UK in/out referendum on the EU (Brexit vs Bremain)

Pettytyrant101 wrote:And if you have a partnership of 5 nations, and 3 of them don't want to do a thing- then if the other 2 are going to enforce it on the other 3 then they have to work with the other 3, respect their choices too and make compromises- that's supposed to be how a Union of equal partners works- not dictation by one member.

Am I missing some obvious historical precedent here? Because AFAIK that's never been how the UK constitution has worked. The UK has always been a unitary state with supreme power vested in Parliament, which is elected by the voters of the entire UK as one, not each constituent country picking its representatives separately. The modern devolved governments have been around for less than 20 years and in constitutional terms their power still derives from the Westminster Parliament which created them and can modify the terms under which they operate (see: Scotland Acts 1998, 2012, and 2016). And those powers do not include setting foreign policy; even in fully federal states that remains the prerogative of the central government.

The exact nature of the constituent countries of the UK and their relationship to the central government defies easy comparison with any other country's political system, and Scotland in particular certainly retained a good deal of autonomy even before devolution. (Wales, on the other hand, not so much.) But when it comes to matters that are reserved for Westminster, it's the UK-wide majority (whether it's MPs voting in Parliament or the people voting in a referendum) that matters, and in that respect the UK is similar to most federal systems.

{{{Gibraltar's not even part of the UK proper so there's a separate raft of issues there.}}}

those powers do not include setting foreign policy; even in fully federal states that remains the prerogative of the central government.- Eldo

{{This is where the Sewel Convention is supposed to come into play- only the Court basically said it doesn't cause it just words not legally binding, thus undermining the whole thing and one of the main supposed tenants of the devolution settlement.

The Convention is supposed to give a say to the devolved governments to any Westminster legislation which is a reserved matter (such as foreign policy), but whose effect will have significant impact on the domestic policy or governments of the devolved nations.

'consent is also required for legislation on reserved matters if it would alter the powers of the devolved parliaments and ministers.'
'sub-section of the Scotland Act 2016 clearly stated: "It is recognised that the parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament."- bbc

Now if this doesn't count as qualifying I have no idea what would- almost every aspect of our domestic politics is affected here- from economic to social.
In theory this is exactly the sort of situation in which the Convention should come into play- only its not because I mentioned the Court says its not legally binding. Or in more common terms- it isn't worth the paper its written on. At least I think that's what they said!

Blue! Some interpretive expertise- can you turn this into plain speaking please?!

'The judges said in their deliberations: "In reaching this conclusion we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution.
"The Sewel Convention has an important role in facilitating harmonious relationships between the UK parliament and the devolved legislatures.
"But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law."  }}}

IANAL but I'm not sure what basis the court could have given to force the UK government to do anything. There's the issue of parliamentary supremacy and the unwritten constitution, but beyond that Sewel Convention does not appear to have ever stated anything in unequivocal terms, but rather includes language like "not normally" (ie, there can be exceptions):

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/316157/MoU_between_the_UK_and_the_Devolved_Administrations.pdf

14. The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. It is ultimately for Parliament to decide what use to make of that power. However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government.

And has already been described as non-binding well before the current case (Ibid.):

Explanatory Note

This paper, superseding Command Paper Cm5240 published in December 2001, comprises a series of agreements between the UK Government and the devolved administrations in Scotland, Wales and Northern Ireland setting out the principles which underlie relations between them. It is not intended that these agreements should be legally binding.

{{But there is precedent- up till this Westminster had largely stuck to the Convention- there are 42 pieces of legislation that have been altered in some way because of the Convention. Up till now Westminster has honoured the spirit and word of it where legislation has touched on the devolved settlements, regardless of it being legally binding on them.
I think what it does importantly demonstrate in a simple fashion to people is that Westminster can when it wants simple alter or change fundamentally the devolved settlement or Parliaments- though that always been true its largely been a theoretical in practice. Now its not and its plain for folk to see.

As the judges said - '"The Sewel Convention has an important role in facilitating harmonious relationships between the UK parliament and the devolved legislatures."

This rather sours the harmony! The importance of that should not be underestimated.}}}

Well ... yeah. The UK Parliament could unilaterally repeal the Scotland Act(s) if they wanted to and there wouldn't be any constitutional remedy. That's how parliamentary supremacy works.

{{{Now, if you had a written constitution that established a federal system there'd be a lot more protections in place for the devolved governments, but I know how you feel about that. }}}

EDIT: though to be clear there are a myriad of political reasons why I don't think the Scotland Act is in danger.

