For the avoidance of doubt: the evidence that the EU Referendum was purely advisory.

The Referendum was not legally binding and was purely advisory. MPs knew or should have known this, and chose for it to be advisory. If the UK leaves the EU, it will because MPs have decided that it should, not because the referendum result compels the UK to do so.

Very surprisingly, there have been some recent questions on Facebook, Twitter and elsewhere as to whether the UK’s referendum on the EU was legally advisory or legally binding.  According to FullFact.org,  those who have claimed it was binding include John Redwood MP.

screen-shot-2017-01-12-at-01-32-15

(https://fullfact.org/europe/was-eu-referendum-advisory/)

This is however not true, as even Nigel Farage has admitted. You can see this at 2:17 in the video below:

It is not therefore widely disputed that the referendum was advisory, but I nonetheless thought it would be useful therefore to put all the evidence in one place for reference.

1. The Referendum Act.

The text of the Act is available here.

The act itself makes no reference whatsoever to the result being binding.  In fact, the only reference to the result itself is in Schedule 3, Paragraph 19 (p.63) and concerns solely restrictions on when and how any legal challenges questioning the number of ballot papers counted or votes cast can be made.  As such, there is therefore no legal definition of  what a Remain or Leave result would be at all.  There were only political pronouncements that 50% would be the margin for either to win.

For the act to be legally binding, the act would have had to have stated this specifically, made a specific reference to the changes to laws that would result from it, or actions, such as notification to the Council of the European Union that the UK was invoking article 50 of the TEU, that would be legally required of ministers or the Prime Minister as a result.

This would have been possible had Parliament decide to do it.  The 2011 Act on the Alternative Vote Referendum did this, and has a sections (8) on the “Result of the Referendum” and (9) on the amendments to existing acts that would come into force as a result of a Yes vote.

screen-shot-2017-01-12-at-02-06-11

The EU Referendum Act does not do this. The result of it was not therefore legally binding.

2. Were MPs aware of this?

MPs should certainly be aware of this for two reasons.

a. The Briefing Paper

Firstly, the House of Commons Library prepared a briefing paper which made this very clear to them.

screen-shot-2017-01-12-at-02-10-17

(https://fullfact.org/europe/was-eu-referendum-advisory/)

It is worth reproducing the section on the advisory nature of the referendum in full:

5. Types of referendum

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.

b. The Minister for Europe

The second way in which MPs would, or should, have known that the referendum was advisory is because the then Minister for Europe, David Liddington, told them it would be on 16th June 2015. This is in Hansard, 16 Jun 2015, Column 231., and available here:

Mr Liddington said:

Amendment 16 does not make sense in the context of the Bill. The legislation is about holding a vote; it makes no provision for what follows. The referendum is advisory, as was the case for both the 1975 referendum on Europe and the Scottish independence vote last year. In neither of those cases was there a threshold for the interpretation of the result. The Government take the view that, in respect of EU membership, we are one United Kingdom. The referendum will be on the subject of the United Kingdom’s membership of the European Union and it is therefore right that there should be one referendum and one result. I hope that the right hon. Gentleman will choose not to press his amendment.

The amendment that he was talking about had been tabled by Alex Salmond and other SNP MPs, and would have required that the result could only be considered to be that the UK should leave the EU if 50% of the votes cast were for Leave in each of the 4 countries of the UK.

The amendment is reproduced below:

screen-shot-2017-01-12-at-02-28-24

Parliament rejected this amendment. In fact, had parliament accepted this amendment would probably have  meant that the UK was not now planning to leave the EU, and that Scotland was not (probably) now planning on leaving the UK.

So, the Referendum was not legally binding and was purely advisory. MPs knew or should have known this, and Parliament chose for it to be advisory.  If the UK leaves the EU, it will because MPs have decided that it should, not because the referendum result compels the UK to do so.

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Why it is fair that the UK would have to pay into the EU budget after Brexit

UK newspapers have been awash with outrage over Michel Barnier, the Commission’s chief negotiator, pointing out that the UK will face a bill of £50bn for leaving the EU (e.g. http://www.telegraph.co.uk/news/2016/12/15/britain-will-handed-50bn-exit-bill-eu-theresa-may-triggers-article/ ).  This outrage can however only be either mock, or based on a lack of understanding of how the EU budget works.  I won’t go into the number itself, as estimations seem to vary between EUR 40bn and EUR 60bn at the moment, but here’s a quick explanation of why the EU budget system makes a large exit bill inevitable and equitable, and not, as some seem to think, an act of retribution by the EU.

