A+A on Brexit - The Return of the Living Dead

recedite

It has already started. Without getting hung up on the word "preliminary", it is obvious that no trade deal can take effect until the UK has officially left the EU. That is the actual restriction resulting from the law being referred to.

recedite

recedite wrote: »

It has already started. Without getting hung up on the word "preliminary", it is obvious that no trade deal can take effect until the UK has officially left the EU. That is the actual restriction resulting from the law being referred to.

from the link

Government sources said talks were unlikely to go into great detail but would provide an early platform for future negotiations. Javid said he would use the discussions to outline the government’s “vision for what the UK’s future trade relationship might look like”.

That indeed does seem a very reasonable and prudent thing to do. Set out 'how we might find a deal' in the future, who talks to who etc. Very little in the way of nitty gritty which of course is the problem, given that the arguments over the dots on an i and the cross on a t are what is going to be the most difficult and lengthy parts of all of this.

Interesting of course to listen to people speaking to the parliamentary committee the other day about their thoughts on the matter. Both agree that 'where there's a will there's a way' with regards to getting up and running, but both were very negative about the prospects of full and worthwhile engagement, on anything like the 'wanted' terms.

http://parliamentlive.tv/Event/Index/edd13153-7ed7-48b3-9643-472e6be0462e

Witnesses: Hosuk Lee-Makiyama, Director, European Centre for International Political Economy, Shanker Singham, Director of Economic Policy and Prosperity Studies, Legatum Institute

That's from an economic and absolutely not a legal perspective.

Here's the legal perspective, questions asked by the same committee of some legal experts.

http://parliamentlive.tv/event/index/cb083c53-3998-4f3a-8eca-e114e3dbdf0b

Witnesses: Professor Michael Dougan, Professor of European Law, University of Liverpool, Dr Robin Niblett CMG, Director, Chatham House, Sir Emyr Jones Parry, former UK Permanent Representative to the United Nations, and Raoul Ruparel, Co-Director, Open Europe.

Here are two other videos created by one of the witnesses that help to describe both the legal situation before the vote and now in legal situation in the 'post vote pre Article 50' limbo position.

Quite a lot of video to cover there, and am not expecting you to do so unless you really are interested. I have been through the lot though. Ignoring that there are very real legal issues is not really an option I'm afraid.

recedite

I notice that you are (wisely) not quite backing the false premise that no trade negotiations will take place until after UK has completely left the EU.

I like the Prof. Dougan video, he is a straight talker. Just to pick out one point, his idea that the compatibility of the "regulatory environment" is more important to international trade than simple export tariffs (which can be slapped on or off quite easily). This is correct, but he ignores the fact that Chinese goods can be CE marked and sold in the EU now, despite China being outside the EU. So, in reality the UK after Brexit will be forced into manufacturing its goods to EU standards. BS standards will continue to mimic EN standards. That is not a major imposition, it is just a slight loss of status. We were in the same position for years ourselves vis á vis the UK; so when they switched to 3 pin plugs, we did too. We copied all their regulatory standards, and our electrical appliances ran at a compatible voltage and hertz. The UK will be in the same kind of relationship with the EU; forced to ape all the relevant standards, simply localising the names and title pages.

The overall problem that Brexit has exposed in the EU is that it has grown too far too soon, so that it now falls somewhere between a common market and a federation. The euro has been a disaster for peripheral countries. The Schengen borderless core has been a disaster, in the absence of external borders.

The UK has shown it can change. The next stage is for the EU to change into a two-tier organisation. Tier 1 needs more federalisation; a banking union, central fiscal policies, a common tax and social welfare zone, an effective external border. Within Tier 1, the citizens of peripheral countries should not be disadvantaged as they are now. A car should be the same price in Ireland as it is in Germany. A mortgage should be loaned out at the same interest rate.

Tier 2 needs to be just a common market, without free movement of people. Countries such as the UK, Norway, Switzerland would prefer this. Also, the accession countries such as Romania should have been required to remain in Tier 2 for several decades or as long as it took for their economies, political, and justice systems to "harmonise" with the Tier 1 countries.

EU and EEA is what you are proposing.

They exist.

While we don't have an overarching federal structure, there are 'agreements' which aim to create a somewhat federal system. Growth & Stability Pact is in effect an attempt at a fiscal union, though without debt mutualisation and/or enormous wealth transfers (these occur through EU structural Grants though).

I would be one who still is unsure about what all the fuss is behind actually aiming and being outright and straight about the idea of the "United States of Europe". I understand that it won't be formed overnight, but I see nothing wrong whatsoever with being open about that being 'the plan' for the EU.

BoatMad

I would be one who still is unsure about what all the fuss is behind actually aiming and being outright and straight about the idea of the "United States of Europe". I understand that it won't be formed overnight, but I see nothing wrong whatsoever with being open about that being 'the plan' for the EU.

IN practice the Eurozone is just that a US of E. There are elements missing , but they are being considered

BoatMad

The whole thing is based on a false premise; that the UK will trigger Brexit and then sit on its hands for the next two years, instead of instigating alternative arrangements and trade deals.

what alternative arrangements. The EU accounts for close to 50% of its trade and is of huge strategic importance to the UK tech industry and finance industries in particular

It CANNOT arrange bilateral trade deals with EU members, hence it can only arrange deals with non EU countries, many of which are not of much economic importance to the UK. Equally any major trade deal , like with the US, or china , will take years to accomplish and will only be likely too happen POST the completion of the Article 50 process, when other countries can see the certainty. The whole issue with NI and Scottish desires to remain in the EU will also have to be resolved before any third trade deal will be signed

The fact is simple , the leave campaign was full of disingenuous lies and the UK has f&cked itself in the process . There is no upside

robindch

The uncertainty continues - who has the necessary authority to execute Article 50? Parliament and the PM each seem to think they do; the legal establishment agrees with one side, but not the other; the judiciary is unhappy treading in this area; a legal decision in favour of Parliament could trigger further political and constitutional problems.

http://www.irishtimes.com/business/economy/how-a-hairdresser-s-lawsuit-could-spell-trouble-for-brexit-1.2749034

recedite

The Parliament has not said it needs to be consulted. A hairdresser has. That is an important distinction.

