“What part of ‘Leave’ don’t you understand?”

gina-miller-on-andrew-marr

When Nigel Farage asked this of Gina Miller on the Andrew Marr show on Sunday she was far too polite and politically unseasoned to respond in kind to this patronising and arrogant question.

Well, Mr Farage, I would like to ask you what part of ‘Advisory’, ‘Parliamentary Democracy’ and ‘Independent Judiciary’, don’t you understand. Moreover I think your question should be directed more at the people who you persuaded to vote Leave in the referendum.

To the old man in the queue in front of me, the day before the referendum who said he “was voting leave because we were going to get a new hospital every week”. Don’t you understand that you were being lied to?  In fact there is probably going to be less money for the NHS as the economy ails.

To the pensioners: the government is already making noises about abandoning the triple lock in favour of linking pensions to earning only.  With inflation predicted at 2.7% next year and rising in following years. What you  don’t understand is that your pension could be worth 10% less in real terms in four years time.

To the people who feel that they have been left behind: what I fear you don’t understand is that the path we are on is only going to make things worse for you.

To the young, who will increasingly have to look abroad for recognition of their talents: I hope it’s is not too late.

I could go on to the effect on the car and other heavy industries, the city, home owners and all the other things that were characterised as ‘Project Fear’. I fear that we are going to find out that those were actually honest warnings from people who have more insight into these things than Mr Farage.

I believe we, as a country, are in the process of doing great self harm and may even see the breakup of the UK.  The general public can be forgiven for making a mistake based on the most dismal of campaigning in the referendum.  I will not however, forgive our politicians for persisting in this folly. We really need to wake up and smell the coffee before it is too late.

So finally, the only thing I would ask Mr Farage is: What part of (please) ‘Leave’ don’t you understand?

P.S.  Gina Miller, thank you. You are a fine, courageous woman and I hope you get the recognition you deserve one day.

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51 Comments

  • William Ross 10th Nov '16 - 1:49pm

    You mistake the meaning of “Leave” for why people voted for “Leave”. The meaning of leaving a club is not the same reason as why someone leaves a club. You might decide to leave because you do not like the cuisine, the décor, the members or the cost. But ” leaving” means that you are no longer bound by the rules of the club and no longer pay subscriptions.

    So therefore it is simple. We are out.

    You cannot seriously propose to defy the democratic vote of 17.5 million Britons on an “advisory” technicality. By all means vote against Article 50. Your eight votes will be drowned in a contrary majority. Whenever the election is, people will remember that you are not “democratic”.

  • “, I would like to ask you what part of ‘Advisory’, ‘Parliamentary Democracy’ and ‘Independent Judiciary’, don’t you understand. Moreover I think your question should be directed more at the people who you persuaded to vote Leave in the referendum.”

    Please provide proof that the referendum was only advisory. Please quote where in the 2015 European Referendum Act, where it states the referendum was only advisory. Please link to a single piece of law that states all referendums are advisory unless stated otherwise in the act.
    We live in a representative Democracy, however, on this issue, Parliament decided to put the decision and power back in to hands of the public and put this out to plebiscite.
    We had the referendum and the people decided.
    That is Democracy.
    As for the Triple Lock Pension Benefits. It is right that this is looked at.
    During the Coalition years, this party played it’s part in committing to reducing the welfare bill by targeting, unemployed, sick and in work poor.
    However, instead of savings the Welfare bill has soared and this is mainly due to pension related benefits. Pensioners have benefited at the cost of the unemployed, low paid and disabled. How is that right?? Liberal Democrats have to accept their part of responsibility for allowing this to happen under their watch. Even the UN has condemned the coalition years for the cuts to disabled as they violate human rights.

    People really need to stop being condescending with regards to leave voters. Most knew exactly what they were voting for, we are quite capable of weighing up the facts, opinions, resources and coming to an informed/ personal decision on what we believe is right for ourselves, our families and fellow citizens and future generations.
    You may not agree with these decisions personally, but do not be so condescending and patronising as though your opinion is worth more and somehow more superior than those you disagree with.

