no mandate, the referendum held last week has no legal standing at all.
Only Parliament can decide to leave the EU. It is not obliged to heed the referendum; only to make its result public.
While a Prime Minister might trigger Article 50 of the 2009 Treaty of Lisbon, which would begin the UK’s secession process, that Prime Minister must have the approval of a majority of Members of Parliament.
Read that again: Parliament as a whole must approve even the action of triggering Article 50. While doing so would not require its prior approval per se, Parliament can easily force a confidence debate over the issue. The relevant Prime Minister has to be certain that he or she could win that before pressing the red button.
Should said PM not win, then there is a good chance that a General Election might be called, under the provisions of the 2011 Five-year Parliament Act.
No Parliament is bound by the acts of any previous, so any new one elected as a result of such a process could simply rescind the whole affair and it would be kissy-kissy make up time. Our European chums would probably suggest we laid off the booze a little.
Meanwhile, with any luck, Messrs Farage, Johnson and Gove will hang themselves from Tower Bridge.
Guess what? It gets even worse.
The UK passed an act in 1973 generally called the Treaty of Accession. This Act is what makes the UK a constituent part of the EU. Parliament has to debate, and then vote on, a Bill that would repeal that legislation, because in the UK, Acts of Parliament may only be repealed by new Acts of Parliament.
So let’s see what we have here. 47 SNP MPs can be relied on to vote against any such measure. The Labour cohort would unquestionably be whipped into voting against it. The Liberals will vote against it.
That’s not enough to scupper it, but the Tories are split. It is conceivable that an incoming Eurosceptic leader, for example BoJo, might try to whip the Tory MPs into line, but that is most unlikely to work. While the swivelly-eyed Right of the Tory Party loathes Europe, as many Tories are convinced Europhiles. And any MP whose constituency voted ‘Remain’ is perfectly within his or her rights to refuse to vote for a Bill allowing the UK to secede; indeed we might argue that he or she would be morally obliged to.
Which means that we may be somewhat sceptical, to say the least, of the chances of such measures getting through Parliament. And if it’s a free vote? Well then the numbers say it fails. Simple as that.
So let’s be clear. Last week’s vote is a chimera. It’s a phantasm. It has no worth whatsoever.
The Brexit result has about as much chance of getting made into legislation as there is of Dr Who going back in time and slipping the Icelandic kickball team a Mickey Finn.
Yet its presence, like Banquo’s ghost at Macbeth’s board, has triggered worldwide panic. The biggest financial collapse for half a century and still deepening. At the same time, two — not one but two — major political parties in the UK have thrown themselves on their collective swords.
While Cameron’s departure was predictable, he had said he would not go; and he has — doubtless after a quick call to the Attorney General — left the whole Constitutional can of worms to somebody else. And in the election of that somebody, the division over Europe threatens to rip the Tory Party apart.
Meanwhile, Labour, or at least the Parliamentary Labour Party, is behaving like a tribe of spoiled brats in an unattended sweetie shop. The PLP has arranged a bungled palace coup at the very time when Her Majesty’s Opposition should be shouting ‘Hold the phone! Did anybody actually read the law?’
Dignity and Decorum?
Do these people not understand that politicians are meant at least to pretend to have some dignity and decorum? That we don’t pay their inflated salaries just so they can throw a bad hair day exactly when they’re supposed to be working?
And while we’re at it, I think we might reasonably expect highly-paid public servants to have read and be familiar with legislation that they themselves passed only last year. I mean just how much champagne do you lot get through?
There is a very real chance that both the UK’s largest political parties will self-destruct over the next few months leaving only one, the SNP, with any credibility whatsoever. (We do not consider the Liberal slimy-say-anything party to be a serious institution.)
And meantime most of the half-arsed nyaffs of the Fourth Estate didn’t even notice the glaringly obvious problem. British Constitution was a compulsory module in the National Council for the Training of Journalists’ theoretical course. Were you all bunking off to play snooker?
At a time when the people have a right to expect the Press to do its job and explain what the hell is actually going on, why is it left to humble wee bloggers like me to point out the simple fact that the Great Big Bad Referendum has NO LEGAL FORCE AT ALL?
Brexit is just a wee mouse.
All that panic and brouhaha for a ghost. A tiny wee mouse in the corner scratching at the wainscoting.
By the time all of this comes before Parliament, things will have settled. The pound will have recovered somewhat. But the memory of this week will still be strong and painful. How many people really think, having seen what a wee mouse can do, that Parliament is going to do it all over again, with live bullets, in a year or two years’ time?
No, I don’t think so either. A great deal of fuss about nothing.
Also published on Medium.