Brexit to go ahead: UK Parliament

MPs approve 461 v 89 plan to trigger Art. 50 TEU by 31 March

The members of the UK Parliament (‘MPs’) have voted on Wednesday evening (7th December, 20:10 UTC) in London to support the government’s plan to trigger Article 50 TEU and the ensuing exit negotiations of Britain from the EU by 31^st March 2017.

The vote at the lower parliament chamber of the Kingdom (‘House of Commons’) confirmed by a vast majority (461 to 89) the right of the government to proceed with the mandate it received from the people of Britain following the referendum of 23 June 2016 to act on the popular will (51.9% in favour of Brexit).

UK Parliament  - Image credit Mdbeckwith Wikimedia

The Labour party, and political forces in Scotland and Northern Ireland (where the majority of voters was against Brexit) have tried for the past five months to raise obstacles to the implementation of the  results of the referendum.

On Tuesday, the Labour party filed a motion saying the government should publish a plan and it was "Parliament's responsibility to properly scrutinise the government" over Brexit. The motion initially received 448 v 75 votes, but the debate today in the House of Commons, and a compromise reached between the Conservative (ruling) party and Labour, has now given a clear go-ahead to the government to proceed with its plans. The opposition has, however, made it clear that they will closely monitor the negotiations process.

The result of the parliamentary vote is likely to influence the decision of the UK Supreme Court, which is due to decide later this month whether the government can trigger Art. 50 TEU within the frame of its own powers, or whether the Parliament should first officially approve activation of Art. 50 TEU. The Supreme Court judges are hearing this week the arguments of the parties.

Theresa May, UK PM, has demonstrated her political ability, and shrewdness, by bringing the matter to parliamentary vote before the Supreme Court’s decision. She has also deflected a rebellion by 40 MPs of her own party this week, who consider that the parliament is above citizens' decisions taken by referendum.

But the matter is not over. Mrs May will now have to develop a well thought-out Brexit strategy in the face of a dis-united EU, whose core members—Germany, France, the Netherlands—are seeking ‘blood’, in the sense of inflicting upon the UK tough economic and freedom-of-movement sanctions, among other forms of punishment. Many hard-core EU members would like to isolate Britain from Europe and use the Brexit case as a deterrent for other member states, which, in these politically volatile times, are playing with the idea of quitting the Club.

This is the political stance of unconditional Europhiles with federalist aspirations—Angela Merkel, François Hollande, Jean-Claude Juncker, Donald Tusk, and (until this week) Matteo Renzi. But times have changed, and the results of presidential or legislative elections next year in the Netherlands, France, Germany will finally determine the viability of the European Project, and the position to adopt in respect to Brexit. Hopefully, cool heads will prevail, and Europe will continue to be an area of prosperity and peace, as in the past 60 years.

The trouble with the EU

"Lost in translation": The ideal of Europe faces irrelevance, warn Spanish philosopher and Dutch politician

The idea of United Europe is gong through a deep crisis. This we have known for the past few years, especially following the Eurozone and the massive migration dramas. But intellectuals and statesmen alike are now ringing the alarm bell for the Union’s future—and in no uncertain terms.

Two interviews this week have brought the issue to front pages of European media.

José Antonio Marina. Photo: WikiMedia Commons

The first was given by Spanish philosopher and academic  José Antonio Marina at the launch of his latest treatise Tratado de Filosofia Zoom, which analyses the weaknesses of the European Project, as it has evolved, and proposes approaches for its solution.

For Marina, the problem lies with the Union’s institutions and its leaders’ lack of understanding of the ‘soul’ of Europe and of the Europeans. Brexit and the rise of nationalism and populism are, according to him, the effects and not the causes of the events we observe, and which challenge the sustainability of the EU system.

The philosopher blames for these ills the weakening of European education, which is neglecting the traditional emphasis on ‘critical thinking’—a core competence of the intellectuals and political decision makers, and a truly European science, since Antiquity. The result, says Marina, is that we tend to overlook the real issues and to fall into undue euphoria without measuring the consequences of moves, as it has been the case with the introduction of the Euro and the hasty enlargement towards the East.

