BBC: Brexit court defeat for UK government

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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56 Responses

  1. LeeEsq says:

    The Court might be right. I personally think that leaving big constitutional and policy changes to a simple referendum is a bad idea. I’m not hot on the idea of referendum anyway. People should vote for elected officials and elected officials should legislate and execute. This still seems like an attempt to save the electorate from a bad decision.Report

  2. J_A says:

    From a Constitutional point of view I think this is the correct result, and I cannot imagine that the Supreme Court could rule otherwise without bringing the unwritten constitution on its head.

    The U.K. Constitution has no role in it for The People, of for Popular Sovereignty (those being French Revolutionary concepts). The Sovereign is the “Queen-in -Parliament”, and in practice, the Parliament, with the Queen (in practice the Cabinet) implementing the PRliament instructions.

    Accesing the EU was done through an Act of Parliament, and it requires one to undo the Accession. That, no one disputes.

    The Government’s legal position was that, at the end of the Brexit Process, there was going to be an Act of Parliament bringing the U.K. out of the EU (and simultaneously incorporating every single then-existing EU legal requirement into UK laws (up to an including the allowable bend of bananas), which would then be repealed by Parliament on a one on one basis.

    The opposing position (remember, private parties, not Parliament, brought the case) was that Article 50 is a non-revocable action. If, for discussion sake, In 2019 Parliament rejects the “Out of Europe Act” (perhaps because Parliament disagrees with the final Brexit terms), the U.K. cannot go back. Article 50 starts a finite two-year clock (*) at the end of which the UK will be out of the EU no matter what Parliament votes at that time. Hence, an action of the Queen (invoking Article 50) will, on its own, repeal an Act of Parliament, no matter what Parliament wants to do. This cannot be done.

    The idea that the Referendum itself authorizes Brexit would be a Revolution in itself, because it would put the People as Sovereign, instead of Parliament. We in America (or Westerm Europe, or Latin America, or Africa) might believe that Popular Sovereignty is a normal, unremarkable, concept. But the British Constitution begs to disagree.

    (*) Thinking that all 28 countries will agree to extend the clock is in itself laughable.Report

    • North in reply to J_A says:

      Precisely, well analyzed J_A. Note that this would apply the other way around: If Parliament voted to Brexit but a referendum voted to remain Britain would still exit.Report

    • Mo in reply to J_A says:

      We in America (or Westerm Europe, or Latin America, or Africa) might believe that Popular Sovereignty is a normal, unremarkable, concept. But the British Constitution begs to disagree.

      So does our Constitution. The only way to override Congress + POTUS is a Constitutional Amendment brought and ratified by 75% of the states. No matter what the margin of popular vote by referendum is. And in some cases, such as changing the makeup of Senate/House representation, you can’t do it without 100%.Report

  3. J_A says:

    The practical effects of this ruling would be that Parliament would have to vote sometime this winter, and, most likely, would set up a series of negotiating positions that the U.K. needs to meet, most likely some sort of soft Brexit, including passporting and remaining in the common market.

    Because these concessions would be imcompatible with any significant immigration restriction, it is possible that the U.K. Will end in the same place as with the Cameron deal, but outside, instead on in.Report

  4. Mo says:

    This gets very interesting if it has to go to a vote by the devolved Parliaments, such as Scotland’s, for approval.Report

    • James K in reply to Mo says:


      That’s the only way I can see this decision actually killing Brexit. May can most likely whip her MPs into voting for Brexit, and I doubt Corbyn would try hard to stop Brexit. But if the Scottish Parliament gets a vote then there’s no way Brexit is happening, saving the possibility of Scotland getting to exit the UK first.Report

      • North in reply to James K says:

        Yeah it gets really funky once the regions start weighing in. It happened in Canada during the Quebec independence refferenda as well. The Quebecois started yelling “Canada is divisible, we want out!” And the First Nations who occupy the northern 2/3rds of the Province yelled back “If Canada is divisible so is Quebec and we wanna stay and we’re keeping out land.” And suddenly the separatists weren’t so excited about division any more.

        I may not think this brexit affair is going to cause riots or a failure in faith in the British system of government but man oh man I have no idea how it’s actually going to end up turning out.Report

  5. Kazzy says:

    So, if I’m understanding, the ruling is not that Britain can’t Brexit but that the decision needs to be made by Parliament… is that correct?