The EU Budget

The annual EU budget is based on the “Multi-annual Financial Framework”, or MAFF, which is agreed by Council (All Member States) for a 7-year period.  The current MAFF runs from 2014-2020.  You’ll probably remember that David Cameron, the PM at the time, (rightly) claimed credit for a freeze in this for the first time ever in 2013 (https://www.gov.uk/government/speeches/prime-minister-david-cameron-statement-on-the-eu-budget ).   The MAFF sets out the maximum levels in each of the areas of spending for the EU over that 7 year period.

Each year’s Annual Budget s then proposed on the basis of the MAFF, and agreed by Council (All Member States) and the European Parliament.

The 2017 budget is here.  The UK’s share of this, after the rebate, is approximately 14%.Screen Shot 2016-12-16 at 12.25.46.png

[Source: http://ec.europa.eu/budget/news/article_en.cfm?id=201611170947]

Commitments

Unlike many national budgets, it includes two columns – Commitments and Payments.

Commitments represent, as the title suggests, the amount that the EU can commit to spending during the budget year.  These commitments usually take the form of Commission proposals for individual projects and programmes.  Member states (and in some cases the EP) are then asked to give their comments and consent to the projects and programmes through ‘commitology’ committees that their representatives attend. These are usually government experts, mandated to vote for or against proposals by their department’s Minister.

Payments

Projects and programmes of course often last more than one year though, so the EU budgetary system is set up so that the actual payments related to a commitment can be made over the 2 or 3 year period following the year the commitment was made.  The is known as the N+2 or N+3 rule, with N being the commitment year. Whether the period is 2 or 3 years depends on the area, and the individual piece of EU law the action is carried out under.  For example, Structural funds have the N+2 rule.  This has the benefit for budget discipline of meaning that, if the committed funds are not spent within N+2 years, they are returned to the EU budget and not spent.  (The Scottish Government’s helpful explanation of this is here: http://www.gov.scot/Topics/Business-Industry/support/17404/Nplus2Rule )

So, for example, a programme that is committed to in 2016 will appear as a debit in the Commitments column of the 2016 budget, but it will only appear in the payments column in 2017, 2018, and possibly 2019, depending on the payment schedule of the project and the N+ rule that it falls under.  So, an given annual budget’s payments column has to cover payments for projects committed to in the previous three years.

The UK

So, what has the UK committed to? It committed to pay 14% of the 2014-2020 Multi-Annual Financial Framework.  This means that it would have to pay for the commitments and payments made in 2020, even if it were to leave the EU in 2019.  The UK agreed to this framework in 2013.

It also means that, if it were to leave in 2019, it would have to pay its share of the outstanding payments for commitments made in 2018, 2019 and 2020.  This means that it would have to pay its share of the payments part of the budget until 2023 at the earliest, and more probably 2024 (There are always some projects and programmes, which, for good reason, and with the consent of Member States, have their payment deadlines extended).

As for the number, which I know I said I wouldn’t deal with, it’s easy to see how, with the UK’s liabilities being 14% of an annual budget’s payments of, in 2017, EUR 134.5 bn, this ratchets up to around EUR5 50-60 bn when the additional years are added.

So, this is not revenge or retribution, but a fair split of the cost of things the UK has committed to and agreed at the very highest level to pay for.  If I cut up my credit card, it does not mean that I am exempt from paying my bill. Neither is the UK government.

p.s., this is all before we even get into the question of what happens to the UK’s membership of the European Investment Bank (EIB).

[Edit, 06/04/17:  This does not take into account the pensions of UK citizens who are EU staff, which the UK is also liable for.  This would need to be included as a one off settlement, or as a binding commitment to pay these as they are drawn.]

Labour falls willingly into Government Article 50 Trap

Labour has fallen headlong into a Government trap to tie it, and the rest of Parliament’s hands on on Article 50.

The Government has accepted a Labour motion to publish and debate their plans for Brexit before triggering Article 50.  The Government has accepted the motion with its own amendment.  Labour is hailing this as a great victory for opposition and Parliament, and some of the press is painting this as a Government climb-down (e.g. The Guardian).  But it is not a victory for Labour or Parliament.  It is a trap that Labour have willingly plunged themselves into.

Here is Labour’s motion:

screen-shot-2016-12-07-at-02-41-39

The Government accepted this with the following amendment:

screen-shot-2016-12-07-at-02-41-19

It really isn’t a victory at all.  Quite the opposite.

The Government amendment clearly commits Parliament, politically at least, to agreeing to invoking Article 50 whatever the terms. It also commits Parliament to accepting and facilitating the PM’s own March 2017 deadline for invoking Article 50 whatever happens.