{{{ The way to think of it from a UK mindset is royalty- technically the Queen could let ever prisoners in the land out tomorrow if she wanted- they are Her prisons, and her prisoners who serve at Her Majesty's Pleasure (an odd phrase really)- but we assume she wont, even though technically she could.
Bit like that- we know Westminster can just change our government and there is nothing we can do about- we just didn't expect them to actually do it because like letting all the prisoners out it would be very, very stupid! }}}

I'd have thought 11 years of Thatcher, not to mention Blair leading the country into an illegal war in the face of massive public opposition, would have made you more cynical about politicians.

{{{Which is not to say that American politicians are any better -- they aren't -- but our system tries to limit how much harm they can do. Shame about it having been chipped away at for so long with eg executive orders.}}}

America has waged plenty of illegal wa....um...police actions.

{{As you point out Eldo we don't have a written constitution which means the system tends to run on convention instead and precedent- the Queen doesn't have to read out the governments program every year if she really, really disagrees with it, but the convention is she will anyway even if she does disagree with it.
A lot of it works like this rather than the legal based system of the US. One of the reaosn there was an outcry over this Brexit case going to court at all is that the courts tend not to try to get involved in politics where possible. Its seen as a challenge to the authority of the Commons and therefore the people.

In this case the convention for dealing with such reserved matters that cross into devolved territory is Sewel. And people did expect Westminster to adhere to it because convention is how things work, and it had till now. Breaking the convention is a serious matter in terms of how it is viewed- its a sign and marker. The game is changed- not in theory but in practise. }}

halfwise wrote:America has waged plenty of illegal wa....um...police actions.

I know, which is one of the reasons why I don't say things like "I didn't expect the government to do that because it was so stupid".

Fair points, Petty, but I think you describe the exact reason why the courts weren't able to get involved.

The Westminster system puts a great deal of importance on the will of the people as expressed through voting (traditionally focusing on the manifestos of winning parties), even when that conflicts with previous constitutional arrangements. Look at the development of the Salisbury Convention in the 1940s, where the House of Lords voluntarily curtailed its authority even more than it had been under the Parliament Act 1911. I think the problem here is that we have two simultaneously evolving trends within the British constitution -- referendums and devolution -- that have now come into conflict. Devolution has led increasing numbers of people to envision the UK as a quasi-federal state, but has been a very cautious and gradual process, which I think has been beneficial for the overall stability of the UK. But referendums lend hitherto unseen democratic legitimacy to (relatively) radical policies that no mainstream party supports. So now we find the May Ministry in the unenviable position of having to decide which trend to further and which to curtail. As opponents of Brexit have been fond of pointing out, the referendum result does not mean that the government (or parliament) must take Britain out of the EU, but the same constitutional mechanisms underlying that reality also mean that the government does not have to stay on exactly the same path with regards to devolution. Given where May's electoral majority comes from, I don't think it's any surprise that she's putting Brexit over cooperation with the devolved governments. It would be politically suicidal not to.

Agree with the whole courts thing. The commons should be answerable to the people, not the courts.

Also agree with your general analysis on the UK Eldo. For matters of this type, Westminster has the say. If that is not the case then I am not sure what the whole point in the Scottish referendum was as it seems Holywood could just do what it wanted anyway.

And this is why the whole IndyRef2 thing coming up at least once a week gets on my nerves. It may be the media that asks but only because Sturgeons reply is always 'wouldn't rule it out.'

Do we need a vote every 5 years? Maybe every 3? I am sure there must be some kind of foreign policy decision that someone it Scotland doesn't agree with a least once a year... so does that trigger it?

Agree with the whole courts thing. The commons should be answerable to the people, not the courts.- Lance

{{Only in this case if the Courts had not intervened the Government would not have gone to the Commons at all so would not be answering to the people. }}}

'If that is not the case then I am not sure what the whole point in the Scottish referendum was as it seems Holywood could just do what it wanted anyway.'

{{One could counter whats the point of the Sewel Convention if Westminster can just ignore it when they want and impose things on the devolved admins?
And Holyrood has never been able to do what ever it wants - we are very limited still in fact by what matters are devolved and what matters are reserved- and where we have been given some powers- tax law, benefit law, its deliberately limited to tinkering round the edges. But the understanding until now is that if it was a reserved matter but effects devolved admin then Sewel came into play.}}

'Do we need a vote every 5 years? Maybe every 3? I am sure there must be some kind of foreign policy decision that someone it Scotland doesn't agree with a least once a year.'

{{{No and people here would not support it if they tried. But a massive change in, well everything? Yeah I'd say that was major enough to warrant the threat of it if we arent listened too.

In my entire life there have been 4 referendums (and the first one was rigged and I was a child at the time so didn't get to vote) 2 on devolution, 1 on independence 1 on EU membership. It would take something equally significant to happen again after this to trigger the threat of another in my view. }}

I am hoping Petty that we are at the bottom of a downward trend of populism. If people actually started working for the common good then we would all be in a much better position.