His present main concern is with the inability of EU’s leadership to properly analyse the root of potentially grave issues, like striving for national sovereignty as in Britain and Eastern Europe, phobia with immigration from other continents, and the dehumanising supremacy of technology.

Artificial intelligence (‘AI’) is core to his concerns for the future of Europe and of humanity:

“At stake are those who would make short-term decisions: AI or the human brain,” warns the philosopher.

Technology is important and a driver for progress, he continues, but those in charge of the welfare of society should have a clear idea as to its uses. With American and Japanese firms leading the AI revolution at rapid pace, it will be soon too late to react and protect human involvement in productivity and in deciding on their own future.

The European Project at risk, really

Frans Timmermans - Photo: WikiMedia Commons

Speaking to French daily Ouest France, Frans Timmermans, 1^st Vice President of the European Commission, did not hide his disappointment with the direction the EU has taken in recent times. 

“The European Project may still fail,” said the Europhile politician during the interview, aimed at launching his book Fraternité (“Brotherhood”).

“Victor Hugo defined Brotherhood as a “collective duty”. It was at the time of the second industrial revolution. We are now experiencing the fourth [industrial revolution] and I feel that we are going through a similar phase. The ties within our society are broken,” said the Commission’s VP.

Timmermans, a socialist and former Minister of Foreign Affairs of the Netherlands, has been a strong proponent of the European Communities and of their transformation into a Union, going beyond market and trade collaboration among its members. But he now seems to be alarmed by the palpable dissatisfaction of the European citizens. Key to such resentment appears to be the letting down of the middle classes.

“Our society is founded on the basis of a social contract signed, particularly, by the middle classes. The misunderstanding, especially among us socialists, is that sometimes we believe that it is better to proceed wit reforms bottom-up. Other think that reforms should be made top-down. No!--society is built from the centre!,” Timmermans told the French newspaper.

His fear is that demanding from the middle classes to always give without return to their contribution, or hope for betterment of their condition, is bound to force them look for alternatives.

“[The middle classes] have no longer faith [in this social contract]. They fear they will be dragged-down,” that is, towards the lowest common denominator: poverty, he explained.

Similar mistrust in respect to the system is rising also among the youth, believes Timmermans. His analysis points towards such disenchantment as justification for the gains made by populists, nationalists and Salafists in recent times among the young Europeans, who feel lack of belonging to the status quo.

Ethics and the Commission

Answering a question about the acceptance by former President of the Commission Manuel Barroso (Portugal) of an executive job with Goldman Sachs, a U.S. financial institution, Timmermans did not spare his disgust:

“[Actual Commission President] Jean-Clause Juncker and I are very affected [by this decision]. Do you think that either of us are in politics for the money? If one wants to make money, one gets a job in the private sector. How can one imagine this [job choice] by someone who has presided over the Commission during ten years and who has witnessed what Goldman Sachs has done? I can’t think of myself in a similar position. In politics, the example counts more than ever! Do you want that people talk about values? Behave appropriately. Be worthy of respect!”

Britain: Constitutional Crisis Looming

Parliament must decide on Brexit process, says UK High Court

The High Court in London on Thursday (3rd November) decided that the British Government must seek approval by the Kingdom's parliament before beginning the process of triggering Article 50 TEU, which enables an EU member state to leave the Union.

The decision concerned a complaint filed by Ms Gina Miller, a businesswoman, against the plans of the Government to proceed with its intention to abandon British membership in the EU ('Brexit'), following the result of the referendum of 23 June 2016  on this matter. 

British Prime Minister Theresa May informed at the last European Council  the heads of state and government of the Union that she will officially give notice of exit on the basis of Art. 50 TEU by the end of March 2017. Her understanding has so far been that she, as PM, has the right to go forward with the implementation of the popular will using the concept of 'royal prerogative' (see more on this principle at the end of the post).

The High Court has, however, a different opinion on the constitutionality of Mrs May's plan.