  • William Ross 10th Nov ’16 – 1:49pm…………You cannot seriously propose to defy the democratic vote of 17.5 million Britons on an “advisory” technicality. By all means vote against Article 50. Your eight votes will be drowned in a contrary majority. Whenever the election is, people will remember that you are not “democratic”………..

    Whereas the 16.8 million who voted remain should just shut up? If I buy something and find it was mis-sold (unfit for purpose) I have every right to demand that the contract be dissolved….

  • Laurence Cox 10th Nov '16 - 2:11pm

    The comment in the article about inflation and pensions is just cherry-picking. Pensions were linked to inflation from 1980 onwards and this led to a major increase in pensioner poverty, because for most of the time from then until now average earnings outstripped inflation. It was the 1999 increase in pensions by 75p/week that led Gordon Brown to introduce the £100 winter fuel allowance and the free TV licences for over 75s as sweeteners. At the same time the Minimum Income Guarantee (MIG) made small occupational pensions worthless because pension benefits were withdrawn as additional pension income increased.

    My Union (Prospect) looked into this and found that while the Basic State pension for 2015/16 was £115.95 per week, had it been indexed in line with average earnings since 1980, it would now be over £180 per week. The new flat-rate State Pension is £155.65 for those retiring after April 2016 but that doesn’t help anyone who retired earlier and remains on a pension based on the old rules.

  • William Ross 10th Nov '16 - 2:18pm

    Expats

    There you go again! In a binary vote we ignore the majority because the minority thinks they were wrong! I wish I could have made that argument after the Scottish referendum in 2014. We lost in 2014. You lost in 2016. It`s called democracy. The electorate voted for a clear propositon Leave the EU.

    Defy them at your peril. But there are so few of you left anyway!

  • Paddy said it all:

    ‘I will forgive no one who does not respect the sovereign voice of the British people once it has spoken. whether it is a majority of 1% or 20% when the British people have spoken you do what they command.Either you believe in democracy or you don’t’

  • Yes, technically the referendum was ‘advisory’ – and the government, having told everyone in the £10 million leaflet that they would do as the people decided, took the advice – so what’s the problem?

  • “This is your decision. The Government will implement what you decide.”

    That was how it was worded in the Government Pamphlet. There was no room for doubt, it gave all the reasons why the government thought it was a mistake to leave, but the majority still voted leave. I would have loved it if remain had won, but we didn’t and now it’s time to get on with backing the government in the negotiations.

  • “But there are so few of you left anyway!”

    The majority are now in favour of remain. The majority is likely to get bigger over the next year or two when the economic and administrative burden of ‘Leave’ starts to become apparent.

    At the time of the referendum it was widely reported that it wasn’t binding. That’s the law of the land. You might as well argue that the earth is flat than to try and insist that it was legally binding.

    The ‘idea’ that ‘Leave’ is a simple choice to be made by simply not paying any more and not abiding by the rules, like it is a membership of a golf-club that we’re dropping, is reductivist, simplistic, ignorant nonsense.

    To remain a member of the single market, we will have to pay. To remain a member of scientific collaborations, we will have to pay. That is what other countries outside of the EU have to do. If we go down that route then we will be financially worse off than before and have less control of EU decision making. If we choose not to pay then we will end up paying more in tariffs and have a poorer economic outlook. Either way, we lose. For every ‘rule’ we choose that’s different to the EU, we will end up paying higher tariffs if those rules were, for example, to reduce the environmental costs for British agriculture compared with EU agriculture.

    The big, bad, nasty EU will still exist when we’ve left and they will still have a profound influence over this country whether we’re in it or not.

  • @malc

    The government only has the power to implement whatever it can get through Parliament. Mr Cameron’s promise to implement the result of the referendum was no more binding than Mr Clegg’s promise not to increase tuition fees.

  • William Ross 10th Nov ’16 – 2:18pm…….Expats……….There you go again! In a binary vote we ignore the majority because the minority thinks they were wrong! I wish I could have made that argument after the Scottish referendum in 2014. We lost in 2014. You lost in 2016. It`s called democracy. The electorate voted for a clear propositon Leave the EU. Defy them at your peril. But there are so few of you left anyway!….