My prediction is that the Private Members’ Bill on Art.50, which has a second reading on Friday 16th December, will either miraculously shoot up the order paper with tacit government support so that the government can dare MPs to vote against it, or that there will be attempts to slip it through without debate. The Government can then claim, just after the SC rules, that, since Parliament has ordered them to invoke Article 50 by the end of March, the only way to do that will be to use this handy Private Members’ Bill that is only 3 lines long (see: Article 50 Private Members’ Bill tabled).

If this does not happen, expect to see a Government tabled, 3-line Article 50 bill the day after the Supreme Court rules in January, and articles in the press about MPs who dare to dissent, or even try to amend it, being enemies of the people for going back on Parliament’s promise.

 

Article 50 Private Members’ Bill tabled

 

[Update 13/12/17 – The bill’s second reading has been put back to 27th January, suspiciously just after the ruling of the Supreme Court is expected.  I think it is now fairly likely that the UK government will give the bill their support and government time in Parliament, and  use it to get Parliament’s agreement to them invoking Article 50.  It is hard to see how they could get a bill through by their end-of-March deadline otherwise.  You’ve been warned!

screen-shot-2017-01-13-at-23-25-38

http://services.parliament.uk/bills/2016-17/withdrawalfromtheeuropeanunionarticle50.html

[UPDATE 16/12/16 – This bill was not rejected at second reading, but has been rescheduled for Friday 13th January

Screen Shot 2016-12-16 at 17.58.52.png

https://www.parliament.uk/business/news/2016/december/commons-pmbs-16-december-2016/ ]

Conservative MP Peter Bone has tabled a Bill in Parliament requiring the Government to give Article 50 Notification by 31st March 2017.  This has been passed off by many as a stunt by a Eurosceptic MP to try to tie the government to their own deadline, and that it is bound to fail.  I don’t think that it necessarily is a joke.

If I was the government, this is precisely what I would do. A nice, silly private members’ Bill that nobody really notices because it’s done just before a by-election and the release of the new immigration figures.  This can get through the formalities of the first reading without much fuss, and be ready for a second reading on 16th December (according to the Independent). This avoids the government being contemptuous of the Supreme court by preempting it, and puts them in the position of having a Bill ready in January after the Supreme Court ruling that just needs a little tweak or two before it is bullied through.
Private Members’ Bills have been used similarly by governments in the past (remember the 2013 attempt on an EU referendum when the Coalition government hadn’t agreed to one), and it is not unusual for the Government to pledge support for, and give Government time to, Private Members’ Bills (for example, the recent Homelessness Bill).
The Government is well aware that it may not have time to get a Government Bill through by the end of March if it can only begin the process after the Supreme Court has ruled.  By the second reading of this one the government and others can trot out the ‘People have spoken’ argument, and MPs will be too scared to vote against it. By the third, the Supreme Court will have ruled, and they can crack on having saved a couple of months in the preparation of the Bill while everyone was looking elsewhere.  The government can also propose amendments changing or removing the date if it doesn’t suit them.

 

I might be wrong.  I hope I am.  This might just be a Tory MP making a point or seeking media attention.

Call me paranoid if you will, but, when it comes, the Bill that would take the UK out of the EU will not have a big red sticker on it saying “Remainers get angry now”.  It will say almost exactly what this one says, which is “A Bill to Require Her Majesty’s Government to notify the European Council by 31 March 2017 of the United Kingdom’s intention to withdraw from the European Union.”

The Bill is here: http://www.publications.parliament.uk/pa/bills/cbill/2016-2017/0104/cbill_2016-20170104_en_2.htm

Some commentary from the Independent here: http://www.independent.co.uk/news/uk/politics/the-government-could-be-forced-to-trigger-article-50-by-april-a7448011.html

[Edited to add BBC link on process and the possibility of a ‘Trap-Door’]

http://www.bbc.com/news/uk-politics-parliaments-38173167

 

Ten reasons why it is not undemocratic for MPs to vote against invoking Article 50

  1. MPs have a duty to do what they think is right and in the best interests of the UK.
  2. The referendum was not an election, the result of which could be reversed at the next general election.
  3. Democracy does not begin and end on a single day.  People change their minds in light of new information and it is childish to hold them to their first answer like gameshow contestants.
  4. Large numbers of people were denied the right to vote in the referendum
  5. The referendum result was close, and insufficient for such a large, irrevocable constitutional change.
  6. Parliament had clearly decided that the referendum was advisory.
  7. It was and is unclear what leaving the EU would mean. People were forced to vote blind.
  8. The 2015 Conservative Party manifesto was clear that whatever happened, the UK would remain a member of the single market, which is not the government’s plan.
  9. Two of the four constituent countries of the United Kingdom voted overwhelmingly to remain in the EU, and the UK leaving would amount to them being dragged out against their democratic will.
  10. The electorate was misled. Deliberately and repeatedly misled.