Here is the full text of the High Court's judgment, issued by the Lord Chief Justice (Lord Thomas of Cwmgiedd), the Master of the Rolls (Sir Terence Etherton) and Lord Justice Sales. The notes (in parentheses in the text) were not available at the time of posting.

== QUOTE==

The question

1- The issue before the court is whether, as a matter of UK constitutional law, the Government is entitled to give notice of a decision to leave the European Union under Article 50 by exercise of the Crown’s prerogative powers and without reference to Parliament. This is a pure question of law. The court is not concerned with and does not express any view about the merits of leaving the European Union: that is a political issue.

2- It is accepted by all sides that this legal question is properly before the court and justiciable: under the UK constitution, it is one for the court to decide [5]. It turns on the extent of the Crown’s powers under its prerogative [explained at 24-29]. The Government accepts that neither the European Union Referendum Act 2015 nor any other Act of Parliament confers on it statutory authority (as distinct from the Crown’s prerogative power) to give notice under Article 50[67-72, 76 and 105-108].

Background

3 - On 1 January 1973 the United Kingdom joined what were then the European Communities, including the European Economic Community. Parliament passed the European Communities Act 1972 (1972 Act) to allow that to happen since it was a condition of membership that Community law should be given effect in the domestic law of the United Kingdom and primary legislation was required to achieve this [1 and 36-54]. The European Communities have now become the European Union.

4 - Pursuant to the European Union Referendum Act 2015 a referendum was held on 23 June 2016 on the question whether the United Kingdom should leave or remain in the European Union. The answer given was that the UK should leave [2].

5- The process for withdrawal is governed by Article 50 of the Treaty on European Union, which states that once a Member State gives notice to withdraw there is a two-year period in which to negotiate a withdrawal agreement. If no agreement is reached in this time then, subject only to agreement on an extension of time with the European Council acting unanimously, the EU Treaties shall cease to apply to that State. The Government accepts that a notice under Article 50 cannot be withdrawn once it has been given. It also accepts that Article 50 does not allow a conditional notice to be given: a notice cannot be qualified by stating that Parliament is required to approve any withdrawal agreement made in the course of Article 50 negotiations [9-17].

6 - Therefore, once notice is given under Article 50, some rights under EU law as incorporated into domestic law by the 1972 Act would inevitably be lost once the Article 50 withdrawal process is completed [57-66].

The constitutional principles

7 - The most fundamental rule of the UK’s constitution is that Parliament is sovereign and can make and unmake any law it chooses. As an aspect of the sovereignty of Parliament it has been established for hundreds of years that the Crown – i.e. the Government of the day – cannot by exercise of prerogative powers override legislation enacted by Parliament. This principle is of critical importance and sets the context for the general rule on which the Government seeks to rely – that normally the conduct of international relations and the making and unmaking of treaties are taken to be matters falling within the scope of the Crown’s prerogative powers. That general rule exists precisely because the exercise of such prerogative powers has no effect on domestic law, including as laid down by Parliament in legislation [18-36].

8 - In the present case, however, the Government accepts, and indeed positively contends, that if notice is given under Article 50 it will inevitably have the effect of changing domestic law. Those elements of EU law which Parliament has made part of domestic law by enactment of the 1972 Act will in due course cease to have effect [76-80].

9 - The central contention of the Government in the present case is that Parliament must be taken to have intended when it enacted the 1972 Act that the Crown would retain its prerogative power to effect a withdrawal from the Community Treaties (now the EU Treaties), and thereby intended that the Crown should have the power to choose whether EU law should continue to have effect in the domestic law of the UK or not [76-81].

Conclusion

10 - The Court does not accept the argument put forward by the Government. There is nothing in the text of the 1972 Act to support it. In the judgment of the Court the argument is contrary both to the language used by Parliament in the 1972 Act and to the fundamental constitutional principles of the sovereignty of Parliament and the absence of any entitlement on the part of the Crown to change domestic law by the exercise of its prerogative powers [82-94, 97-104]. The Court expressly accepts the principal argument of the claimants [95-96].