    Which, to me, brings up an interesting question: What should Parliament do? The people have spoken… should Parliament honor their voice?Report

    • Jaybird in reply to Kazzy says:

      Democracy is for suckers.

      The second you let them vote for X vs. Y, you’ve effed up.

      What you want is people voting on Xsub1 vs. Xsub2.Report

      • Burt Likko in reply to Jaybird says:

        But that’s where Parliament is now. It isn’t “Exit under this set of conditions” versus “Exit under this other set of conditions,” it’s “Exit” or “Remain.”Report

        • Jaybird in reply to Burt Likko says:

          The problem is that “The People” already voted.

          If you want to argue that the politicians are the representatives of the people and that’s why they’re passing the laws that they’re passing, you pretty much have to have the politicians vote on this sort of thing *BEFORE* the people do.

          Because if the people vote on this sort of thing and they vote Y, you can’t get away with arguing that the politicians are representing the people when they vote for X.

          Maybe they’re doing the best thing on a utilitarian level.
          Maybe they’re doing the best thing on a deontological level.
          Maybe they’re doing the best thing on a virtue level.

          But the thing that they’re not doing is acting as a proxy of the people at that point.

          It ain’t democracy anymore. It’s something else.


          But it ain’t democracy anymore.Report

          • North in reply to Jaybird says:

            Err.. correct. That would be the United Kingdom we’re talking about Jay. It’s a Constitutional Monarchy, not a Democracy.Report

            • Jaybird in reply to North says:

              It was a mistake to ever allow the peasants to vote.

              Set up the vote to be “what color should the new bike racks be? []RED []BLUE” and not “should we have new bike racks?”

              Because if you ask the latter and the vote comes in “no”, putting in the bike racks anyway is a betrayal and an obvious one.Report

              • North in reply to Jaybird says:

                It was a ridiculous clownish move by Cameron to try and pass the buck and placate the anti-EU wing of his party. The old chap thought he could punt it to a referendum then use that as cover to keep things the way they were. Instead the anti-EU side won the referendum.

                On the other hand Cameron promptly resigned from the PM role and then from politics and the Tories have swiftly reorganized into a pro-Brexit party. Far more responsive than the right in the US.Report

              • Jaybird in reply to North says:

                Yep. Blew up in his face. He shouldn’t have done it.

                But he did.

                We are now stuck with one hell of a dilemma.

                I submit: “Since he shouldn’t have done it, we can just undo it in parliament!” will have some seriously negative unintended consequences and I’d really like a little more emphasis on the whole “well, what will the unintended consequences be?” than on “Of course the government has the power to do whatever it wants!” point.

                Nobody disagrees that the government can do this.

                My disagreement is that the government can’t do this and maintain some fairly important fictions at the same time.

                And everybody is arguing against me as if I were arguing that the government can’t do this.


              • North in reply to Jaybird says:

                If this were happening in the US, or a more modern democracy I’d be more inclined to agree with you Jay but this is happening in the UK. Absolutely the leave side is pushing for maximal ‘seriousness’ to be given to this referendum but the historical, legal and social fact of the matter is that the referendum was and is legally toothless. The UK does not have a deep system of raw democratic referenda on which they routinely operate; far from it. England’s fictions actually run in the other direction: that it’s still an autocratic monarchy; that the landed gentry run the show; that the dear grand Dame who resides in the Palace personifies the people and the state.

                Personally, I don’t expect the pressures you fear to blow up as you fear they may because I see the Westminster system turning in its antiquated yet elegant old way to adapt to the new information. The Tories have turned almost over night into a pale version of the UKIP; the government is being administered by the same. And finally the court is simply right: the UK joined the EU through an act of parliament and it’ll take an act of parliament to remove it. And if the parliament dares ignore this unwelcome message that was delivered to it, well then the brexiters will demonstrate their strength at the ballot box again.

                If we were talking about Quebec or Maine or something I’d be right there with you worrying but we’re talking about Britain. It’s older and more organic than it is in the west.Report

              • Jaybird in reply to North says:

                So your point is we’ve nothing to fear.