In fact, the authority comes from the people, via referendum. The govt. can implement the will of the people directly, without going through the elected representatives, who are only the middlemen in this scenario. That's how it will play out, but at the same time it is a novel situation because referendums are quite rare in the UK.

Of more interest to us is maintaining the free trade status between Ireland and the UK. In an ideal world this would be a no-brainer because both of us want to maintain a free trade arrangement.

But in this brave new world where all the big EU decisions are made in Berlin, we must wait to receive our orders. The EU demands will be decided by Merkel and presented to the French for agreement, and then subsequently rubber-stamped at an EU Council of Ministers meeting. Apparently Merkel is less enthusiastic about "punishing" the UK with hefty trade tariffs, compared to the French attitude, which is good.

Absolam

recedite wrote: »

In fact, the authority comes from the people, via referendum. The govt. can implement the will of the people directly, without going through the elected representatives, who are only the middlemen in this scenario. That's how it will play out, but at the same time it is a novel situation because referendums are quite rare in the UK.

What authority do the people have via referendum in the British Kingdom?

I though we were all told prior to the referendum that it wasn't actually binding; Parliament could legally ignore it?

Peregrinus

recedite wrote: »

The Parliament has not said it needs to be consulted. A hairdresser has. That is an important distinction.

In fact, the authority comes from the people, via referendum. The govt. can implement the will of the people directly, without going through the elected representatives, who are only the middlemen in this scenario. That's how it will play out, but at the same time it is a novel situation because referendums are quite rare in the UK.

Well, it's not that simple.

Certainly, in my view, the UK government can give Art. 50 notice to the EU and, at the expiry of the notice period, the UK will cease to be a member of the Union, regardless of what (if anything) Parliament says.

But that won't achieve what Brexiters want. EU legislation has the force of law in the UK because the European Communities Act 1972 - an Act of the UK Parliament - says it does. And even if the UK leaves the Union, EU law will continue to apply in the UK until Parliament amends or repeals that Act.

So, to achieve what they seek to achieve through Brexit, they do need to get Parliament on board.

Similarly, whatever replacement arrangements are put in place as between the UK and the EU, and whatever arrangements are going to be put in place between the UK and third countries, are almost certain to require measures which can only be implemented by the UK Parliament.

And there's a wider point. The only reason the UK government - any UK government - holds office is because it enjoys the confidence of Parliament. If they have a major policy commitment - like Brexit - which they can't get through Parliament, they either have to abandon the policy commitment (which at this point is politically unthinkable) or dissolve Parliament and go to the country which they really, really don't want to do.

So, on the one hand the government doesn't need parliamentary approval to serve the Art. 50 notice, which commits the UK to leaving come what may. On the other hand, as a political reality they can't do this unless they are sure that Parliament will co-operate to implement the Brexit and the successor/replacement arrangements.

Peregrinus

Absolam wrote: »

What authority do the people have via referendum in the British Kingdom?

The people have as much authority as Parliament grants them. The Act of Parliament which provides for the holding of a referendum will say what the legal effects of the referendum result will be. If it doesn't provide for th result to have any effect, it's merely advisory.

For example, when it came to Scottish devolution, the (UK) Parliament passed an Act to establish a Scottish Parliament and executive, to devolve powers to it, etc. But they included provisions in the Act to say (a) that there was first of all to be a referendum, and (b) that the rest of the Act would come into operation a fixed period after being approved in that referendum.

The result was, when the referendum result was declared, that was effective to bring Scottish devolution into effect some months later. No further action by the UK Parliament was required because the UK Parliament had already decreed that this was how the referendum would work.

Absolam wrote: »

I though we were all told prior to the referendum that it wasn't actually binding; Parliament could legally ignore it?

Yes, that's right. Legally speaking, the Brexit referendum was just a very large opinion poll. The legislation for the conduct of that referendum doesn't provide for the declaration of the result to have any legal consequences or effect at all.

Politically, of course, it creates a strong mandate for leaving the EU. And the mandate is all the stronger because the Tory government was elected on an explicit manifesto promise to (a) hold the referendum, and (b) respect the result. At this point they have to leave, unless they seek and obtain a new mandate to remain which would supersede the mandate conferred by the referendum. And right now I don't see that happening.

robindch

recedite wrote: »

The Parliament has not said it needs to be consulted. A hairdresser has. That is an important distinction.

Not sure if you had time to read the article fully - but the hairdresser, together with a number of other people, are taking a case likely to end up before the UK's Supreme Court regarding hether Article 50 can be triggered without a vote in parliament.

The interesting aspect of this being that the case is likely to pit various state institutions against each other in a way which most have tried to avoid.

recedite

recedite wrote: »

The Parliament has not said it needs to be consulted. A hairdresser has. That is an important distinction.

And a ream of legal experts too of course.

recedite wrote: »

In fact, the authority comes from the people, via referendum. The govt. can implement the will of the people directly, without going through the elected representatives, who are only the middlemen in this scenario. That's how it will play out, but at the same time it is a novel situation because referendums are quite rare in the UK.

Parliament is Sovereign in the UK. Referendum advisory.

recedite wrote: »

Of more interest to us is maintaining the free trade status between Ireland and the UK. In an ideal world this would be a no-brainer because both of us want to maintain a free trade arrangement.

Of course. Even neglible tarrifs and customs hinder trade massively between the two states. Any change whatsoever from the current status quo results in further friction in trade, meaning further costs in trade.

recedite wrote: »

But in this brave new world where all the big EU decisions are made in Berlin, we must wait to receive our orders. The EU demands will be decided by Merkel and presented to the French for agreement, and then subsequently rubber-stamped at an EU Council of Ministers meeting. Apparently Merkel is less enthusiastic about "punishing" the UK with hefty trade tariffs, compared to the French attitude, which is good.

Is this new world newer than June of this year? When were the treaty changes?

http://www.bloomberg.com/view/articles/2016-06-15/the-myth-of-germany-s-dominance-in-the-eu

The highest-ranking German in the EU hierarchy is Martin Schulz, president of the European parliament. The EU legislature is weaker than any of its members' own national parliaments, unable even to initiate legislation. It's the faceless technocrats on the European Commission's staff that do that, and Germans only make up 10 percent of the commission's non-technical staff, while Germany's population makes up 16 percent of the European Union's.

