A time for serious debate…

20170128_182655The Supreme Court has issued its judgment in the Miller case and the Government have introduced the European Union (Notification of Withdrawal) Bill.  Those are statement of facts.   The judgment and the consequences are much debated.  The problem is that debate continues to be characterised more by heat than by light.

There is confusion as to what flows from the judgment.  One only has to read an article in the Guardian’s ‘Comment is Free’ section by Geoffrey Robertson QC to see the problem.  (Readers may wish to see how many factual errors they can identify.)  But perhaps most seriously of all is the extent to which the referendum campaign is, in effect, being re-fought and how much  the field of debate is populated by Mystic Megs.

I have a principled objection to referendums.  However, successive governments have not had such an objection and the consequence is that referendums are now part of our constitutional practice.  (The subject was well covered in the Constitution Committee’s 2010 report on referendums.)   Parliament passed the European Union Referendum Act 2015 providing for a referendum on whether to leave or remain in the EU.  The referendum was not legally binding, but the Conservative manifesto committed the party to implement the result, whatever the outcome.  The result was, in rounded terms, 52% for leave and 48% for remain.

There was no threshold to be reached for the vote to take effect.  As I have mentioned before, I raised the issue on Second Reading of the Bill, but there was no discernible appetite on the part of the two main parties to pursue the matter.

All that is, as far as I am aware, factually accurate.  One may not like having referendums, but we had one.  One may not like the result, but there was a result.  One may disagree with the judgement of the Supreme Court – I thought Lord Reed’s dissenting opinion was brilliant, but it was a dissenting opinion.  The Court has reached its judgment.

We now enter the muddy waters of the continuing debate.  I know how people voted.  I do not know why they voted as they did.  I do not know why people who did not vote failed to go to the polls.  It is remarkable how many commentators appear to know what people’s motivation was in voting for ‘leave’ (was it ‘soft Brexit’, was it ‘hard Brexit’?) and what is to be read into non-voting.  People who fail to vote are supporting by default the winning side.  They may not intend to, they may not like the result, but that is the effect.  Saying what proportion of the electorate failed to vote for leave only invites the response that an even bigger majority failed to vote for remain.

All this takes place within a wider debate as to the consequences of withdrawal from the EU.  There are two sides, reminiscent of Dad’s Army – ‘Don’t panic’ versus ‘We are doomed’ – again characterised by the presence of a good number of Mystic Megs.

It is not clear where the leadership will come in ensuring that we have an informed debate.  Newspapers tend to contribute to heat rather than light.  Referring to judges as ‘enemies of the people’ reflects ignorance on stilts and is more of a threat to the constitutional stability of the UK than the judgement of the court, though it is debatable whether the court itself has not raised the temperature unnecessarily by sitting as an eleven-member panel.  The onus now rests on both Houses of Parliament, not only in dealing with the EU (Notification of Withdrawal) Bill but also the later Great Repeal Bill.  Whether either House is up to the challenge remains to be seen.

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About Lord Norton

Professor of Government at Hull University, and Member of the House of Lords
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22 Responses to A time for serious debate…

  1. James Hand says:

    “One only has to read an article in the Guardian’s ‘Comment is Free’ section by Geoffrey Robinson QC to see the problem. (Readers may wish to see how many factual errors they can identify.)”

    I only spotted the one big error on first reading but some smaller ones leaped out on a second look. On a more trivial note, it was Robertson QC not Robinson.

  2. Lord Norton says:

    Well spotted. So much for repeated proof-reading…

  3. Croft says:

    <>

    Looking at the bill amendments the campaign is certainly being rerun!
    <>

    I’m bound to note the Courts seem able to create new ‘law’ in respect of creating ‘constitutional statutes’ without parliament’s consent and yet think referendums created by parliament of little consequence

    <>

    Agreed.

    <>

    However setting aside this bill; the judiciary having created a small hole in the constitutional dyke will if past practice is any judge (!) they will now keep opening the breach unless parliament closes it off with primary legislation.

    <>

    Is that really true? We do have a lot of polling issue by issue both generally and by the two camps. We even have some specifically asking people to choose between options (free movement -v- immigration for example.) I’m not saying we know exactly but I think we have some broad brush strokes.

