Friday, 1 July 2016

Is Brexit inevitable?

Despite an occasional urge to blog on topics outside the scope of planning law and practice, I have always resisted such temptations – until now. However, I feel so strongly about the subject on which I am writing today that I will make this a one-off exception to my usual rule.

Few, if any, of the benefits that the charlatans running the Brexit campaign were promising to gullible voters would be forthcoming if we were to leave the EU. The money that would allegedly be ‘clawed back’ from Europe, would be a good deal less in net terms than some of the figures being bandied about by the Brexiteers, and is very unlikely to reach the NHS, or match the EU support currently paid to farmers, or to replace the structural funds currently paid by the EU to deprived areas. As for immigration, even if we were no longer to be in the EU, net in-migration is likely to be every bit as high as it is now, and the promised ‘control’ of our borders may prove to be illusory.

As for red-tape and EU bureaucracy, there is a widespread consensus that nearly all of the rules that have been made in compliance with EU law would in practice have to be retained in our legislation, because the interests that they protect would need to be protected whether or not we were an EU member. Even fishing quotas are unlikely to change. So all those people who rejoiced last Friday that “we’ve got our country back” had been badly misled, both in believing that we had somehow lost our independence in the first place and in thinking that we would in practice have any greater freedom of action as non-members of the EU than we have now.

Like quite a few other people I know, I feel so upset by the European referendum result, and its disastrous consequences for this country, that I cannot accept this outcome, and feel that we must find some way of reversing last Thursday’s decision. I believe strongly in parliamentary democracy. Referenda, on the other hand, do not represent genuine democracy and are far too prone to be swayed by demagoguery, as was all too apparent in the case of last week’s referendum. I do not accept for one moment that it is ‘undemocratic’ to seek to overturn the result of that referendum, so as to ensure our continued full membership of the EU. In the end, it must be parliament that decides. [And in case anyone believes that MPs are there simply to give effect to the wishes of their constituents, I suggest they should re-read Edmund Burke’s classic Address to the Electors of Bristol.]

I was interested to see that there are other lawyers who are thinking on the same lines as me. The first point that should be clearly understood is that the result of last week’s referendum is not binding in any way. It has no legal status, and does not oblige the government or parliament to give effect to its outcome. Secondly, eminent constitutional experts have pointed out that Article 50 of the Lisbon Treaty can only lawfully be invoked by an Act of Parliament. The royal prerogative that ministers exercise on behalf of the Crown, which includes (at least nominally) the power to make treaties and to declare war, does not extend to the formal procedure for leaving the EU, because our membership of the EU is enshrined in our primary legislation, and an amending Act would therefore be required to start the process leading to the UK’s departure from the EU.

The government was very wise not to seek to invoke Article 50 for the time being, and it is clearly very much in our interests to delay doing so for a number of reasons, not least to allow for the possibility of a change of mind that might avoid the Article 50 procedure having to be invoked at all. Michael Zander QC (Emeritus professor of law at the London School of Economics), in a letter to The Times, has suggested that if the mood of the country towards Brexit has changed by the time the government seeks to invoke Article 50 of the Lisbon Treaty, MPs would have “a constitutional right, even a duty”, to refuse to give the will of the people effect. I entirely concur with that view.

[I really don’t propose to permit myself any further digressions from planning law in this blog, and I shall similarly limit discussion in the comments section below. As the French say - Retournons à nos moutons.]



  1. Well said. My sentiments entirely.

  2. Your digression from planning law is most welcome. Couldn't agree more - you give me hope that there may be some way out of this mess

  3. My sentiments too ...

    However if I were a conscientious MP attempting to do my incompetent best I would be very nervous about going against the 'democratic will' without a General Election to back me up.

  4. I rarely comment online not being a fan of the vitriol social media can often attract. However, the sheer seismic stupidity of exiting the EU (and seemingly the single market as the conservative front runners are ignoring strong warnings from the EU on the necessity of freedom of movement) has broken my self enforced silence. That this decision stems from the right wing of a party which allegedly supports free markets and surely understands the role of free movement of labour within this is particularly galling.

    I could write an essay on this but it seems as if 52% of the voting public has committed mass economic suicide whilst condemning the rest of us to share in the pain. It also reveals a worrying resurgence of the ultra right which will now see us turn our back on Europe with worrying social, moral and economic consequences . I could go on.... but to bring this back to planning and democracy, there does now appear to be a need for legislation to reveal the Act that saw us enter Europe but this minor inconvenience appears to be currently ignored. Legal challenge anyone?

    The impact on the growth and housing agendas will be devastating. Working for a small house builder the impacts will be swift. We are already pricing in rising costs of materials as a result of a weakened pound and taking a more cautious approach to revenues... How long before land/property owners decide to withhold land?