Germany is, indeed, a little overrepresented when it comes to contributing money to EU programs. Its 2015 economic output was about 20.7 percent of the entire EU's, but its share of the EU budget reached 21.4%.

Germany, of course, is the bloc's biggest economic power and its most populous country, but if the EU were designed to give an institutional advantage to bigger countries, nobody would have joined it in the first place.

In 2016, German dominance in the EU is a myth. The only advantage Germany has over its neighbors is a stronger economy.

recedite

Peregrinus wrote: »

The people have as much authority as Parliament grants them.

I respectfully disagree. Its the other way round.
Being an unwritten constitution, you won't find the answer written down anywhere. But you can go back and look at the evolution of the state and at historical precedent.
In theory the monarch is ultimately in charge, but she delegates the powers of government to Parliament, which in turn delegates governance to a subset which is the Cabinet.

A previous monarch got stripped of his powers by Cromwell and beheaded. But only because enough people had backed Cromwell and his republicans. But subsequently the people changed their minds and restored the monarchy. Since then the Parliament and the Monarchy have in theory ruled by consensus, at the insistence of the people.

Peregrinus wrote: »

Yes, that's right. Legally speaking, the Brexit referendum was just a very large opinion poll. The legislation for the conduct of that referendum doesn't provide for the declaration of the result to have any legal consequences or effect at all. Politically, of course, it creates a strong mandate for leaving the EU. And the mandate is all the stronger because the Tory government was elected on an explicit manifesto promise to (a) hold the referendum, and (b) respect the result. At this point they have to leave, unless they seek and obtain a new mandate to remain which would supersede the mandate conferred by the referendum. And right now I don't see that happening.

Yes and No. The referendum is a direct mandate from the people. As such it supersedes the mandate of the Tories to interpret and represent the wishes of the electorate who elected them.
Neither mandate is written down, but of the two, the direct mandate is stronger. Both mandates rely on an honour system. For example, if a PM loses the confidence of the people's representatives in Parliament, he/she voluntarily goes to the monarch to resign. That way, nobody gets beheaded.

recedite

robindch wrote: »

Not sure if you had time to read the article fully - but the hairdresser, together with a number of other people, are taking a case likely to end up before the UK's Supreme Court regarding whether Article 50 can be triggered without a vote in parliament.

The interesting aspect of this being that the case is likely to pit various state institutions against each other in a way which most have tried to avoid.

I have read it. Where does it say that Parliament intends to defy the referendum result and will refuse to pass any legislation required?
Just because a hairdresser thinks they should, does not mean it will happen, or is even likely to happen.

recedite

recedite wrote: »

I have read it. Where does it say that Parliament intends to defy the referendum result and will refuse to pass any legislation required?
Just because a hairdresser thinks they should, does not mean it will happen, or is even likely to happen.

The Parliament not saying it has to be consulted (equally, has also not said that it does not!) is not the same as the Parliament saying that it does not need to be consulted.

recedite

Deleted User wrote: »

Is this new world newer than June of this year? When were the treaty changes?

So you think we will have a say in what trade tariffs, if any, are introduced between the UK and Ireland?
For example, where was Enda Kenny when these two meetings were being held, one on the Monday and one on the Saturday after the Brexit referendum?
Germany's modus operandi is to make a policy, then get agreement in progressively widening circles. By the time Ireland gets to hear about it, the new policy is being presented as a fait accompli and we have no choice but to agree and rubber stamp it an official council of ministers meeting.

recedite

Deleted User wrote: »

The Parliament not saying it has to be consulted (equally, has also not said that it does not!) is not the same as the Parliament saying that it does not need to be consulted.

That is known as "a moot point".

recedite

recedite wrote: »

So you think we will have a say in what trade tariffs, if any, are introduced between the UK and Ireland?

We will have the exact same say as Lithuania, or Italy, Or Germany in fact.

recedite wrote: »

For example, where was Enda Kenny when these two meetings were being held, one on the Monday and one on the Saturday after the Brexit referendum?

Neither of those meetings were to set trade tariffs . Given that the UK has not presented what it wants from the EU, there is almost no discussion to be had about what tariffs might be necessary. The UK electing to join EFTA would see tariffless trade continue as is, just a removal from the Political element of the EU.

recedite wrote: »

Germany's modus operandi is to make a policy, then get agreement in progressively widening circles.

Shocking idea. Put forward an idea, then garner support for it. Crazy stuff.

recedite wrote: »

By the time Ireland gets to hear about it, the new policy is being presented as a fait accompli and we have no choice but to agree and rubber stamp it an official council of ministers meeting.

Did you read the article that I linked? Who does the negotiations on the part of the EU? The 'faceless technocrats' yes? Of which there demonstrably is no bias towards Germany.

It's the faceless technocrats on the European Commission's staff that do that, and Germans only make up 10 percent of the commission's non-technical staff, while Germany's population makes up 16 percent of the European Union's.

If a 'fait accompli' is presented to the European Council then that is the same for all members of the Council, and certainly, certainly not to any tangible benefit to Germany.

recedite

Deleted User wrote: »

Did you read the article that I linked? Who does the negotiations on the part of the EU? The 'faceless technocrats' yes? Of which there demonstrably is no bias towards Germany.

I did yes. The main jist of the article exaggerates the importance of the European Commission, but if you read it carefully the only thing it says they do is to "initiate legislation". But at the behest of who?
Its like saying that TD's in the Dail do not have much influence over our domestic legislation because "faceless civil servants draught the Dail bills". The European Commission has zero authority in the EU.

Are you withdrawing the strange claims about tariffs and Kenny's absence or are they going to come back up again?

European Commission - https://en.wikipedia.org/wiki/European_Commission

Commissioners swear an oath at the European Court of Justice in Luxembourg, pledging to respect the treaties and to be completely independent in carrying out their duties during their mandate

The Commission operates as a cabinet government, with 28 members of the Commission (informally known as "commissioners").There is one member per member state, but members are bound by their oath of office to represent the general interest of the EU as a whole rather than their home state.

