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.

Capture

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. Very interesting point challenging the presumption that Article 50 invocation may need more than the PM exercising preorgative powers as it cancels a statute…
    An additional question, made in comments elsewhere, is this;
    Art.50 is drafted in such a way as it (appears) it can only by invoked once a member has “decided” to leave the EU. Does the outcome of the advisory referendum, that Parliament appears to have ensured did not trigger automatic legislation (unlike the recent AV referendum), amount to a legal decision on its own?
    If not, what PM can tell the EU that the UK has “decided” to leave without the express will of Parliament added to the (current) advice of the nation.

  2. The referendum on its own, quite clearly, doesn’t trigger Article 50.

  3. @laypersonlaw

    And it has been argued by some, like David Allen Green, that the EURef was *deliberately* designed to be non-binding.

  4. There is a very clear message from voters to the Westminster Bubble. If the chasm between the two is not to become unbridgeable with extremely serious consequences, that message must be respected. Legal manouevring will simply give elitist metropolitan lawyers an even worse name than they have already…..deservedly. There will be some interim economic turbulence but it will settle down. It is not as if remaining was plain sailing economically. And MPs, who have put careerism and the wishes of party whips first cannot hide behind Burke, who lived in an era when universal suffrage was unthinkable. An age for which Ken Clarke and Michael Heseltine yearn.

  5. For what it’s worth, I am launching a parliamentary petition to ask that legislation be introduced requiring parliamentary consent before Article 50 is triggered. My reasoning is that our next Prime Minister will be selected by a majority of just 0.003% of the electorate (Conservative Party members) and that he or she therefore lacks the democratic mandate to make the single biggest decision a Prime Minister has faced in a generation. It is only right that a decision which could lead to the dismemberment of our union with Scotland, the reintroduction of a militarised border between Northern Ireland and ROI, economic uncertainty on an unprecedented scale, legal limbo for the best part of a decade as 17,000+ laws are repatriated, and a permanent weakening of the country’s international standing should only be taken with the democratic oversight of a properly elected parliament.

    In theory there is no reason parliament could not bind the government this way, and indeed I can imagine such a bill would get enthusiastic cross-party support given the uncertainty in both parties about who may end up leading them.

  6. Pingback: Tax Research UK » Does any prime minister have the right to invoke Article 50?

  7. Has this been sent to every MP, MEP, Commisioner and EU Council member? I shall be sending this to John Bercow who is my representative in Parliament.

  8. So your position is that the referendum be ignored because the majority of MPs are not in favour?

    Kicking it into the long grass because Westminster does not like it will only serve to exacerbate the divide between the electorate and their Representative.

    And that in turn could cause far more serious issues.

  9. I’ve addressed that point in my post

  10. Jolyon – The Leave camp had one single message which was overarching above everything else – and there has been no misrepresentation. It was “Take back control”. The attitude of Remain has been that everyone who voted Leave was ‘stupid, dumb working-class, racist, bigoted – we were people who couldn’t do joined up writing or simple sums’. But those of us who had seen the Five Presidents’ Report and who knew what was coming down from the EC post a Remain vote in the UK believe that this was a ‘Five Days in London” moment http://www.publishersweekly.com/978-0-300-08030-8
    The Brexit vote has meant that the British economy has caught a cold. But by failing to have democratic reform, the Euro zone has caught pneumonia. That is what the markets are saying.

  11. “in effect, denude that Act of content” – the ‘in effect’ there is problematic because it looks to the telos and as we know, Art 9 BOR 1688 tells us no judge may inquire into the proceedings of Parliament. The case of proclamations if I remember right, involved the Lord Chief Justice telling off the king for being uneducated in law. I don’t think same applies to our current executive. I’m not sure the judiciary today would be willing to inquire into Parliament on normal matters, let alone economic matters following a plebiscite. Wish you were right.

  12. Well, I’ve spoken informally to a leading Public law Silk – and will take formal advice from another. And the folks who wrote the post were no mugs…

  13. This is a crisis. An all party govt of national unity needs to be formed, anti Brexit and anti causes of Brexit – austerity! People suffering under austerity have been told the real causes are not govt policies but immigrants taking their jobs. It is not surprising that after years of demonising immigrants and attacking Brussels that people voted out. Govt (and media friends) has caused this. We need a govt who can lead and secure the future of all people in the country

  14. Could this end up at a European Court? Wouldn’t that be ironic?

  15. It seems to me that we may not be able to leave the EU without another referendum.

    One of the first things that David Cameron did 6 years ago was to enact a referendum lock on any new or substantially changed EU Treaties. Surely the UK withdrawing from the EU could be considered the ultimate treaty change?

    If that is the case then, once all of the negotiations have been completed, by that lock we would then have to have a referendum on whether or not to accept it.

    I have not researched this, but it’s just something that has been going round in my mind the last few days and it’s something that I would like to see others, more knowledgeable than me, look in to.

  16. I have all along thought that Cameron’s resort to a referendum to sort out his problems with his conservative MPs was in direct conflict with the notion and principle of representative democracy. We elect our MPs to take decisions relating to the polity and do not leave it to simplistic yes/no decisions taken by those who have already passed on the responsibility in a general election.

  17. It is worrying that some sections of the London Metropolitan intelligentsia share the mindset of the French aristocracy in June 1789.