That is why I voted to stay in the EU and am disappointed with repeated calls for independence all over the place. At the same time, it is obvious that the way politics works right now does give rise to these things as people are always left out. The rich keep getting richer and the poor get fucked in places they really don't want to be fucked in.

I am sure more liberal values will start taking hold again in the next 5-10 years but which time those on the extreme left that tend to cause far right backlash will have been reigned in a little.

{{{ At this point in time I see a federal UK as making the most sense if we want to keep a Union of any sort.
The current way of doing things is obviously not going to work long term. It doesn't work for the devolved nations and it doesn't work for England who don't have representation of their own.

The odd thing is I didn't come to independence as a populist movement, I don't think it was about that for most folk I knew- it was about not having a voice and about England seemingly voting ever further right whilst we went centre left repeatedly, causing a direct clash in social views as well as political ones. Further compounded by almost every major election in our lifetimes being decided by majority English votes giving the sense of a worthless vote and a hollow voice that will just be drowned out every time by our larger neighbour.
Nationalism and populism were fringe elements in my experience of the referendum.

I actually grew up a Unionist, raised in a family like many in the west of Scotland- to hate catholics and the Pope and Celtic football club, to support and honour the Monarchy (we had to stand for the national anthem whenevr it played, at xmas for the Queens speech) and celebrate King Billy of Orange. I grew up in a protestant, Unionist, monarch supporting, masonic anti-catholic dominated locale.

My shift to independence was part of a life long shift away from the populist politicos that mars this part of the country, and though getting better, still does (it was common when I first entered the labour market at job interviews to be first asked not what you did at school, but which school you went to- this was to check you didn't go to a catholic school). }}}

Although I have heard plenty of Scottish arguments for independence being purely to get away from the English, I was more referring to the general rise of populism splitting communities and countries apart.

As far as the UK goes I think it is the rise of UKIP, which is limited mostly to certain regions England and Wales including the county I live in, and the more extreme versions like the BNP and EDL that have caused a split not only along country lines within the UK but even with England itself.

Same can be said of things going on in the US with Trump and the problems that had caused and what you can see all across Europe right now.

I would add that it all looks like a reaction to the minority of the extreme left we have been getting their way for far too long. People are fed up of being told that every breath they take is offending some group or another and we should alter our way of life to let them in.

There are some very deep fractures that will take a while to fix... probably a few generations.

Corbyn is demanding 3 line whip. Good luck with that 'Shadow Proclamation'. what a numbskull.

https://www.theguardian.com/politics/2017/jan/26/corbyn-to-impose-three-line-whip-on-labour-mps-to-trigger-article-50-brexit

I don't really see any other course for Corbyn to take if he wants Labour to have a chance in any part of England north of the M25 in the next general election.

Quick response to the legal issues. (With due regard taken to my lack of in depth knowledge of the UK legal system and that I haven't actually had time to read the judgement in question.)

I think first it must be established that there are several issues at hand here. Among these, one must ask whether the EU membership of the UK falls under the devolved matters set out in the relevant legislation. And, secondly, what the effect of that it does would be.

The first question would relate to who has the competence in relation to EU membership. From the snippets referred in news media outlets, this seems to have played a part in the court's argument in the judgment relating to Brexit and the devolved parliaments competences. Possibly I can look further into this later if I find the time.  

I would consider that the question whether the so-called "Sewel Convention" has legal effect and creates legal obligation hinges not only on what it is, but on how it is written. In other words, the substantial content of the rules in question. If we look at the wording it is not definite in nature. Matters are devolved to the regional parliaments, but parliamentary sovereignty is maintained in the UK parliament. While the "Explanatory Memorandum" to the act does state UK parliament will not normally legislate in devolved areas of law, they retain the ability to do so.

14. The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. It is ultimately for Parliament to decide what use to make of that power. However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government.

Memorandum of Understanding (October 2013)

(My emphasis.)

It also expressly states:

It is not intended that these agreements should be legally binding.

Which is a bit of an odd statement, as agreements are normally legally binding just on the basis of being agreements.

However, the way the Convention is formulated does not seem in a manner able to give rise to legal obligation. It is worded more as a policy statement/statement of intent between the UK and devolved parliaments.

Now whether an agreement as the one in question could give rise to legal obligation is a different question.

Nomenclature isn't as important here as one would think. Whether the "Sewel Convention" is an actual convention is in itself debatable. It is set up as part of the "Explanatory Memorandum" to the The Scotland Act of 1998. It is as such not legislation in itself. Legislation is normally legally binding, even for parliament. While a sovereign parliament of course has the ability to change the substance of law for the future. But, an important point is that a parliament can make both atypical and typical legal acts that might give rise to legal obligation all the same.