Detail

1. MPs have a duty to do what they think is right and in the best interests of the UK.  

  • It is not democratic for an MP to vote in favour of something they believe or know to be damaging to the UK and its population.
  • To do this would be an abrogation of their moral and democratic duty.

2. The referendum was not an election, the result of which could be reversed at the next general election. 

  • It is also not a standard piece of legislation that can be revoked by future parliaments
  • Leaving the EU will be irrevocable and will affect every person in the UK for the rest of their lives.

3. Democracy does not begin and end on a single day.

  • It is not clear at all that, as the realities of the UK leaving the EU become apparent, it would continue to be the will of the people to do so.
  • It is patronising and childish to deny people the right to change their mind in light of new information.

4. Large numbers of people were denied the right to vote in the referendum

This included:

  • EU citizens permanently resident in the UK (3 million approx);
  • 16 and 17 year olds, who had been eligible to vote in the Scottish Independence referendum in 2014, and who the Government said it would have been “too complicated” to allow to vote in the EU referendum (1 million approx);
  • and UK citizens living in other EU Member States for more than 15 years, including those employed by the EU institutions (1 million approx, though possibly many more).

5. The referendum result was close, and insufficient for such a large, irrevocable constitutional change.

  • Of those eligible to vote, only 37.5% voted to leave the EU, meaning 62.5% did not vote to leave.
  • While people on both sides talk about the 17 million for, or the 16 million against leaving, the reality is that only 1.3m people out of a population of 64.1 million effectively decided the entire future of the UK.
    • Almost all other countries require either 50% of the electorate or 60% of those who vote for major constitutional change.
    • The reason this was not required in this case is because the referendum was advisory, and it was therefore unnecessary.

6. Parliament had decided that the referendum was advisory.  

  • The legislation passed by Parliament was clear on this. The referendum has no constitutional status in the way that it would in, for example, Ireland.
  • MPs were made aware of this by House of Commons briefing papers before passing the Act, and this is in the public domain.
  • MPs could have chosen to make the referendum binding, as, for example, the Alternative Vote referendum was, but they chose not to.*

7. It was and is unclear what leaving the EU would mean. 

  • It could mean anything from being in the EEA and EFTA, which would require freedom of movement and EU laws, but would be less economically damaging, to a complete break (‘hard’ or ‘dirty’ Brexit) which would not require freedom of movement, but would be extremely economically damaging.
  • Those who voted Leave were therefore voting for a very wide spectrum of possible outcomes, not a single one.

8. The 2015 Conservative Party manifesto was clear that whatever happened, the UK would remain a member of the single market.  

  • The government’s position on freedom of movement makes this impossible to achieve.

9. Two of the four constituent countries of the United Kingdom voted overwhelmingly to remain in the EU, and the UK leaving would amount to them being dragged out against their democratic will. 

  • In the case of Scotland, this may be contrary to the Act of Union of 1707 which formed the UK, and, in the case of Northern Ireland, will undermine the Good Friday Agreement, which is an international treaty with Ireland which rests on EU law.
  • It may also lead to the new EU external border between the UK and Ireland becoming a hard border, contrary to this agreement.

10. The electorate was deliberately misled.

  • Serving Government ministers and MPs from both major parties in the Leave campaign, including the current Foreign Secretary, repeatedly and knowingly lied to voters on many aspects of the EU.
  • This included the famous £350m claim, but also many others such as claims that the UK did not control its own non-EU immigration, that the EEA could be joined without agreeing to free movement of people, and that trade deals with third countries and even with individual EU Member States could be entered into immediately after the vote.
  • When consumers are misled, the law seeks to protect them and for restitution to be made.  We do not blame them for believing untrue claims, and nor do we tell them that they are stuck with the product they bought under false pretences.

*This has been amended as the post mistakenly said that Referendum on Scottish Independence was legally binding.  It was, in fact, not, and would have also required an Act of Parliament had the result been Yes.  The 2011 referendum on replacing First Past the Post with the Alternative Vote system was  however legally binding.  Thanks to Austin Harrington for the spot!