  5. Thank you Martin for giving us just a little hope that common sense could actually prevail.

  6. Thanks for the support expressed in these comments (and in emails I have also received). I have just one response of my own to these comments, regarding the willingness of MPs to go against the referendum vote.

    Over the coming weeks and months there may well be a dawning realisation that ‘we got it wrong’. There are already, apparently, quite a few ‘Regrexiteers’ (!) If there is an apparent shift in public opinion, sufficient to throw doubt on the reliability of the referendum result and thereby to undermine its legitimacy, then in my view MPs would be justified in voting against Brexit, notwithstanding the original referendum result.

    I don’t think this would require a second referendum, because as I pointed out in my article, it is ultimately for parliament to decide. This will require time for mature reflection, and for the ramifications if Brexit wee to occur to become manifest. In the meantime, all parties would be wise to support a continuing delay in invoking Article 50, so as to allow that rethink to take place.

  7. Fascinating article .

    Reference was made to a letter to the Editor of the Times from Professor Zander .It would be appreciated if the date the letter appeared in the Times could be supplied.

  8. Unfortunately, I did not keep my copy of this issue of the paper, and I don’t have online access to The Times (which is now behind a paywall). I buy the paper when I want it, but don’t feel disposed to pay for an online subscription.

  9. Shaun Whitfield5 July 2016 at 16:45

    What I don't understand about those brexiteers in the Tory party who think they are 'taking back control' or 'getting their country back' is their relaxed attitude to the ownership of our utilities and infrastructure. They seem quite happy for foreign state-owned companies to own huge chunks of our water, energy and transport industries, but run a mile at the prospect of the British state owning and controlling the same. Look at Arriva, which runs a lot of our buses and trains. A wholly owned subsidiary of Deutches Bahn whose owner and sole shareholder is: the German state. It even means that the Chinese Communist Party effectively controls part of this British infrastructure. Not very patriotic of those Tory brexiteers, is it?

  10. I echo the distress of others here – Iraq to one side I cannot think of anything occurring in my lifetime which is quite so ominous and abjectly depressing for this country. But when all the people in a room agree with each other, either they are all dead right and everyone else is wrong or they are the ones missing something – in this case the political dimension.

    There was a majority of over a million in favour of this foolish and backward proposal. We would not be referring to that as a marginal win had we won. That cannot be dismissed. The game has to be played out.

    I will venture that Brexiteers (if they had the capacity to express it this way) thought Brexit would create direct democracy – evinced by the mantra “take back control”. In fact we had, and have, a representative democracy. It is that which abolished the death penalty. It was that which took us into the EEC (as was). It is that whose elected members should now hold the Government to account in finding an accommodation with the EU.

    That strikes me as being a much more defensible position than having second referenda, which is nothing more than sour grapes.

    I dearly wish things had been otherwise on 24 June but the reality for all concerned is that both “we” and those across the Channel have an enormous common interest in our markets. It now falls to a very cautious politician who has been dealing with some of the most intractable problems in national life as Home Secretary for the last six years, to hammer out a deal. If successful, that will satisfy precisely nobody while leaving the Government standing and our trading relationship with Europe essentially intact. It would be nice if we could avoid going into recession in the process. I’m sure we all wish her the very best as she prepares to take up the reins.

  11. I am not one of those who is arguing for a second referendum. I simply want parliament to ignore the result of the first one!

    I won't re-rehearse the reasons, but they have a lot to do with the fact that a significant proportion of those who voted to leave the EU (probably more than a million of them) must have been misled by the lies, misinformation and false promises that were peddled by the Brexiteers. Add to that those who voted 'Leave' as a protest vote and may now be regretting this, and the small majority for Brexit disappaers altogether. [Incidentally, it may be recalled that Nigel Farage said very clearly that he would not accept a vote as 'narrow' as 52:48 in favour of Remain as settling the matter. The converse must surely apply.]

    The second reason is that the consequences of Brexit are so horrendous for the country that when parliament has had time to reconsider the matter, they may well vote against our leaving the EU after all. This would not be 'undemocratic' or defying 'the will of the people' - it would simply be parliamentary democracy in action - Members of Parliament using their judgement on an issue of national importance.

    Ultimately, this could well be an issue (probably a very important issue)in a future General Election. In the meantime, however, any irrevocable step (such as invoking Article 50 of the Lisbon Treaty) should be indefinitely postponed while all the options are explored.

  12. The fight-back begins. Earlier this week a directions hearing was held before Leveson LJ in the High Court in an action brought by a number of parties seeking to establish that Article 50 of the Lisbon Treaty cannot be invoked without the authority of parliament. The full trial of the action is expected in October before a Divisional Court presided over by the Lord Chief Justice. It is expected that the case may then go on to the Supreme Court. Some formidable legal talent is lined up for the case, which will be the most important issue of constitutional law to come before the courts for many years.