The term Commission is used either in the narrow sense of the 28-member College of Commissioners (or College) or to also include the administrative body of about 23,000 European civil servants who are split into departments called directorates-general and services

Perhaps you should read up on what it is you are talking about.

Through Article 17 of the Treaty on European Union the Commission has several responsibilities: to develop medium-term strategies; to draft legislation and arbitrate in the legislative process; to represent the EU in trade negotiations; to make rules and regulations, for example in competition policy; to draw up the budget of the European Union; and to scrutinise the implementation of the treaties and legislation. The rules of procedure of the European Commission set out the Commission's operation and organisation.

recedite

Deleted User wrote: »

Are you withdrawing the strange claims about tariffs and Kenny's absence or are they going to come back up again?

What, my claim that Irish representatives were not invited to meetings which were called to discuss the EU response to Brexit? I'll stand by that claim, thanks.

The Commission can be summarised as a bureaucratic service which comes up with ideas and presents them to others as proposals.

The Council of Ministers is where the decisions are supposedly made, but by the time that meeting is convened the policy decision has already been made at private bilateral meetings organised by Berlin. Our guy just goes along and agrees.

So what influence have we had so far regarding our future trade relations with the UK?
None. we are simply waiting for instructions. Enda is only informed about what is going on on a need-to-know basis. And as far as Berlin is concerned, he needs to know nothing.

BoatMad

Yes and No. The referendum is a direct mandate from the people. As such it supersedes the mandate of the Tories to interpret and represent the wishes of the electorate who elected them.
Neither mandate is written down, but of the two, the direct mandate is stronger. Both mandates rely on an honour system. For example, if a PM loses the confidence of the people's representatives in Parliament, he/she voluntarily goes to the monarch to resign. That way, nobody gets beheaded.

the UK is governed by laws, under those laws , unless Parliament lays out the consequences of a referendum in law, then a referendum is no more then an opinion poll.

That is the legal position, you may wish to expound a vague wishy washy version but thats how it works

Nor is there any reason why a referendum couldnt be rerun or Brexit cancelled etc. Parliament will have to decide what is in the best interests of the UK.

It is Parliament that is sovereign not the people

BoatMad

A previous monarch got stripped of his powers by Cromwell and beheaded. But only because enough people had backed Cromwell and his republicans.

not really , it was primarily that Cromwell had a well organised army, the public was not really consulted in anything in those days

recedite

recedite wrote: »

What, my claim that Irish representatives were not invited to meetings which were called to discuss the EU response to Brexit? I'll stand by that claim, thanks.

So you think we will have a say in what trade tariffs, if any, are introduced between the UK and Ireland?
For example, where was Enda Kenny when these two meetings were being held, one on the Monday and one on the Saturday after the Brexit referendum?

The example given is that because Enda Kenny wasn't involved in these two meetings, that you believe that we have no say in what trade tariffs, if any, are introduced between the UK and Ireland.

Am I correct?

recedite wrote: »

The Commission can be summarised as a bureaucratic service which comes up with ideas and presents them to others as proposals.

Well no, no it can't. You can try to. But you are wrong. Please see above as I have linked the summary of the Commission, which has far greater powers than your weak summary. It was one of the few pieces from the Vote Leave campaign that was valid, that the Commission, being independent from the Parliaments had to work towards EU goals, which in general have a duality with the aggregated Parliaments but in isolation could indeed make decisions which 'hurt' individual Parliaments.

recedite wrote: »

The Council of Ministers is where the decisions are supposedly made, but by the time that meeting is convened the policy decision has already been made at private bilateral meetings organised by Berlin. Our guy just goes along and agrees.

Which decisions? The ones on Trade (remember this stems from you complaining that Ireland won't have any effect on Trade Tarrifs with the UK because Enda Kenny wasn't invited to a meeting of some EU Founders) which fall explicitly under the remit of the Commission?

The Commission which works towards the advancement of the EU, not at the behest of any of the individual nations, as if it does not it can be summarily dismissed by the European Parliament?

recedite wrote: »

So what influence have we had so far regarding our future trade relations with the UK?
None. we are simply waiting for instructions. Enda is only informed about what is going on on a need-to-know basis. And as far as Berlin is concerned, he needs to know nothing.

The UK has not set out what it wants to become in relation to the EU. If they chose EFTA & EEA, then the square root of nothing changes with regards to our Trade with them. What influence do you suggest we seek to exercise before the UK decides what future relationship it wants with us?

Should Enda be battering down doors telling Merkel and Hollande that Ireland simply won't stand for anything other than wholly unbridled Free Trade with the UK? Or addressing the Parliament in Brussels on the need to bow to the UK's wishes entirely so as to debase the entire idea of the EU and the preceding EEC?

BoatMad

The UK has not set out what it wants to become in relation to the EU. If they chose EFTA & EEA, then the square root of nothing changes with regards to our Trade with them. What influence do you suggest we seek to exercise before the UK decides what future relationship it wants with us?

Should Enda be battering down doors telling Merkel and Hollande that Ireland simply won't stand for anything other than wholly unbridled Free Trade with the UK? Or addressing the Parliament in Brussels on the need to bow to the UK's wishes entirely so as to debase the entire idea of the EU and the preceding EEC?

This is a very pertinent paragraph. The ball lies firmly with the UK , in deciding what its relationship will be ( and how that works internally in the UK , aka Scotland and NI). only then can Ireland react

To suggest that the concerns of Ireland in relation too the UK are not visible in the EU is nonsense

robindch

BoatMad wrote: »

The ball lies firmly with the UK , in deciding what its relationship will be ( and how that works internally in the UK , aka Scotland and NI). only then can Ireland react.

Not quite true. The UK can suggest that it wants one kind of relationship or another, but it's equally up to the other country to accept this or not - and endless negotiations can, and are quite likely, to result.

With the possible exception of Ireland, the UK is in a very weak negotiating position as it needs trade deals much more than other countries do and it's possible, and even likely, that many countries are going to play hardball with the UK before it can gain entry, for example, to EFTA - and Norway has already signalled that it's not happy. What if Spain wants joint custody of Gibraltar? France wants to shut out UK banks from free access to EU markets?