    <>

    I suppose that’s at least not as bad as the ‘by 2019/20 enough old people will have died to invalidate the vote’ that seems to be doing the rounds in various remain circles and political party forums.

    <>

    An old judge once said to me that judges are as prone as lawyers in wanting to be part of the biggest cases that set precedent.

    I think it would also have taken heat out had at least one judge chosen to recuse themselves to avoid any perception of conflict of interest.

    <>

    I don’t know if you saw my comment on the last thread but additionally: Is there a briefing on the parliament site on the grounds for the speaker to declare amendments out of scope. I know what I think the rules are but can’t actually find the rules. Also reading the bill amendments (commons) list I found myself puzzled. Why are some MPs listed as ‘Mr’ or ‘Ms’ but most not. I have a cynical guess but you may know…

  4. Croft says:

    Sorry – for some reason my quotes stripped out.

    “But perhaps most seriously of all is the extent to which the referendum campaign is, in effect, being re-fought and how much the field of debate is populated by Mystic Megs.”

    Looking at the bill amendments the campaign is certainly being rerun!
    “The referendum was not legally binding”

    I’m bound to note the Courts seem able to create new ‘law’ in respect of creating ‘constitutional statutes’ without parliament’s consent and yet think referendums created by parliament of little consequence

    “I thought Lord Reed’s dissenting opinion was brilliant, but it was a dissenting opinion.”

    Agreed.

    “The Court has reached its judgment.”

    However setting aside this bill; the judiciary having created a small hole in the constitutional dyke will if past practice is any judge (!) they will now keep opening the breach unless parliament closes it off with primary legislation.

    “I do not know why they voted as they did.”

    Is that really true? We do have a lot of polling issue by issue both generally and by the two camps. We even have some specifically asking people to choose between options (free movement -v- immigration for example.) I’m not saying we know exactly but I think we have some broad brush strokes.

    “Saying what proportion of the electorate failed to vote for leave only invites the response that an even bigger majority failed to vote for remain.”

    I suppose that’s at least not as bad as the ‘by 2019/20 enough old people will have died to invalidate the vote’ that seems to be doing the rounds in various remain circles and political party forums.

    “though it is debatable whether the court itself has not raised the temperature unnecessarily by sitting as an eleven-member panel.”

    An old judge once said to me that judges are as prone as lawyers in wanting to be part of the biggest cases that set precedent.

    I think it would also have taken heat out had at least one judge chosen to recuse themselves to avoid any perception of conflict of interest.

    “The onus now rests on both Houses of Parliament, not only in dealing with the EU (Notification of Withdrawal) Bill but also the later Great Repeal Bill. Whether either House is up to the challenge remains to be seen.”

    I don’t know if you saw my comment on the last thread but additionally: Is there a briefing on the parliament site on the grounds for the speaker to declare amendments out of scope. I know what I think the rules are but can’t actually find the rules. Also reading the bill amendments (commons) list I found myself puzzled. Why are some MPs listed as ‘Mr’ or ‘Ms’ but most not. I have a cynical guess but you may know…

    • Lord Norton says:

      Croft: On your concluding queries, the House of Commons Library Research Paper (pp. 16-17) may be of some help:
      http://researchbriefings.files.parliament.uk/documents/CBP-7884/CBP-7884.pdf
      On Mr and Ms, I believe it depends on the preferences expressed by the Members themselves.

      • Croft says:

        Thankyou. The parliament site is an excellent resource but its not always very user friendly or obvious where to find things. I wrongly assumed I would be looking for a stand alone document not part of the bill briefing.

        I slightly chuckled at amendments being out of scope for being:

        “unintelligible or grossly ungrammatical”

        Btw did anyone else notice that the list of amendments was (online) stated two days ago to be dated as correct up to 30.1.2017. Clearly the clerks preparing them have unusual foresight!

      • Croft says:

        What about Lords Amendments. The LS can’t declare them out of scope unlike the commons. How then given its a non financial bill do they reconcile amendments with financial implications? Or is that just fudging semantics? ie “The UK must remain in the single market” -v- “The UK must seek to negotiate to remain in the single market” The former would seem to fail the test but the latter be complaint?

  5. Croft says:

    (Readers may wish to see how many factual errors they can identify.)

    Parliament didn’t take us into Europe. The Treaty did. Parliament judge brought the consequences into domestic law.