    Please read ‘that wot I rote’…I accept that we will leave but I do not accept that, as a ‘Remainer’ I should just shut up and ‘hope for the best’…. Exaggerated claims were made by both sides but concrete promises were made by the ;Leave’ campaign that were reneged on within hours…I feel completely justified in complaining about how many were ‘conned’ into getting the majority ‘OUT’ vote.
    ‘If and when’ it becomes obvious that the country will be worse off in the long term, by virtue of having left the EU, I will do everything possible to reverse the decision…

  • William Ross 10th Nov '16 - 2:49pm

    Angry

    What fluctuating polls show is irrelevant. The people voted on 23 June. Their decision is final. Leaving a club is exactly the right analogy. There is no possibility that we will remain in the Single Market. That would mean being an “out-house” member of the Club.

    You could really do with taking a leaf out of Hillary`s book. At least she had the good grace to acknowledge her crushing defeat.

    Snap out of it! I did that on 19 September 2014.

  • @ matt
    “Please provide proof that the referendum was only advisory.”

    An act of Parliament does what it states its does. The European Union Referendum Act has no provisions for what will happen if there was a Yes vote. The 1978 Scotland Act set up a Scottish Assembly which would become law if 40% of the electorate and a majority voted Yes, if there was a No vote the act had a provision for repeal (see https://en.wikipedia.org/wiki/Scotland_Act_1978). The Parliamentary Voting System and Constituencies Act 2011 set out that if there was a Yes vote an order in council will bring AV into force and if No an order in council will repeal the AV provisions (Part 1 section 8 – http://legislation.data.gov.uk/ukpga/2011/1/data.htm?wrap=true). Therefore unless the act of Parliament clearly states what will happen depending on the result of the referendum, any referendum included in an act is “only advisory” because it does not legislate.

    When the government includes an “advisory” referendum in an act of Parliament they would normally commit that government to bring forward an act of Parliament to implement the result of the referendum, in the same way that they are committed to bring forward acts of Parliament to legislate for the promises they made in their manifesto.

    If an MP voted against there being a referendum then they have no moral duty to be bound by the result. If a government fails to legislate their promises the electorate normally punishes the government not the opposition for opposing it. Therefore it would follow that if the government failed to get us out the EU the electorate should vote for another political party which will do so – that is how our democracy works.

  • @Chris Phillips

    Full Fact. org is not legislation and it does not point to any. It is merely an opinion
    As the site says regarding the law
    “There’s no one source that can prove this statement true”

    Because it was not written into the Referendum Act. It is open to legislative intent. What was the Governments intention when they legislated for the referendum?
    To come to an opinion the courts would have to decide based on other information provided by the government. I.e statements made by the Government and the Foreign Secretary on the floor of the house. Information sent to households regarding the referendum.
    Whether this happens in the supreme court remains to be seen.

    But to try and argue that all referendums by law are only advisory is wrong, because quite simply, there is no law saying so. Fact

  • @William Ross

    “What fluctuating polls show is irrelevant.”

    Exactly, and the June 2016 opinion poll is now out of date.

  • @Michael BG

    We have had this discussion on previous threads. Were not going to agree 🙂

    The point I am making is that. There is no law that says ALL referendums are only ever advisory as some people will have us believe.
    If an Act does not say in it, if a referendum was advisory or Binary, then it is open to interpretation by legislative intent.

    The things is, there are so many remainers who are so desperate to see the results of this referendum ignored, they are trying to make up laws that simply do not exist to support their arguments.

  • ethicsgradient 10th Nov '16 - 3:15pm

    @AngrySteve

    where is there any evidence that there is now a majority that would support/vote to remain?

    I’ve not seen any. In fact the ashcroft polls afterwards shown that the idea of breget did not exist. Those who vote leave were comfortable with the decision.

    Can can certainly say that if the public were forced to vote again, such would be the anger at the original decision not be respected, that even more people would vote to leave than before. This would (in my opinion) even outweigh those who say the regretted not voting as they thought remain would win.

    I would be happy to put £100 bet on the result to leave being the same, if there was a 2nd referendum

  • @AngrySteve

    “Exactly, and the June 2016 opinion poll is now out of date.”