In general terms, the UK is going to have to manage some balancing act with the 26 other countries of the EU while trying to sweet-talk the EFTA countries - heaven only knows how they can manage that - I certainly can't see any way of doing it.

The best deal is what's there now, and they have it with zero negotiation. Anything else is going to take years, cost billions, have no certain outcome, could potentially result in the breakup of the UK, and produce a lesser deal. Though I doubt the brexiteers will appreciate that, or worry about it if they do.

Of course, May could put whatever exit terms she manages to secure to a second "Will we leave on these terms?" referendum after two years of negotiations after triggering Article 50 and hope that the electorate comes to its senses. And other countries might negotiate with that in mind. But regardless of that, f the UK votes to exit on crappy terms, well, the EU and everybody else really is better off without them.

robindch

In general - jeez, what a completely hideous and completely unnecessary mess.

BoatMad

robindch wrote: »

In general - jeez, what a completely hideous and completely unnecessary mess.

A classic example of Tory party Hubris , imperilling a nation to try and solve an internal Tory party problem.,

BoatMad

robindch wrote: »

Not quite true. The UK can suggest that it wants one kind of relationship or another, but it's equally up to the other country to accept this or not - and endless negotiations can, and are quite likely, to result.

With the possible exception of Ireland, the UK is in a very weak negotiating position as it needs trade deals much more than other countries do and it's possible, and even likely, that many countries are going to play hardball with the UK before it can gain entry, for example, to EFTA - and Norway has already signalled that it's not happy. What if Spain wants joint custody of Gibraltar? France wants to shut out UK banks from free access to EU markets?

In general terms, the UK is going to have to manage some balancing act with the 26 other countries of the EU while trying to sweet-talk the EFTA countries - heaven only knows how they can manage that - I certainly can't see any way of doing it.

The best deal is what's there now, and they have it with zero negotiation. Anything else is going to take years, cost billions, have no certain outcome, could potentially result in the breakup of the UK, and produce a lesser deal. Though I doubt the brexiteers will appreciate that, or worry about it if they do.

Of course, May could put whatever exit terms she manages to secure to a second "Will we leave on these terms?" referendum after two years of negotiations after triggering Article 50 and hope that the electorate comes to its senses. And other countries might negotiate with that in mind. But regardless of that, f the UK votes to exit on crappy terms, well, the EU and everybody else really is better off without them.

Yes but Ireland cannot react , other then some general politicking, until the nature of the UK next step is clear. IN the current climate , they could quit easily press the nuclear button of article 50 with no clear path forward. I font think May is that stupid, but there are elements in her party that are not rational thinkers on this subject

recedite

robindch wrote: »

In general terms, the UK is going to have to manage some balancing act with the 26 other countries of the EU while trying to sweet-talk the EFTA countries - heaven only knows how they can manage that - I certainly can't see any way of doing it.

No need for all that malarkey. Just go straight to the boss and come to some arrangement. You'll have noticed that Theresa May's first priority after becoming the British PM was to go to Berlin and have a private chat with Angela Merkel. Even if that meant having to admire Angela's imperial stormtroopers first.

Second priority was to visit Hollande on the way home, just so he wouldn't feel left out.

recedite

recedite wrote: »

No need for all that malarkey. Just go straight to the boss and come to some arrangement. You'll have noticed that Theresa May's first priority after becoming the British PM was to go to Berlin and have a private chat with Angela Merkel. Even if that meant having to admire Angela's imperial stormtroopers first.

Actually she spoke on the phone to Enda Kenny prior to that

http://www.bbc.co.uk/news/world-europe-36788419

They probably didn't discuss Trade Tariffs though of course. In either conversation.

recedite

We know that both Enda and herself said they did not want to return to a miltarised "hard" border between NI and ROI. Fair enough, nobody ever wanted that anyway. It was never on the cards, despite being mentioned in the anti-Brexit fearmongering campaign.

They may, or may not, have said to each other that neither side wants trade tariffs. But if so, she may as well have been talking to the shoeshine boy. Nothing of any substance to discuss then, just a PR phonecall.

It is not as simple as "we do not want tariffs" therefore no tariffs.

Just as it is not as simple as "we do not want a hard border" therefore no border.

Any thoughts on that European Commission mandate?

recedite

The border is a matter for the UK and Ireland to decide. The EU has no control over its external borders.

The Irish/UK trade arrangements are a matter for the UK and Germany to decide, as we have no control over our trade arrangements.

The commission, as I said, is a civil service which produces ideas and proposals and draughts, but has no authority to sign off on anything. Everything must be approved by either the European Parliament or the Council of Ministers.

Peregrinus

recedite wrote: »

I respectfully disagree. Its the other way round.
Being an unwritten constitution, you won't find the answer written down anywhere. But you can go back and look at the evolution of the state and at historical precedent.
In theory the monarch is ultimately in charge, but she delegates the powers of government to Parliament, which in turn delegates governance to a subset which is the Cabinet.

What's missing there is any delegation by the people, Rec!

I think we need to distinguish between the legal and political realities (while at the same time accepting that they're both realities, and they're both important).

The legal reality is that executive authority (the authority which must be invoked to serve the Art. 50 notice) is vested in them monarch, but she exercises that authority on the advice of her Ministers, and her Ministers are (constantly, on a continuing basis) accountable to Parliament, and Parliament is (intermittently, every five years or so) accountable to the people.

The referendum doesn't enter into the legal calculation at all. Legally, the referendum has no effect. Parliament, exercising the legislative authority which the people have democratically mandated them to exercise, has decreed that it has no legal effect, so it doesn't.

Politically, however, it's a different story. The present government was elected on an explicit manifesto commitment to (a) hold a referendum, and (b) respect the result. I think that creates an almost irresistible political obligation to proceed with Brexit. Should the government announce that it's not going to proceed with Brexit (which I don't expect them) Parliament would be within its legal rights, and under a political obligation, to vote no confidence in the government and trigger a general election.

So, entirely hypothetically, should the government negotiate the best Brexit deal they can, and conclude that it really, really is not in the UK's interests to exit on those terms and they cannot in good conscience implement the Brexit, what should they do?

