The Big Green Button Bill

“There’ll be rioting in the streets,” I’ve been told over and again, “if the result of the Referendum is ignored.”

But here’s the thing.

There’s no good outcome from this. There are only more and less bad ones.

The promises the Leave camp made to voters – that immigration would (in some sense) stop or that £350m per week would be available to spend on the NHS – have already been jettisoned. But these are only small things. The Leavers had no plan. David Cameron has resigned and no one is running the country. Day by day our economy is bleeding out. When these things eventually come to sound in a huge hit to investment and economic growth and public finances; when Project Fear is revealed to be Actual Reality, and benefit spending is slashed, and hard working voters find they’ve lost their jobs, and there is less public money available to spend on the NHS, and class sizes grow because there is less money to spend on schools… what then?

How will disenfranchised voters then feel about the promises that were made about how their lives would improve? Promises that were not merely broken but were revealed to be exactly the opposite of the truth? What then? Could there then be rioting on the streets?

These are not my fears alone. Speaking before the Referendum – and in lines I quoted repeatedly before its outcome was known – Donald Tusk, President of the European Council, said this:

As a historian I fear Brexit could be the beginning of the destruction of not only the EU but also Western political civilisation in its entirety.

Of course, it is not for me, or anyone else acting alone, to choose where we now go. That is a choice to be made by whatever our democratically elected Government comes to be. Acting consistently with the rule of law. But I write these lines in order to explain that my conscience is clear in acting, so far as I can, to reverse the result of a referendum, and as soon as possible.

One important idea emerged yesterday on the blog of the UK Constitutional Law Association (and I do encourage you to read the important blog post to which this post is indebted). And it is this.

The process of leaving the European Union begins with us formally notifying the European Council of our intention to leave the European Union. But who is it – exactly – that does that notifying? Who gets to press the Big Green Button?

Among the powers held by the Prime Minister are a collection of powers left over as a relic from medieval times when they were exercised by the King or Queen. Constitutional lawyers call them the Royal Prerogative. The Royal Prerogative is used to conclude – and relevantly end – treaties with foreign states.

But there is a funny thing about the EU Treaties that make up the legal framework of the European Union. They are given effect to in the United Kingdom by an Act of Parliament: the European Communities Act 1972. And whoever presses the Big Green Button will, in effect, denude that Act of content. They will render it, by commencing a process that concludes with our withdrawal from the European Union, an empty vessel. A dead parrot. And the idea that the Prime Minister, by her or his action, might be able to destroy an Act of Parliament is one that suggests we are less democracy and more dictatorship. As it was put in The Case of Proclamations of 1610 :

  …the King by his proclamation… cannot change any part of the common law, or statute law, or the customs of the realm…

So what does all of this mean?

It means that pushing the Big Green Button might not be something that the Prime Minister can do. It might instead require a new Act of Parliament – a Big Green Button Act. And if we do need a Big Green Button Act, Parliament would need to choose to have it. MPs would need positively to choose to have it. MPs including your MP.

This image taken from here shows the declared positions of our MPs on the 22nd of June.


As you can see a huge majority backed ‘Remaining’. Of course, there is a difference between, first, the outcome that an MP might have preferred before the outcome of the Referendum vote was known and, second, how an MP would choose to vote on a Big Green Button Bill after the Referendum vote was known.

You may think that the outcome of the Referendum should dictate how your MP should vote.But (wrote Edmund Burke, the political theorist) what your MP owes you is:

not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion

And Parliament is a place:

where, not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole.

So how, in practical terms, would your MP vote in a Big Green Button Bill?

MPs inclined before the Referendum result to vote Remain and who live in areas – in particular Scotland and London – which supported Remaining may feel little difficulty in voting against a Big Green Button Bill now. The (relatively small) number of MPs inclined to vote Leave and in areas that support Leaving will feel no difficulty in voting in favour of such a Bill now. But, at least I would say, an MP in a Leave area whose judgment told her or him that Leaving would be bad for the United Kingdom – bad for its economy; bad for the the Union; bad for jobs and the NHS and education; bad for its place in the world; bad as heralding the arrival of racial intolerance; and, yes, bad for the long term future of democracy – should vote against that Bill.

And, whatever the outcome in the House of Commons, to pass, a Big Green Button Bill would also need to be approved by the House of Lords.

And if the Big Green Button Bill did not pass then we could not begin the process that concluded with us leaving the European Union. Absent further action, we would Remain.