    But June 2016 was not a poll. It was a vote. People were not asked to give an opinion, they were asked to make a choice. There is a vast difference.
    To try and paint the seriousness of a democratic referendum result as being a non-significant meaningless opinion poll is a kick in the teeth to democracy.
    If that’s the kind of country and democracy you want to live in, then god help us all

  • ethicsgradient 10th Nov '16 - 3:30pm

    @AngrySteve
    @matt

    You make a very good point Matt. I dislike this remain revisionist sentiment trying to paint the referendum vote as ‘a snapshot/one opinion poll taken in June’

    Of course it wasn’t. It was a fully validated vote which had had 3 months of official campaigns and in truth 6 months of campaigns putting both sides of whether to stay or to leave.

    The was lies and exaggerations on both sides. The lies and exaggerations we refuted and the public was in full access of the information.

    With that in mind the public voted 48-52% to leave on a 72% turn out. 33.5 million out of a 46.5 million franchise.

    There is simply no comparison or parallel to an opinion poll (which selects maybe 1000 representatives to sample)

  • Sue Sutherland 10th Nov '16 - 3:34pm

    I think we Remainers are angry with the wrong people. We should be angry with Leave leaders who lied, we should be angry with owners of the press who campaigned against the EU over many years because, essentially, they would rather be big fish in a small sea than small fish in a large one, we should be angry with economists, financiers and bankers who did not use their expertise to predict the 2008 crash, thereby giving all experts a bad name, and we should be angry with everyone, including ourselves, that we did not, over the years, defend the EU for what it does well and criticise it for its faults.
    The people we should not be angry with are those millions who voted Leave in good faith because they wanted a better life, so let’s stop the name calling and get on with trying to find the best deal, talking to our EU friends so that they know there are millions of people who value the EU and, perhaps even more importantly, come up with policies to improve people’s lives so that sometime down the line we can all make a realistic decision about rejoining.

  • ethicsgradient 10th Nov '16 - 3:49pm

    @Sue Sutherland

    What a good post and one I totally agree with.

    I voted leave. I agree with your sentiment of getting on with finding the best deal for both the UK and the EU mutually.

  • William Ross 10th Nov '16 - 4:29pm

    Well said Sue Sutherland.

    I just stepped out for a business meeting and I was utterly amazed to see Angry`s statement:” Exactly, and the June 2016 opinion poll is now out of date” The June 2016 vote is the sovereign will of the British people. If you disregard the Brexit vote because the poor deluded people of Sunderland were conned then you are a rank elitist who does not deserve the name ” Democrat”! Not even Hillary would do that!

  • this is tedious, rather like Question Time will be again tonight, no doubt.
    the exiters really have proven to be bad winners (fleeing responsibility for implementing the exit they wanted, childishly calling those who don’t agree with them stupid names, pantimg red-facedly about delays, and ‘talking the uk down’, and huffing and puffing when british law courts make decisions that effect britain!) . They should show more grace, hector less. and appreciate that nearly as many folk went to the ballot to disagree with them as agreed. Anyone would think they had something to hide, or something to fear – like a second referendum, based on facts?
    and meanwhile, the guys that are raising funds to prosecute pro-brexit leaders for lying to the public deserve all of our thanks and support, surely?

  • matt,

    The Bill of Rights 1688 says, explicitly, that using “regal authority” to execute laws without the Consent of Parliament is illegal.

    As there has never been in British law any other consent of legislating except through the Crown-in-Parliament, the default status is that all popular plebiscites are, legally, advisory. However, Parliament may consent to the Crown exercising the Royal Prerogative of legislating (through Order-in-Council) in respect to the outcome. Parliament chose not to do that in this case.

  • Tony Dawson 10th Nov '16 - 6:19pm

    @William Ross: :

    “There is no possibility that we will remain in the Single Market. ”

    Aha. This is the ‘Norway does not really exist’ argument. No one can afjord to listen to you! 🙂 Actually, quite a number of proponents of the ‘Leave’ case, especially early on, put out that we could stay in the single market. The Tory MP who has just resigned his seat thought this was what would happen and he was far from alone. I will not say such people were in the majority, but even if they were only one in ten of the ‘Leavers’ that would mean a majority of referendum voters would want to stay in the single market t that time.