Legally, they can just not proceed. Politically, they run the risk of a vote of no confidence and a general election. Even if Parliament doesn't sling them out, they'll face a general election sooner or later, and the electorate can pass judgment on their failure to honour their previous commitments.

But the British constitution includes both the legal and the political dimensions. If they decide they don't want to proceed with Brexit, what's the constitutionally proper way to go about that?

The constitutionally proper way is to seek a mandate for their new policy. And they could do this in either two ways. First, they could hold another referendum. Secondly, they could dissolve Parliament and go into a general election on a manifesto commitment of not proceeding with Brexit, and hope to obtain a majority.

One of the idiosyncratic features of the British constitution is that a mandate secured at a general election is considered to be the best possible, strongest possible mandate. Recall that the Tories are in the position they're in right now is not because they held a referendum, but because they won a general election on the strength of a commitment to respect the result of the referendum. Recall also that a referendum has political effects but not legal effects, whereas a general election has both political and legal effects.

So, I think if the UK government did want not to proceed with Brexit, they are more likely to seek a mandate for that course through a general election than through a referendum. In the first place, in the Westminster tradition this is the strongest mandate you can get. In the second place, after what happened in June it'll be a long time before they hold another referendum on such an issue.

Peregrinus

recedite wrote: »

The border is a matter for the UK and Ireland to decide. The EU has no control over its external borders.

The Irish/UK trade arrangements are a matter for the UK and Germany to decide, as we have no control over our trade arrangements.

These things can't both be true, since traded goods move across borders. Ireland's decisions about how to operate its land border with the UK have to be made in a way which gives effect to EU trade, migration and other policies.

recedite

Peregrinus wrote: »

These things can't both be true, since traded goods move across borders. Ireland's decisions about how to operate its land border with the UK have to be made in a way which gives effect to EU trade, migration and other policies.

They can both be true. Ireland and UK can decide where the border is and how it is manned and physically delineated.
EU decides what tariffs if any will apply to goods crossing that border.

smacl

recedite wrote: »

They can both be true. Ireland and UK can decide where the border is and how it is manned and physically delineated.
EU decides what tariffs if any will apply to goods crossing that border.

Could get rather complex, when you consider things like VAT on point of entry, and other VAT rules applied at current external borders no non-EU imports and exports (i.e. at ports and airports). I don't think an unmanned soft border could work without free movement of goods between Ireland and the UK, you'd need customs of some kind.

recedite

Peregrinus wrote: »

What's missing there is any delegation by the people, Rec!

The monarch can only survive and rule with the permission of the people. The social contract is the philosophical notion that completes the circle of power.
Its a bit like a game of rock-paper-scissors where the least powerful entity is also the most powerful. This social contract goes right back to the Magna Carta in codified form. And before that, there were Brehon type Celtic laws providing rights to people and limits to power.
In continental Europe this idea has always been less well developed. So the unbridled excesses of absolute power; monarchy, feudalism, machiavellian princes, and dictatorship have often gone unchallenged.

Peregrinus wrote: »

The referendum doesn't enter into the legal calculation at all. Legally, the referendum has no effect. Parliament, exercising the legislative authority which the people have democratically mandated them to exercise, has decreed that it has no legal effect, so it doesn't.

Can you provide a link to this decree? I accept that the wording of the referendum did not contain a particular trigger (eg that if x% of the population votes one way then y legislation will be passed). But that is not the same is decreeing that it has no legal effect. There was a very definite question presented, with a definite cause and effect according to which way the vote went.

One of the idiosyncratic features of the British constitution is that a mandate secured at a general election is considered to be the best possible, strongest possible mandate.

I'm not sure where you are getting that from. Its not written down. Logically, a direct mandate from the people is stronger than an indirect one through their political representatives.
That's how it works in countries with written constitutions anyway, and international precedent must count for something, if there is doubt.

A second referendum could, in theory, cancel out the first. But holding a second one with a very similar question to the first one would be dishonest. OK we did it, but ignoring that for a minute...
The PM has already ruled it out, saying "Brexit means Brexit". Looking at precedent, it was said of the Scottish referendum that another one could only be held after a generation had passed, or if there were a very substantial change to the situation. Neither applies to the Brexit scenario, not yet anyway.

Peregrinus

recedite wrote: »

They can both be true. Ireland and UK can decide where the border is and how it is manned and physically delineated.
EU decides what tariffs if any will apply to goods crossing that border.

The EU also requires that those tarriffs be effecitvely applied to goods crossing the border, which limits the scope for Ireland to take decisions about how to manage the border. They have to manage it in a way that enables trade flows to be monitored, and tarriffs collected.

Peregrinus

recedite wrote: »

The monarch can only survive and rule with the permission of the people . . .

Of course. They found that out the hard way in 1649, and again in 1688. It’s not a mistake that British monarchs will make again.

But, as a result of learning that lesson, the constitutional settlement that they arrived at, which hass endured ever since, is that the monarch acts on the advice of ministers, and ministers are accountable to Parliament, and Parliament represents the nation.

(The idea that Parliament is accountable to the nation is actually the last bit of the mechanism to be slotted into place; the UK didn’t have universal adults suffrage until 1928. But Parliament was always understood to represent the nation; its duties were owed to the nation, and not particularly to those citizens who happened to have the vote. That was the theory, anyway.)

recedite wrote: »

Can you provide a link to this decree? I accept that the wording of the referendum did not contain a particular trigger (eg that if x% of the population votes one way then y legislation will be passed). But that is not the same is decreeing that it has no legal effect. There was a very definite question presented, with a definite cause and effect according to which way the vote went.

It’s not the wording of the referendum that matters; it’s the wording of the Act of Parliament which directs that the referendum be held. You can read it in full here. It has much to say about what the question in the referendum will be, and who is entitled to vote, and how the votes are to be counted, but what it conspicuously omits is anything which would result in the UK leaving the EU, should the referendum go that way. There’s no statement that, in the event of a “leave” vote, notice of withdrawal must be served, or is taken to be served, under Art 50, or that the European Communities Act is repealed, or anything of the kind. And yet these are things which must be done if, legally, the UK is to leave the EU.

recedite wrote: »

I'm not sure where you are getting that from. Its not written down. Logically, a direct mandate from the people is stronger than an indirect one through their political representatives.