                I guess we’ll see who is right.Report

              • North in reply to Jaybird says:

                Fear as in batten the hatches it’s revolution time in ol’ England? Yes I think we have nothing to fear. Fear as in England’s in for a whole sticky mess of will they won’t they and brinkmanship with the EU? Definitely there’s plenty to fear for that.Report

              • Jaybird in reply to North says:

                Fear as in “Oh, why don’t we have a trust/collaboration society much more like England’s?” will evolve into “Of all of the countries that England could have chosen to emulate, why-oh-why did they choose to emulate the US instead of one of the Nordic countries?”Report

              • Kazzy in reply to Jaybird says:


                In teaching, we call this the illusion of control. “Do you want to clean up the trains by yourself or with the teacher?” Cuz dem trains are GETTING cleaned up.Report

              • Jaybird in reply to Kazzy says:

                Oh yeah.

                The problem comes with the whole “at some point the analogy breaks down” thing and we’re moving from “teachers/toddlers” to “government/grownups”.Report

              • Kazzy in reply to Jaybird says:

                I fully agree that the Parliament is in a bit of a bind if their wish is to avoid Brexit but their other wish is to remain in Parliament.Report

          • Mo in reply to Jaybird says:

            One can be a democracy without being a direct democracy. The USA is a democracy, but no referendum is enforceable on a federal level. The people are welcome to elect people that vote the way they want to.Report

            • Jaybird in reply to Mo says:

              But that only works if you have the people you’ve elected to vote on your behalf for or against a particular policy vote for or against that particular policy *BEFORE* you have the people vote for or against that particular policy.

              Doing it *AFTER* presents identically to “cheating” rather than “lots of countries aren’t democracies!”Report

              • Mo in reply to Jaybird says:

                How is this any different than politicians voting against a policy that polls well in their district/jurisdiction?Report

              • Jaybird in reply to Mo says:

                It’s the difference between a Brexit poll that shows “Remain” winning and a Brexit referendum that results in “Leave” winning.Report

              • Mo in reply to Jaybird says:

                OFFS, not this dumb meme. The polls were completely uncertain and pointed to a close outcome (which was true). Of the 30 most recent polls taken before the referendum, 16 showed Leave winning and 14 showed Remain winning. I suspect, more than anything, the murder of Jo Cox made Remain look stronger than it really was. But let’s say a poll shows something way out of the margin of error. 66% of Americans support a $10 minimum wage, should Republicans roll over to maintain democracy?Report

              • Jaybird in reply to Mo says:

                Trying to read you charitably, but I’m pretty sure that you misunderstood my comment.Report

            • Burt Likko in reply to Mo says:

              Or, alternatively phrased, the people as a whole are welcome to elect public officials whose judgment they trust.Report

              • But we seldom vote “as a whole”, we vote by districts. So we get situations where — to pick one recent example — the Democrats get more votes for US House seats than the Republicans as a whole, but the Republicans get a majority of the seats because districts.Report

            • notmme in reply to Mo says:

              I always thought we were a republic not a democracy.Report

          • Jesse Ewiak in reply to Jaybird says:

            The People should’ve known the Referendum had no actual binding power in the law. The Government asked the UK populace their opinion on something.Report

            • Jaybird in reply to Jesse Ewiak says:

              Yeah, that’ll go over.

              To clarify, my argument is not that the government does not have the *POWER* to do this.

              Of course it does.

              It’s just that it doesn’t have the power to do this if it wants to maintain a particular form of moral authority that comes from the whole “will of the people” thing.

              If all we’re arguing over is the academic point of whether the government is allowed to do this, of course they are.Report

              • North in reply to Jaybird says:

                I don’t think you’re considering how much buck passing and ass covering this (correct in my mind) ruling has and how salutary it is to the British democracy. The MP’s are going to have to figure it out, make a decision on it and then face the voters judgement on it. They can’t hide behind the referendum or use it as an excuse. Looks like a healthy development from my PoV.Report

              • Jaybird in reply to North says:

                You’re right. I’m not.

                I’m, instead, looking at how it’s a last-ditch attempt for the government to do what it was going to do anyway except, this time, it no longer has the fiction of “we’re representing the will of the people!” covering their actions.Report

              • North in reply to Jaybird says:

                I dunno, prior to the referendum Cameron and his party’s intention was to have the little vote, placate/chastise the rubes to his right then getting on with the business of beating Labor like a drum while they writhe in an odd left wing version of what the GOP is suffering right now in the US.