    As for the second referendum issue, if people think, after actually seeing what Leave really means (rather than Boris propaganda) that it is a pointless ruse, they will vote massively against having any further change, so what’s the worry?

  • Matt

    This may help you in terms of why the referendum was advisory.

    European Union Referendum Bill 2015-16
    ‘This Bill requires a referendum to be held on the question of the UK’s continued membership of the European Union (EU) before the end of 2017. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution’.
    House of Commons briefing paper 07212

  • This weeks homework : “Brexit will collapse under the weight of its own internal contradictions. Discuss” 1500 words by Tuesday, please !

  • @Frank.

    Thanks I have read it.

    But that does not change a thing. That was just a briefing paper to MP’s.

    You also need to take into consideration from a legal point of view what the foreign secretary said on the floor of the house when opening the debates and he said that parliament would let the people decide. There is also the literature that was sent to every household https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/515068/why-the-government-believes-that-voting-to-remain-in-the-european-union-is-the-best-decision-for-the-uk.pdf
    that said
    “The referendum on Thursday, 23rd June is your chance to
    decide if we should remain in or leave the European Union.
    “”This is your decision. The Government will implement what you decide””

    So because parliament and the government said and produced literature with contradictory things in regards to this referendum, the law is open to legislative intent.

  • @Tony Dawson
    “Actually, quite a number of proponents of the ‘Leave’ case, especially early on, put out that we could stay in the single market.”
    Is that what people said? That’s not my recollection or understanding. My understanding was that they said we would be able to strike a deal that allowed us “access” to the single market, which is of course entirely different to staying in the single market.

  • @William Ross: “There is no possibility that we will remain in the Single Market. ”

    I suggest you do some reading, it may surprise you that the UK is a member of “EU” and “The Single Market”, through distinct treaties signed by the UK government as a sovereign nation. Legal experts are saying the UK can leave the EU yet remain in the Single Market aka the EEA! This is because our initial membership and continued membership of the EEA does not arise from an EU treaty, but totally a separate treaty between the UK and the EEA, and hence is not subject to para 3 of Article 50.

    Which, given the clarity of the question on the referendum paper:
    “Should the United Kingdom remain a member of the European Union or leave the European Union?”
    I think you can agree, withdrawal from the Single Market was not an option being offered! 🙂

    This shouldn’t come as a surprise, given Farage has always recognised the validity of the 1975 referendum result and thus the UK’s membership of the single market, his issue was with the government’s failure to gain the consent of the UK electorate to join the EU, when the EEC was effectively transformed into the EEA and EU, with former members of the EEC becoming founding members of both clubs…

  • @ Sarah Noble

    You are incorrect, there is no UK law that states plebiscites and referendum are advisory unless stated otherwise. It is only logic that makes this the case.

    @ matt

    I agree with you that there is no law that states all referendums are only advisory. However the wording of the act is the guide to whether a referendum is “advisory” or will bring into force legislation. This is why I gave two examples where the act stated what would happen if there was a Yes or No vote. These were not advisory referendum because the result led to two different actions and these acts set out how the law would be changed if there was a Yes vote. You can’t argue legislative intent, because the legislative effect has to be set out and intent is only used to interpret the wording of the act.

    To argue that silence in an act sets out how the laws of the UK changed as a result of a referendum makes no sense. If the act does not state how the law is changed by a “leave” vote then the law is not changed directly by that vote.

    It seems you do not recognise that to leave the EU, UK law has to change. I don’t understand how you can make a logical case that leaving the EU does not need us to change UK law via Parliament.

  • @Michael BG
    “You can’t argue legislative intent, because the legislative effect has to be set out and intent is only used to interpret the wording of the act.”
    I am not sure that is entirely correct
    “The judiciary may attempt to assess legislative intent where legislation is ambiguous, or does not appear to directly or adequately address a particular issue, or when there appears to have been a legislative drafting error.”
    To do this, they can take into consideration

    The text of the bill as proposed to the legislative body,
    Amendments to the bill that were proposed and accepted or rejected,
    The record of hearings on the topic,
    Legislative records or journals
    Speeches and floor debate made prior to the vote on the bill.