You'd think so, wouldn't you? But nobody ever claimed that the British constitution was "logical", In the Westminster tradition, a direct mandate from the people is not the trump suit. The doctrine of parliamentary supremacy is central to the UK constitution. The strongest mandate is the one given to Parliament because Parliament has the legal power and the political authority to take the UK out of the EU. The Referendum Commission, which declares the results of referenda, has no such power or authority.

recedite wrote: »

That's how it works in countries with written constitutions anyway, and international precedent must count for something, if there is doubt.

New Zealand has a written constitution, but the NZ government and parliament regularly ignore the results of referenda that they don’t like. Western Australia has a written constitution; a referendum in Western Autralia to secede from the Comonwealth of Australia was initially accepted by the WA government, but later they changed their mind and decided it wasn’t a good idea. The separation never happened, and there was no second referendum. Australian has a written constitution; we’re about to have an equal marriage referendum imposed on us in Australia, but the government is adamant that the result will not bind the Parliament.

As you say, international precedents count for something, and the international precedents for Westminster-style parliamentary democracies show that it’s common for referendum results not to bind the parliament. Even if Ireland, it’s only referenda to amend the Constitution which are self-executing. We don’t hold referenda for other reasons but, if we did, it would be up to the Oireachtas, when legislating to conduct a referendum, to provide for whether the referendum result was to be self-executing, or merely advisory.

recedite wrote: »

A second referendum could, in theory, cancel out the first. But holding a second one with a very similar question to the first one would be dishonest. OK we did it, but ignoring that for a minute...
The PM has already ruled it out, saying "Brexit means Brexit". Looking at precedent, it was said of the Scottish referendum that another one could only be held after a generation had passed, or if there were a very substantial change to the situation. Neither applies to the Brexit scenario, not yet anyway.

I agree with you this far; the UK government is not going to hold a second referendum in the near term. (And, if they did, I think “Leave” would win by a bigger margin than the first time.) And I think if they went for an early general election on a platform of “Let’s stay after all!” they would lose.

But join me in a fanciful and improbably “what if” scenario. The UK formally serves Art. 50 notice in, let’s say, early 2017. The negotiations are tough, and difficult, and get extended from 2 years to 3. In early 2020, the best terms available to the UK turn out to bear little relationship to the rosy scenario that was painted by the Brexit campaign. Worse, as events unfold, it become apparent that the more pessimistic predictions about the economic impact of Brexit were, if anything, not pessimistic enough. There’s a flight of capital from the UK and, if immigration pressures are reduced, it’s only because nobody wants to come to a country with skyrocketing unemployment and collapsing public services. The Brexiters' hopes of salvation from a sweet trade deal across the Great Puddle are dashed when President Trump repudiates all trade deals, and announces that he wants to dig a deep trench across the middle of the Atlantic to stop those loser Brits from swarming into America until he can figure out what’s going on. Which, given that we are talking about Donald here, nobody expects to happen any time soon.

Labour, in the meantime, has ditched Corbyn and has decided to make a serious pitch for the middle ground of UK politics, while at the same time distinguishing themselves from the Tories, whose odds have been very much on the nose ever since an unfortunate incident at the Foreign Office involving Boris Johnson, a large amount of cocaine and a goat. (The goat made a full recovery, I’m happy to say, but Boris will never be the same again.) And one way of putting distance between themselves and the Tories is pointing to the train wreck that Brexit is rapidly becoming.

Never mind how realistic all this is; just run with the idea that in the medium term the combination of a change of sentiment and a change of external conditions could make Brexit look like not such a crash-hot idea after all.

If an election is fought in this climate, and one party campaigns on a platform of staying in, and wins a majority, then they have a mandate to stay in. They don’t need, legally or politically, to hold another referendum, and I confidently predict that in such a situation they would not. The only circumstance in which they would have to hold another referendum would be if they won on a platform of holding another referendum. But if they win on a platform of remaining in, then they have a mandate to remain in.

MrPudding

BoatMad wrote: »

not really , it was primarily that Cromwell had a well organised army, the public was not really consulted in anything in those days

Are you sure? I am sure he acted because he hit 1 million likes on his facebook page and #offwithhishead trended strongly.

MrP

recedite

Peregrinus wrote: »

New Zealand has a written constitution, but the NZ government and parliament regularly ignore the results of referenda that they don’t like. Western Australia has a written constitution; a referendum in Western Autralia to secede from the Comonwealth of Australia was initially accepted by the WA government, but later they changed their mind and decided it wasn’t a good idea.

In NZ they have two types of referendum AFAIK. The binding type, which has "enabling legislation" arranged by parliament beforehand. And the "citizens initiative" type, which everybody knows is only advisory, and not binding.
Neither of these corresponds exactly to the Brexit referendum. In Brexit, the people voted on the understanding that the result would be respected.
In that scenario, the enabling legislation "should" be passed afterwards. But I accept your point, there is the possibility of doubt there, hence a potential loophole. But it would not be an honest course of action to pursue it.

The WA secession referendum in 1933 ended up with a delegation going to London and appealing to the UK Parliament for secession, as it was the UK parliament that had originally created the Australian federation. Westminster denied the request. So it was not a case of the WA govt. changing their minds, or failing to respect a referendum of its people.
It was analagous to the recent Catalonia referendum on self rule which, as expected, was not respected by the Madrid govt.

Peregrinus wrote: »

But join me in a fanciful and improbably “what if” scenario. ...
the combination of a change of sentiment and a change of external conditions could make Brexit look like not such a crash-hot idea after all.

If an election is fought in this climate, and one party campaigns on a platform of staying in, and wins a majority, then they have a mandate to stay in. They don’t need, legally or politically, to hold another referendum, and I confidently predict that in such a situation they would not.