                Now? Cameron’s trying to figure out what hobby he’s going to pick up to fill his suddenly ample free time as are much of the former ruling circle of the Tories. The new Tories meanwhile are unhappily trying to figure out the actual details of what a brexit entails. It’s not a 180 degree turn, I grant you but it’s something like 135 degrees. That’s not fast enough for the brexiters but it’s a totally different direction from before. That’s a whole lot of will of the people on display there. Ya gotta give it to parliamentary democracies, they can spin around on a dime. They don’t have the institutional impediments to change that the American system does.Report

              • Autolukos in reply to Jaybird says:

                The argument that says that voters are too dumb to know the legal status of a referendum seems like a very strong argument against taking the results of said referendum seriouslyReport

              • Jaybird in reply to Autolukos says:

                Are the voters smart enough to see that the government sees them as too dumb to know what’s good for them in a way that makes everybody happier that their government is looking out for them and wants to make up for the mistakes of the dumb?

                Because if they’re too dumb to realize that the government is looking out for them, that might create some problems when it comes to the next time the government says something like “we’re representing your interests!”Report

              • Autolukos in reply to Jaybird says:

                It seems to me that the argument that voters can’t understand the referendum also strongly suggests that they can’t understand whether or not the government is telling the truth about looking out for their interests.Report

              • Jaybird in reply to Autolukos says:

                What could go wrong?Report

              • Autolukos in reply to Jaybird says:

                If things go really poorly, the voters might get what they want.Report

              • Jaybird in reply to Autolukos says:

                As bad as that is, it still maintains some fairly important fictions.Report

              • Autolukos in reply to Jaybird says:

                The perception and reality seem to be poorly correlatedReport

    • North in reply to Kazzy says:

      Parliament should do one of two things: Either throw an election, campaign on pro or anti Brexit and then have a vote in Parliament after it’s done or try and have a vote in Parliament on the matter now and when it gets defeated have an election where the MP’s campaign either pro or anti Brexit.
      Parliament, with the consent of the Monarch, makes the laws. That’s how it works in the UK.Report

    • Mo in reply to Kazzy says:

      Correct. What’s interesting is that when it was just Leave v. Remain, a bunch of promises could be made with no enforcement mechanism (and no throat to choke if the promises fall through). Now that it’s part of a real negotiation, promises like “We can plow £350M/week into NHS from the money we save from the EU,” can be made explicit. Instead of, “That’s great that we voted leave. Oh, and it was a mistake to have made that claim, I can’t promise that.Report

  6. Burt Likko says:

    A perennial dilemma of representative democracy.

    My constituents have expressed a preference for a particular policy, called “A.” My best judgment tells me that a competing policy, “B,” is a superior choice and will yield a better result for them. Do I owe my constituents the accurate representation of their wishes, or do I owe them my best judgment?

    If I am merely a conduit for the expression of their will, what’s so special or important about me? My opponent in the election can read the polls and see the results of a referendum just as well as I can. So there must be something else going on in my constituents’ selection of me instead of my opponent to sit here in this seat and make this decision. Maybe they elected me because they trust my judgment, at least more than they trusted the judgment of my opponent. Therefore, don’t I owe them the exercise of that judgment?

    But, if I cast my vote in a way that is too overtly contrary to the voters’ preferences, is that really democracy? Is that really an expression my voters’ will, or only of my own personal preference? Am I just fooling myself that my own best judgment isn’t simply a result of my privileged and elite status as an elected legislator? Besides, my best judgment could be wrong… I don’t think it’s wrong, but I must admit that all outcomes are uncertain and dependent upon complex factors, so even if my reasoning is sound, policy “B” might still might turn out badly and policy “A” might still turn out well.

    There is no easy answer to this question, in my opinion. As I see it, most of the time, legislators go with their better judgment because, on most things, the votes are mostly invisible and mostly boring, so they can vote without immediate fear of constituent disapproval. As long as the result doesn’t turn out too bad, then most of the time, it’ll work out.

    There are exactly zero MPs for whom a Brexit Article 50 vote will be made under such shelter. The best hope for an MP is to say, “I have had more recent polling done in my borough and a majority of my constituents want to remain, so that’s how I’m voting,” and hopefully that has the benefit of being true.Report

  7. Will Truman says:

    I can see an argument that it should have gone the other way, but it would definitely require more mental effort than the argument that this ruling is correct.

    Aside from constitutional questions, it’s important on some level that parliament vote for it as a matter of accountability to the specifics. They can choose not, of course, and be held accountable for that as well.Report

  8. Kolohe says:

    Everyone becomes a strict constructionist when it suits them.Report