    So it seems to me as i have said in numerous postings on this issue, we can look to speeches made by the foreign secretary to the house of commons in debates opening up the bill and to literature that was sent out to every household across the country regarding the referendum.

    “It seems you do not recognise that to leave the EU, UK law has to change. I don’t understand how you can make a logical case that leaving the EU does not need us to change UK law via Parliament.”
    I recognise that the law would have to change “eventually” on completion of the negotiations. However, the law does not have to change immediately. Invoking article 50 will not immediately remove peoples rights and protections and changes to the law.

    Yes I agree that when the time comes to actually leave the EU it will require parliament to change the law in terms of the European Communities act etc. I still think however there will be ways to simplify this in terms of legislating that all current European laws, standards and legislation will remain UK law until such a time as parliament has had the opportunity to repeal, amended and introduce new laws.

    The crux of it is, No Laws will change with the “immediate effect” of invoking article 50, so I don’t see why it needs as act of parliament.
    But I am no lawyer and I can be totally wrong lol, One thing I do know though is, that there are certain people in the reamin camp who are trying to invent laws that simply do not exist in order to support their arguments and trying to derail brexit and the people’s democratic choice, which is frustrating.

  • For goodness sake people.
    1. We are going to leave
    2. I didn’t want us to leave, but we are – that’s democracy for you – we all now need to move on. It’s done, the parrot is not sleeping, the parrot is dead.
    3. After what’s just happened in the US, this is now definitely a done deal – we may even get a good trade deal out of the fall out. Lets fix what we can and fight the battles we can now win.
    4.Parties of all colours are accused of not listening to the people. If we want to stand out again and be respected, we must listen, accept and move on. Don’t forget the third of Lib Dems who voted leave – those who shout loudest etc……………
    5. We must stop this remain/leave labelling of citizens. It’s petty, childish and will inspire no-one. We are the party of equality – so lets show it.
    6. If people really want to flog this dead horse further, they may very well force a general election – be careful what you wish for – yes, things could be worse, a lot worse!
    7. Pragmatism is everything now. There may be another chance in the future. The only way that will happen is if public opinion turns markedly against going alone. That isn’t going to happen anytime soon.
    8. The best we can now do is LISTEN to the people, accept democracy and stop all this infighting. I don’t like it either, but like Hilary, we must be gracious, the argument for now is lost. What part of lost do people not understand?
    9. No-one likes a bad loser. That is no way to gain the respect of anyone. It is what it is – deal with it 🙂

  • @matt

    I’ve been reading this with interest.

    The briefing document. You seem to have dismissed this in a one liner. It is not ‘just a briefing paper’, but a fundamental document designed to present to Parliament the Executive’s purpose in introducing the Bill. It is the single most conclusive statement in all the documents, in the Government’s own words; and cannot be arbitrarily chucked aside.

    And the significance is that it represents to Parliament the Government’s position, and the expected action that would arise from the result of the referendum.

    Yes of course subsequent debate would be significant, but where in the debate does the Government represent the completely *opposite* stance that they have taken since the result? Can you point to the Parliamentary record that rebuts it?

    As regards the literature sent to voters, this is irrelevant as it was sent *after* the Bill became law, and could not have influenced Parliament in any way.

  • @ matt

    That quote seems to be from Wikipedia (https://en.wikipedia.org/wiki/Legislative_intent) which seems to be US based – “constitutional determinations (Would Congress still have passed certain sections of a statute had it known about the constitutional invalidity of the other portions of the statute?)”.

    However any court just using the Wikipedia system would need to consider the House of Common briefing paper. We can both recognise that untruths were told during the referendum campaign. It is possible that some were told in Parliament when the bill was discussed. Therefore using just the Wikipedia system the evidence is not just on your side it is much more balanced.

    However precedent is important here. There are clear examples of acts of Parliament which have included “advisory” referendums and “legislative” referendums. And I have pointed out the differences. In the UK courts I am sure that a decision would be based on precedent rather than a speech made by the foreign secretary that was contrary to the House of Commons briefing paper –the purpose of which is to ensure MPs understand what an act does. Not that anyone is arguing in a UK court that the referendum was binding (or “legislative).