I think in that situation, the "stay-in" would campaign on the promise to hold a second referendum. If the party won, then the combination of that electoral mandate and the "changed circumstances" would give legitimacy to the second referendum. If the doomsday scenario had unfolded as you described (highly unlikely) then the second referendum would easily garner enough support to overturn the first. Everybody would be happy then, except perhaps Boris and his goat

MrPudding

recedite wrote: »

In NZ they have two types of referendum AFAIK. The binding type, which has "enabling legislation" arranged by parliament beforehand. And the "citizens initiative" type, which everybody knows is only advisory, and not binding.
Neither of these corresponds exactly to the Brexit referendum. In Brexit, the people voted on the understanding that the result would be respected.
In that scenario, the enabling legislation "should" be passed afterwards. But I accept your point, there is the possibility of doubt there, hence a potential loophole. But it would not be an honest course of action to pursue it.

The WA secession referendum in 1933 ended up with a delegation going to London and appealing to the UK Parliament for secession, as it was the UK parliament that had originally created the Australian federation. Westminster denied the request. So it was not a case of the WA govt. changing their minds, or failing to respect a referendum of its people.
It was analagous to the recent Catalonia referendum on self rule which, as expected, was not respected by the Madrid govt.

I think in that situation, the "stay-in" would campaign on the promise to hold a second referendum. If the party won, then the combination of that electoral mandate and the "changed circumstances" would give legitimacy to the second referendum. If the doomsday scenario had unfolded as you described (highly unlikely) then the second referendum would easily garner enough support to overturn the first. Everybody would be happy then, except perhaps Boris and his goat

I would hope that they would not campaign on promise of a second referendum. They should vote in a promise of staying in, and if they win then stay in. A second referendum in those circumstances would be unnecessary.

MrP

recedite

MrPudding wrote: »

A second referendum in those circumstances would be unnecessary.

Apples and oranges. IMO a second referendum would be needed to legitimately reverse the first.

Peregrinus

recedite wrote: »

Apples and oranges. IMO a second referendum would be needed to legitimately reverse the first.

It might be politically wise; perhaps even politically necessary.

But legally, constitutionally? No, it's not necessary. Parliament could[.i] have legislated that the outcome of the first referendum would be binding, and could only be reversed by a second referendum. But they didn't, so it isn't.

And, FWIW, I agree with Mr Pudding. A party which campaigns on a platform of reversing the Brexit decision without a second referendum, and wins a majority, has a mandate to reverse the Brexit decision without a second referendum.

The question is whether they would win, of course. But if public opinion had shifted sufficiently strongly in that direction, they would.

swampgas

It's a curious side-effect of the first past the post system that an election could be won by a party campaigning to reverse the Brexit decision, but with a lot less than 50% of the vote. So there's a 'democratic deficit' argument to be made that a referendum has more weight and that a second referendum would be needed to confirm that the people have genuinely changed position, even if an election were won on that platform.

On top of that elections are rarely about one single issue, so just because a party wins an election saying they will reverse Brexit doesn't mean (necessarily) that that's the only reason people voted for them. So even with a landslide vote it could still be perceived to lack the democratic authority of a referendum.

Peregrinus

You'd think so, wouldn't you? But the British seem to be perfectly comfortable with the "democratic deficit" built into their system. It's commonly the case that a UK party takes power, forming a single-party government, despite the fact that they enjoy only minority support, and a clear majority of the voters have actually voted against them. But in the Westminster scheme of things, that's not considered to qualify or compromise their mandate.

So, yeah, to us it seems odd that a policy endorsed in a referendum can be changed without a further referendum. But that perception arises out of our constitutional foundation, which is that all authority comes (under God ) from the people. The people have enacted the Constitution and only the people can amend it. Subject to the limits laid down by the Constitution, the people have vested legislative power in the Oireachtas, and the Oireachtas can enact any law not repugnant to the Constitution. The Oireachtas never consults the people in a referendum about what laws it should pass; the people have conferred legislative power on the Oireachtas, and the Oireachtas ducking the issue and saying "we'll let the people decide" would simply be refusing to do the job it was elected to do. We only get consulted on amendments to the Constitution because we have reserved that power to ourselves; the Oireachtas cannot amend it.

By contrast, the foundation of the British constitution is not the claim that all authority comes from the people; it's the supremacy of Parliament. Parliament can do absolutely anything, up to and including amending the constitution. Furthermore (although this is a point for the geeky constitutional scholars) Parliament cannot limit its own authority. If Parliament were to pass a law saying "we won't leave [or re-enter] the EU without a referendum", a later Parliament could pass another law repealing the first law, and then leave [or re-enter] the EU without a referendum. And if the party in power had campaigned in a general election on a platform of doing precisely that, and had won, they they would have a mandate to do that.

Parliament in the UK never has to hold a referendum. If it does hold a referendum, it does so because it wants to, and if it doesn't want to, it won't.

We all know, I think, that the Brexit referendum was not held in order to secure an especially strong mandate on this one policy issue; it was held for the political convenience of the Prime Minister, because he couldn't get a consensus on this issue in his own party. In other words, the Tories sought a mandate in a referendum because they didn't have their act sufficiently together to seek a mandate in the usual way, through a general election. And it has been such an unhappy experience for them that it will be a while before any UK party attempts the same again.

robindch

Peregrinus wrote: »

We all know, I think, that the Brexit referendum was not held in order to secure an especially strong mandate on this one policy issue; it was held for the political convenience of the Prime Minister, because he couldn't get a consensus on this issue in his own party. In other words, the Tories sought a mandate in a referendum because they didn't have their act sufficiently together to seek a mandate in the usual way, through a general election. And it has been such an unhappy experience for them that it will be a while before any UK party attempts the same again.

It was also held because Cameron was afraid that UKIP would leach significant support from the Tories on the back of UKIP's promise to hold a similar referendum, so Cameron promised one as well and, unfortunately for the UK, unexpectedly won the election which he was expected to lose.

As for "democratic deficit", well, a democracy requires a well-informed, unencumbered electorate able to make a free choice based upon careful, honest information concerning some issue - one need hardly point out that not a single one of those necessary conditions was true during the farcical brexit campaign.

Meanwhile, back in Downing Street, May's decision to appoint the leaders of the Brexit campaign to positions of power seems to have lead to a simmering turf war so directly that one can only wonder if this was her intent:

http://www.bbc.com/news/uk-politics-37082402