11 - For the reasons set out in the judgment, we decide that the Government does not have power under the Crown’s prerogative to give notice pursuant to Article 50 for the UK to withdraw from the European Union.

 ==END==

Update 12:44 GMT

The text of the full discussion and judgment can now be accessed here

What's next?

The UK Government has replied that it will challenge the decision before the Court of Appeal. If it loses, it may still bring the case before the Supreme Court.  

UK court hierarchy - Oxford University Law School

The appeal could be heard by the Court as early as December 2016. If its decision supports that of the High Court, a discussion and vote at the Parliament should be held in January of February 2017. The outcome of such process is, at this stage, difficult to predict. The supporters of the 'Remain' [in the EU], who include many MPs of the ruling Tory party, are revitalised after yesterday's verdict. However, a large part of politicians and voters have now added their support to Brexit, on the grounds that the judiciary should stay out of a political issue.

The situation is considered by experts as setting the floor for a potential constitutional crisis. A snap election is not excluded, in spite of the fact that regular legislative elections are scheduled for 2020 only. An electoral contest in the coming weeks or months should favour the Tory party, whose popularity (together with Mrs May's popularity) is very high. The Labour party should, in such event, see its presence in the Parliament further diminished. 

To conclude, regardless of the outcome after the appeal, the Government will pursue its effort to take Britain out of the European Union. Its exit strategy may, however, change accordingly. The use of the royal prerogative principle will let Mrs May act freely in the negotiations with Brussels. On the other hand, a decision through the Parliament will strengthen the hand of the Remain camp, who may insist on a longer and softer Brexit process, in the hope that the negotiations will drag into 2020, by which time, through new elections and, perhaps, a new referendum, the popular decision of 23 June 2016 may be reversed.

What is the royal prerogative?

The royal prerogative is a set of powers that gives the Prime Minister and the Government the authority to make decisions without consulting Parliament.

These historic powers are officially held by the Queen, but in practice are used by cabinet ministers. In the past, the prerogative has been used to withdraw passports, make treaties and deploy armed forces.

The powers also cover the appointment and dismissal of ministers, civil service officers and QCs, the granting of honours and the commissioning of armed forces officers.

The Prime Minister can also use the prerogative to dissolve Parliament and call elections, declare war and recognise foreign states.

In the days of the death penalty, the royal prerogative of mercy enabled ministers to pardon those that had been sentenced. It now allows for sentences to be changed.

One of the more unusual parts of the prerogative is the Queen's ownership of Britain's swans. 

(source: Daily Mail)

 Royal prerogative -  see also: 
https://en.wikipedia.org/wiki/Royal_prerogative_in_the_United_Kingdom#cite_note-car-2

https://global.britannica.com/topic/constitution-politics-and-law/The-practice-of-constitutional-government#ref384595 

England: Oldest monarchy in Europe

England (and, as a result, Britain) boasts the oldest democratic and fair judicial systems in Europe! Paradoxically, it has the oldest monarchy of Europe, too! It is a paradox, because in most people's minds a royal regime does not equate democracy. But in Britain it does, thanks to the conferral, long time ago, of substantive governance decision-making to the Parliament, and to the clear separation of powers--legislative, executive, judicial.

Britain is also the fourth most ancient monarchy in function today in the world, founded 1,200 years ago. It is preceded in ranking by:

- the Japanese monarchy (probably 2,603 years)

- the Cambodian monarchy (approximately 1,900 years)

- the monarchy of Oman (probably 1,265 years)

[historical data about the founding monarchs are often difficult to verify].

Other old-standing monarchies of Europe, with more than 1,000 years of existence: Norway, Denmark and Sweden. 

Some historians contend that the Vatican should be added to these, as it is a theocracy, thus a religious (albeit not parliamentary) monarchy. The objection to this rationale is that the Pope, head of the State of the City of Vatican (Stato della Città del Vaticano, which is a sovereign state within the territory of present-day Italy) is democratically elected by all the Catholic cardinals of the world and not appointed as the heir of the deceased, or abdicating, monarch.