    The High Court has ruled that once article 50 is triggered there is nothing Parliament can do to stop UK law changing and this is why the executive can’t use crown prerogative to trigger it. If the European Union Referendum Act had included a list of all the parts of the acts of Parliament which would be repealed when we leave the EU, it would have been possible to give the executive the power to trigger article 50 in that act and so make the referendum “legislative”.

    (I hope you are not including me among those people who you think are inventing laws?)

  • @Michael BG

    I will respond to your post more thoroughly tomorrow as i appreciate the great lengths and courteous manor in which we have been engaging in together.
    I just wanted to quickly in the mean time assure you that in regards to your final point “I hope you are not including me among those people who you think are inventing laws?)”
    No absolutely not, i do not include you amongst those people.
    I feel you have been balanced and fair and just like me trying to your best to interpret the rules and laws that are set out, not inventing new ones like some other’s to further there arguments.
    I will pick this up more tomorrow, but for now, thanks and i have enjoyed exploring these issues with you. It even inspires me to try and learn more and research more, which can only ever be a good thing 😉

  • @Michael BG

    “However any court just using the Wikipedia system would need to consider the House of Common briefing paper.”
    I absolutely agree with that, that’s why i said in my previous posts that the government has said many different things and produced contradictory literature in relation to this referendum, therefore it would ALL be up for Legislative Intent should either parties wish to pursue this through the courts.

    “However precedent is important here. There are clear examples of acts of Parliament which have included “advisory” referendums and “legislative” referendums. And I have pointed out the differences.”
    Again, I agree, but from what I understood, in previous acts of parliament they have been clear in the terms of reference whether it was going to be advisory or legislative? However, this did not happen in this instance, its all been ambiguous to say the least because of what was promised by the Prime Minister, The Foreign Secretary, in opening debates and statements in the house of commons.

  • I thought ‘democracy’ included respecting any decision voted for by the majority of people in referrenda or elections (even if it is not what you personally wanted). Is this no longer the case?

  • @matt & Michael BG
    Related, but interesting, is comparing the question from the 1975 referendum with the 2016 question.

    1975: “Do you think the UK should stay in the European Community (Common Market)?”
    2016: “Should the United Kingdom remain a member of the European Union or leave the European Union?”

    The most notable difference (after allowing for EU substitution for EC) is the precursor “Do you think” which seems to clarify that the question is asking for an opinion and not
    a judgement.

    Interestingly, it was Enoch Powell who successfully argued that Parliament was sovereign and hence the result could not be binding on Parliament…
    Given that both Theresa May and David Davis are also on record as supporting the sovereignty of Parliament and Parliament’s explicit involvement in approving any exit action, prior to the passing of the 2016 referendum act, establishing “Legislative Intent” is going to be interesting…

  • The other piece of information I missed out, was that in the Electoral Commission’s research on the referendum question, doesn’t give any reason as to why it did not consider for trial a question using the 1975 phrasing.

  • @Pat

    Democracy means representing the views of all people, not just the one group that happens to very slightly outnumber another group at one particular moment in time. The 48% who voted to stay need to be represented in the coming Brexit debate as to how and if it is implemented. Opinion polls show that the majority now favour remaining anyway and that percentage is likely to get higher over the next year or two. They are now the majority. That is how democracy works – it is fluid and has to react to events, debate and changing opinions.

  • @matt

    No it would not. Documents produced after the Act (like the literature sent to voters) was passed clearly cannot have influenced Parliament in passing the Act.

    Whereas a detailed Briefing Document seting out the Government’s position in crystal clear language certainly would be relevant.

    And of course it *has* been placed before the courts already. In the Miller case judgement:

    I think anyone seeking to displace the certainty expressed in the Briefing Document is going to have to produce the document/Parliamentary debate PRIOR to the passing of the Act, in which the Government’s stated purpose was totally reversed.

    Which no one has so far succeeded in producing.