Let's take EU law as an example. While the Union should primarily rely on the officially recognized legal acts of Union law,  primarily regulations, directives and decisions, atypical acts like agreements between Union bodies, the EU parliament, Commission and Council, between Union bodies and Member States and between Member States might still give rise to legal obligation. Other acts like declarations, resolutions and conclusions might too, while not officially recognized in EU legislation.

My view would therefore be that the "Sewel Convention" is not legally binding because of its nature and wording. If those were otherwise however, it might very well be. As such, I do have understanding for Sturgeon's statement to the effect that the agreement is not worth the paper it is written on. That that should be news to anyone, I have more trouble believing.

That is my thinking based on what I have seen in the news snippets on the case, if I had more time I might have looked further into it. Perhaps in time I will be able to.

Eldorion wrote:I don't really see any other course for Corbyn to take if he wants Labour to have a chance in any part of England north of the M25 in the next general election.

He shouldn't be forcing people to vote against their conscience, and regardless he doesn't stand any chance of winning anything north of the M25, Labour is over until he goes. All this does is create tensions and mass resignations. and remember 48% voted to Remain, that's a lot of people he would be better served protecting the rights of remainers.

{{{ May has pulled off a good move- credit where its due- even if its underhanded, devious and cunning, it is a good bit of politics.

She had to give concessions in the Brexit negotiations to the devolved parliaments, creating a special committee which will have input into the negotiation process.

But as of late the right wing press (and surprisingly to some perhaps most of the Scottish press is right wing as its either published in England with only minor modifications to make a 'Scottish issue'- see Daily Mail and its ilk, or its got a Scottish base, Scottish reporters, a Scottish editor, but non-Scottish right leaning paper magnet- see Murdochs press) has been building up the narrative that there is no will in Scotland for a second referendum, and so Sturgeon does not have the right to threaten one, citing the polls showing it stubbornly at about 47% for and 53% for no (which I actually think is remarkably high for Yes in this hugely uncertain Brexit/Trump America world) and continuing to hammer the line that the SNP are independence obsessed and have taken their eye off domestic politics to the suffering of the people (the people are suffering, but they are the people of Britain not of Scotland and its thanks to the hammering of austerity and its continued repercussions imposed on all from Westminster- and then when May took over abandoned as it was suddenly not that important to sort out the deficit after-all!)

Then May comes out and makes a statement saying as far as she is concerned the last referendum decision 'settled' the matter once and for all.

As any future referendum would first need Westminster approval to be official this is a serious thing to say and no previous government has done.

So why is this a good move?

Well as Ive pointed out previously the second referendum isn't at this point a 'real' thing, its Sturgeons great big negotiating stick, big because its pretty terminal for the UK if they win it, and big because its the only decent negotiating stick she has.

May is moving to try to declaw Sturgeon before she gets to the negotiating table.

Its a ballsy move with risks, but just as Sturgeon knows she really doesn't want to have a referendum right now if she can avoid it, so May knows she can gamble with saying now 'no chance' precisely because Sturgeon doesn't want to hold one now. She reckons Sturgeon wont call her bluff and try to hold one when the polls are against her and she will have to fight Westminster for it. May is guessing (rightly I think ) that in the present climate there is not the appetite in Scotland for it right now- there are more pressing matters to settle and folk want tot see the outcome of those first.


I did say that Sturgeons original move was made on the basis if you only hold 1 card you may as well put it on the table when you start, which was risky as it meant playing it early. Looks like May has had time to come up with a counter attack!

I will be watching keenly to see the next move on the board with this one! }}}

last time this happened it didn't turn out to well. well for Mary Queen of Scots it didn't. Lets hope Sturgeon has more canny moves.

http://politi.co/2kxVpFf

http://www.mirror.co.uk/news/politics/tory-mps-block-bid-reveal-9781752

I've seen several people on Question Time or online state that the £350 million 'promised' by the Leave campaign (i.e the figure that was not promised by the official Leave campaign and merely something a scattering of UKIP figures suggested as a possibility) was a deciding factor in them voting Leave, failing to realize that A) This was never promised B) It's a distortion of the facts, the EU sent us many millions of that back each week C) It was the Tories who gutted the NHS in the first place D) A hard brexit will lead to funding cuts across the board, make it harder for much needed EU citizens (who form such a large part of the NHS workforce) to get work permits in this country and possibly tanking the economy in a worst case scenario, leading to the dismantling of the NHS anyway.

The sheer idiocy of the British public, and self serving arrogance of our media and politicians never fails to impress me.