    Setting aside there being no evidence that people chose not to vote due to thinking remain would win. The polling doesn’t stand up that remain was going to win, let alone to the degree needed for people to have conceivably thought they didn’t need to vote.

    The Great Rep bill passage isn’t required to leave.

    Any others?

  6. Jonathan says:

    I for one am pleased with the judgement. Not because I believe it will (or should) delay our exit from the EU, but because the government showed incredible arrogance in the way it conducted itself.

    I fail to understand why people who are usually such firm supporters of Parliament should be so scared to have this particular issue debated. What are you all afraid of? I am confident Parliament will respect the will of the people, but at the same time fail to see why the most important and complex process facing our country for decades shouldn’t be debated in Parliament.

    I would still argue that it’s the final deal with the EU that is important, not Article 50, and the Prime Minister has already said there will be a vote in Parliament on that, in her speech the other week. Why is there so much fuss about debating Article 50, but very little about the future vote on the “Brexit” deal?

    • Croft says:

      “government showed incredible arrogance in the way it conducted itself.”

      If the government thought, like both LN a indeed myself that the law gave them the power to trigger Art50 and that they have the instruction from the referendum to do so its not arrogance but simple procedure.

      “I fail to understand why people who are usually such firm supporters of Parliament should be so scared to have this particular issue debated. What are you all afraid of? I am confident Parliament will respect the will of the people, but at the same time fail to see why the most important and complex process facing our country for decades shouldn’t be debated in Parliament.”

      The Gr Rep Bill is the detail bill and will be debated for months (literally when both houses and committees are included). The Art 50 is just a notification. The only purpose of a substantive debate and indeed those wanting an Act was a desperate hope of derailing the procedure. As indeed if you look at the amendments is being attempted.

      “To move the following Clause—
      “Commencement
      This Act shall not come into effect be
      fore Parliament has sat for one month
      following the first General Election that
      takes place **after** 31 March”

      Many of the other non-trivial amendments are designed to delay past the next general election the end of the process.

      “Why is there so much fuss about debating Article 50, but very little about the future vote on the “Brexit” deal?”

      As above. A significant delay now would put Brexit past the next general election and/or the crucial points of the deal being decided around an election. The GRP can go on for months and the final vote doesn’t mess with the timetable substantively.

  7. maude elwes says:

    You know outsiders reading this blog must wonder if you on the inside have one iota of common sense. If you understand law, and I know you do, to remain silent is taken as consent. Remember Thomas More?

    So, although the referendum to leave Europe may have shown a good percent of the population wanted to leave, the result did not truly cover the so called ‘facts.’ The people, in not voting and therefore remaining silent, gave consent to the will of the people. Which, no matter how you duffs want to play it, means to any mind steeped in reality, that a vast majority of the people or electorate voted, by their silence, to leave.

    Had they wanted a different result they would have spoken.

    And if you all believe another vote is going to change the result, think again. The fake news may play around repeatedly with the truth they are obviously afraid to face. More now than ever want rid of the leviathan from our lives we have been strapped to for decades and want rid fast. The stalling is having the opposite effect to the moronic faces of our ‘elected’ MP’s as they spout foam from their ignorant mouths telling us all we do want to be ruled by drunks and the mad dogs of Europe.

    The longer May stalls the more she will become unelectable when she finally has to call an election.

    • tizres says:

      Happy New Year, Maude!

      For ‘fake news’ read ‘accelerated semantic drift’.

      • maude elwes says:

        And a Happy New Year to you, Tizres. As always, it’s been good to read your posts.

        I will check out your suggestion on ‘fake news’. Thank you.

        Take care.

    • Lord Norton says:

      maude elwes: not quite clear as to who your comments are directed…

      • maude elwes says:

        @ LN:

        My post was/is directed to those who are dedicated to thwarting the will of the people. In other words, those who actively work to destroy the ‘little’ democracy we have.

        In fact, it was aimed at those who are against any form of ‘Direct Democracy.’ As that is the only democracy that counts.

        A country led by individuals who are not in touch with the electorate, or, who lie to cover their true political aims. They are the the bane of society, as well as the present cause of the mayhem we now witness across the Western world. The ones who deny reality and refuse to acknowledge the facts connected to their actions.

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