  • @matt

    Sorry, that last post should have extracted your comment at the top:

    “therefore it would ALL be up for Legislative Intent should either parties wish to pursue this through the courts.”

    And here is what the court said in the Miller case:

    “109: Further, the 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only.”

  • @Arnold

    I am not saying that the briefing paper would be irrelevant.

    What I have argued is, in law, the courts can look at many aspects of what Government said / did when coming to rule on legislative intent. That would include statements made to the house by the Government / Foreign Secretary whilst opening up the debates in the House of Commons and putting forward the Governments case.
    In this Instance the Foreign Secretary said on numerous occasions we will let the people decide.

    All this would have to be taken into consideration IF the supreme court was going to rule on legislative intent.

  • Angry Steve ….
    ‘Opinion polls show the majority now favour remaining’ …. really?
    Opinion polls haven’t been very accurate lately!

  • @matt

    Do you really think that a political comment in a debate ‘let the people decide’ is enough to wipe out the written statement of the Executive in a formal document to Parliament, the purpose of which is expressly to set out the background of the Bill, the Executive’s intentions in presenting it, and what they planned to do after the referendum result is received?

    What amazes me is why the press have not taken this up. It is on the face of it an stunning, audacious U-turn.

    I have not seen a single interview that has mentioned it, and yet it is the written expression of the Government’s position.

    No one in the Government has explained how this statement can be reconciled with their subsequent action. No one.

  • Peter Watson 11th Nov '16 - 3:46pm

    @AngrySteve “Opinion polls show that the majority now favour remaining”
    Echoing Pat’s comment, that is what opinion polls were showing before the referendum.

  • @ matt
    “in previous acts of parliament they have been clear in the terms of reference whether it was going to be advisory or legislative”

    I don’t think this is true. As I have already stated where the referendum result is “legislative” the act sets out what will be changed by a particular vote and how it will be implemented. Examples of advisory referendums are the 1975 Common Market referendum and the 1997 Scottish and Welsh referendums. I couldn’t find the text of the Referendum Act 1975, but it has been suggested by Roland that the use of “Do you think …” is evidence it was only advisory.

    I did find the text of Referendums (Scotland and Wales) Act 1997 (http://www.legislation.gov.uk/ukpga/1997/61/contents). There is a lot of detail of the modifications of current law and regulations needed for the referendum, but there is no setting out what happens next or what the assemblies will be like if there is a positive vote. Like the European Union Referendum Act 2015 it is silent on how UK law is changed by either result. This silence meant that to set up the assemblies two new acts were needed – Scotland Act 1998 and Government of Wales Act 1998. Therefore I conclude that the referendum in the European Union Referendum Act 2015 was “advisory” just like the referendum in the Referendums (Scotland and Wales) Act 1997.

    I am not aware that legislative intent has ever been used to repeal a law. We agree that to leave the EU we need to change UK law and agree that this needs an act of Parliament. However there is a convention that Parliament cannot bind a future Parliament. Therefore it would be impossible to have a clause in an act which stated that if “a” happens then the government will present a bill to do “b” and Parliament must pass the bill into law. Section 8 of Part 1 the Parliamentary Voting System and Constituencies Act 2011 does use the word “must” stating that the Minister must make an order bringing in AV if there is a Yes vote or repealing the AV provisions of the act if there is a No vote. I don’t see how the referendum can be binding on MPs and we agree that only MPs can pass an act of Parliament to change UK law to remove us from EU jurisdiction. If your position was that the Crown could change UK law without the consent of Parliament your position would make more sense.

  • You can’t use legislative intent to repeal a law as that would be legislating without the consent of Parliament, which is illegal under the Bill of Rights.

  • a. mockford 19th Nov '16 - 6:52pm

    The referendum was only advisory, but government leaflet did say that the government would implement the decision. Cameron also said he would activate article 50 on 24th June & he would remain as Prime Minister. Thus 2 of the 3 promises have already been broken. The government was not speaking for me when it made these promises.
    Parliament is sovereign. Our elected MPs are accountable for their decisions & we can remove them if we so wish. That is democracy. The electorate did not vote to give Teresa May absolute rule for all time. Indeed she was not elected at all.

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