In the coming days I will take legal advice from our leading constitutional lawyers. I have already begun that process. If the advice is that pressing the Big Green Button may or does require new legislation, I will then consider what to do. Should we seek a declaration in the High Court, and then (by way of leapfrog appeal) the Supreme Court that a Big Green Button Act is required?

61 thoughts on “The Big Green Button Bill

  1. As to Jolyons post above stating:
    1 Political reality could trump constitutional rulings
    If a PM invoked Article 50 and a constitutional court then ruled s/he had exceeded their powers, but meanwhile, the EU would still have received the notification and is entitled to act on the request of a Government that has (in their view) decided to apply to leave. The UK’s internal agonising over whether it SHOULD have done that would not be a real issue.

    well, in that case the EUCJ would then need to rule whether the EU Commission could legally accept the article 50 notification and whether that acceptance was in effect legal based on the fact that it wasn’t provided using the UK constitutional process.

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  3. This is a great piece, thank you, but I am worried the proposals you put forward merely delay an exit, they do not prevent it.

    That’s because the two major parties would, in my opinion soon enough be wiped out at a general election if MPs choose to reject the advisory referendum. They won’t last be able to hold on to power.

    It seems to me that again the establishment fails to learn from two basic mistakes:

    1) That a perceived lack of representation in EU decision making breeds a protest vote. IGNORING A PROTEST VOTE MAKES IT EVEN LARGER.

    2) That bailing out the banking sector in 2008 and covering it up with money printing has boosted inequality and this too breeds a protest vote. And yet since June 24th we have fresh promises of even easier money conditions from Carney, Draghi, Kuroda et al. Witness global financial assets which are trading back towards their all time highs cheering on the coming recession. RATE CUTS IN RESPONSE TO A PROTEST VOTE MAKES IT EVEN LARGER.

    I worry the reaction to Brexit by the establishment is, ironically, going to make it even more likely here and elsewhere.

    Or said another way by someone else: However beautiful the strategy, you should occasionally look at the outcome…

  4. Good work. Have you considered investigation into a Judicial Review to examine the extent to which the voting may have been corrupted by deceit, misinformation and false promises?

  5. by whom? both sides made future based claims – all subjective
    no side made promises, how could they. promises can only be delivered by governments. this was not an election. so we had two views of the future outside the EU – one positive, one negative – there was no real case made for a positive future within the eu – because there was/is no case to be made

    the point is…

    despite all the best efforts of the elite to frighten the masses & youth into fearing freedom, we just didn’t buy it

    suck it up – get on the train – we have a new route to take

  6. Anyone saying “suck it up” in response to a comment risks negating any personal credibility in the debate. However, in response to your apparent question at the start of your post, I’ll note that it is almost universally accepted that the Leave camp ‘told porkies’ orders of magnitude larger than untruths that came out of the Remain camp. Key planks of the Leave campaign have been shown to be utterly untrue, and much of what ‘Leavers’ dismissed as scaremongering by Remain has been shown to be fact.

  7. This is complete nonsense.
    Both sides made future based claims – which must on all accounts be seen a projections of possible visions. We weren’t electing governments. Both sides exaggerated: Osborne said, emergency budget, tax increases would follow immediately – there have been no such things and he has moved to cut corporation tax. Cameron said he would immediately invoke article 50 in the event of a leave vote – instead he chose to leave himself without following through on his promise. You seem to think voters have no capacity to see beyond the spurious claims and crystalise opinions based on principles. I believe the UK electorate is street-smart and savvy. We expect politicians to lie to further their positions, it is par for the course. Nevertheless, we should celebrate the largest exercise in political democracy ever undertaken in the UK – 17Million people have never voted for anything ever before. And al though the margin was relatively small, it was larger than the % who voted, successfully, for a wELSH assembly.
    I agree though, there should be another referendum
    In 2060

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  9. Wake up and smell the coffee..sure you have a very expensive italian machine!
    The People have spoken..
    Your arrogance of dismissing the people beyond the london elite
    is offensive.No regard for for the common people…like us..
    So you want a second referendum……
    Reading the comments on your blog you are preaching to the converted.

    And you seem to have great concern for the people of the Crown Dependencies..But
    You did not raise concerns about the endorsements on Channel Island passports”No right of abode or employment in the EEC/EU for Jersey born people unless they had a grandparent or parent born in the UK.
    5 years residency required in uk..bit like our European cousins really
    Think that endorsement was for the conveniece of the City of London and the captured Channel Islands ,,, 5 years under the Jackboot….again!!
    and I thought you were a Socialist..or you said you joined the party!!!

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