20th September 2016 – Second Referendums and other myths

 

One party, and one potential (although unlikely) party leader have called for a second referendum once the ‘deal’ for the UK leaving the EU is agreed.  While it is laudable for people to want this, and understandable that pro-EU politicians would pin their colours to this mast, I think it is, regretfully, a red herring.  Once the UK invokes Article 50 the UK is almost certainly leaving the EU, and a referendum on the final deal would be effectively pointless.

Article 50, par.3 of the Lisbon Treaty is very clear that:

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

So, once Article 50 is invoked, there are 3 possible outcomes:

  1. An agreement is reached, and the UK leaves the EU at the date at which it has agreed it will enter into force.
  2. An agreement is not reached within 2 years of invoking Article 50, and the treaties simply cease to apply to the UK.  i.e., it has left.
  3. An agreement is not reached within 2 years of invoking Article 50, but the other 27 Member States agree unanimously to extend the 2 year period.

Let’s say that an agreement is reached within 2 years of invoking the treaty (which in itself is desperately unlikely).  The UK would then have to tell the Council that it was agreed in principle, but could not be formally agreed until a referendum was held on it.  We then have two possible outcomes.  The referendum vote is for the deal and the UK leaves on the date it enters into force (a), or the referendum result rejects the deal.  If the latter happens, then either (b) or (c) would apply

If (b) applies, then the UK simply leaves the EU without a deal.  What about (c)?  I think it is fair to say that it is extremely unlikely that, having had the UK put the EU and its Member States through 3 -4 years of uncertainty, massive financial and economic cost, and tortuous negotiations, that the 27 will be in the mood for throwing the UK a bone and extending the negotiating period.  Why would they?  They are already clear signs that the EU is accepting Brexit and trying to move forward with the EU.  Why would they condemn themselves to more uncertainty and tortuous negotiations to help a country that has rejected them.

That’s on an EU-wide level.  You also have the issue of individual Member States and groups of Member States.  By then, Sarkozy may well be in power in France, having run partly on an anti-UK ticket.  Merkel, the UK’s biggest advocate in the EU may well be gone.  Spain will not be looking to play nicely now that they don’t have to respect internal EU niceties with the UK over Gibraltar.  If the Eastern Member States feel they are being cajoled towards a deal that limits free movement for their citizens they will not agree to extend the time limit so it can be done.

That leaves two other possibilities.  Firstly, there could be a referendum before the deal is finalised.  This would be suicide for whichever government did it, as they would have no mandate either way if the deal changed.  Secondly, there could be a referendum that included a “stop this insanity and remain in the EU” option.

If the Remain result won, then the UK would be in the position of having to try to withdraw their Article 50 notification.  Legal opinion is split right down the middle on this.  I’m not saying it’s not possible, but there would have to be agreement among all Member States that the process should be halted while the legality of this was sorted out, possibly through European courts if there were any legal challenges to it.  So, hedging our bets on being able to do this is exceptionally risky.  And why would any other Member State want to agree to this anyway. The UK has rejected the EU, pissed them about and then (probably) been absolute arses to negotiate with. Sarkozy (or any French President for that matter) would not want to go back to Paris and tell the people of France that it’s fine now, the UK have decided to stay and we’ve agreed.

The 27 would accept a PM telling them that Article 50 will not be invoked, if it is done in the next year.  In return, the UK will have to put it’s tail between its legs and beg forgiveness for the shitstorm it caused, but this, and the 10 years or so of getting nothing it wants in the EU is still the least bad option on the table.

Once Article 50 is invoked, the UK is leaving the EU, and all of our efforts should be dedicated to making sure this does not happen.

8th September 2016 – A Note to Guy Verhofstadt on being appointed chief Brexit negotiator for the EP

[Posted on Guy Verhofstadt’s Facebook page]

Congratulations. You are the perfect person for this job.

On behalf of Brits, could I respectfully ask you to bear the following in mind:

1) 48% of those who voted wanted to remain in the EU and are now being utterly ignored by their own government;

2) Two of the four countries of the UK voted overwhelmingly to remain in the EU and are being dragged out against their will;

3) Millions of UK citizens who have lived abroad for more than 15 years, including many European civil servants were denied the right to vote;

4) EU citizens living in the UK were denied the right to vote;

5) The referendum has been described as having “glaring democratic deficiencies” by the Electoral Reform Society;

6) Whatever they tell you, the only question on the ballot paper was on membership. There is absolutely no mandate from the referendum for the British government on individual aspects of the negotiations;

7) It is far from clear that an Article 50 notification without the agreement of the UK parliament would be “in accordance with its [the UK’s] own constitutional requirements”.

8) do not try to appease a spoiled child by giving them more. it will never be enough to satisfy them.

Many thanks as ever for your superb work.