    It is early days but Brexit may have cast a light on the appalling economic and humanitarian mess in the Eurozone. This mess long predated last Thursday. Italy’s banks now seem to be the canary in the coalmine.

  18. It could. If the PM purported to press the green button I think it could be a question for the court in luxembourg whether her or his action met our constitutional requirements.

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  20. I believe it is definitely possible and acceptable to both take account of the results (ie not ignore them) and NOT trigger the Article 50 which is crucially important. But it will take huge leadership and guts from the politicians to stand up and say – “I know slightly more than 50% of you voted for this but I believe the consequences are simply too grave to pursue, and I think we should focus on your objectives while remaining”. There is an argument also to say that voters were lured to vote on lies, that the referendum should never have taken place and that it was badly structured with no clear idea of what a ‘decisive’ outcome should be, and no clarity on follow up. Also the issue of 16-17 year olds being excluded.

    OR we offer voters a second referendum which is ‘Remain’ versus ‘ACTUAL PLAN for Brexit’ – ie what our agreed status would be post Brexit. This is more difficult if EU leaders will really not discuss before Article 50 but let’s see. I hope they are more pragmatic.

    I have also started a Petition on Gov to request No triggering of Article 50 but it is not yet live.

  21. Looking at this from a slightly different angle, but with equally serious constitutional implications: by withdrawing from the EU, I will have my EU citizenship taken away from me. Is it possible under English law to remove someone’s citizenship. Doesn’t that require an Act of Parliament?

  22. It is so important and the referendum so close, this needs to now be sorted out by our elected politicians!

  23. I for one will never accept another vote just because it was not what some people wanted to happen . as far as I can remember this country was a democratic country . if this is not the way then we have what . the person with the biggest stick wins . we may not have bothered fighting the last war so what then a totalitarian state or civil war god forbid we go down that road . so let it be let the leaving go ahead and in ten wears or more apply to re-enter the eu . again. that well mean that the generation that voted will be predominantly younger and it may suit them differently who know but it may be the only way forward.

  24. Pingback: The Big Green Button Bill « Dr Alf's Blog

  25. If the result of the referendum was meant to be binding shouldn’t that have been declared in advance? It was specifically not declared to be binding, only advisory. That must have consequences, the most important being surely that Parliament can/must review the result in the light of wider circumstances and interests, including the effect of the decision on the unity of the UK and our treaty obligations to important allies. Not to do this would be an abdication of Parliament’s responsibility.

  26. Excellent work. You’ve made good progress. You’re giving me hope, you have my support

  27. Thank you

  28. Pingback: Brexit – Day 5 – “Cameron, the greatest PM we’ve had” – brexitthroughthegiftshop

  29. I’m a 10 year qualified commercial solicitor but no constitutional law specialist. Sounds like you’re putting a great team together. Please do keep people up to date if there is any way we can help at all. GRQC’s article in the Guardian yesterday was great, I have already written to my MP twice. I note the crowdfunding platform is to be launched tomorrow, but please let us know if there is anything else.

  30. There is of course, another way to Remain, not leaving the decision to MPs. Call a general election, and candidates could run on a “Remain” or “Leave” platform. Practically, this would mean committing to invoking Article 50, or not. The voters would decide once again, but this time around their vote would have direct consequences.

  31. It’s a worrying thing when people think that a vote of 52% against 48% in some way provides a clear mandate for leaving the E.U. Too many people seem to perceive the result of the referendum as meaning that we must leave the E.U.

    Clearly, for something this important, an overwhelming majority should be required in order to act upon it. Not a 4% majority of 72% of all possible voters.

    I think Cameron resigning was a masterstroke. Absolutely the right thing to do. Not only buying some time to sort this mess out, but also helping people to realise what a total mess has been created.

    Furthermore, any politician taking us “forward” from here to push the green button should first have to be voted in with a clear mandate from the electorate. The idea that Boris Johnson or anyone else might become an unelected prime minister who takes the U.K. out of the E.U. is clearly disturbing.

    The E.U. needs to take a look at itself and stop trying to march to monetary and political unity. The Euro has already caused too much chaos. If that gets fixed, I wonder how many of those people that voted Leave would change their vote to Remain.

    I think that this referendum has also shown that England is not as multicultural as many people would like to think it is.

  32. For those commenting, understandably, as some have here that (in essence) anything other than invoking Art50 would be undemocratic, perhaps even anti-democratic, consider how much more there is to our democratic process than boiling complex issues down to simple yes/no questions. Or even, as in this case, yes/who knows. Burke wrote more persuasively and elegantly than most on the nature of the role of representatives in our system and, if we wish our system to endure, we should be mindful of upholding essential principles of it, incuding rule of law and much-vaunted Parliamentary Sovereignty.
    The inherent contradictions in voting leave in an advisory referendum because you want our Parliament to be Sovereign yet protesting when it decides, as it may and likely should, that only Parliament can “decide” to leave the EU, are surely obvious. You can’t defend Parliament’s rights by denying them.
    Doubtless this Parliament will take heed of the views of the people as it makes its decision and members will suffer or enjoy the consequences at the next election. That’s Parliamentary Sovereignty in action. We should protect it.
    If the task falls to a future, post-election, Parliament then that Paliament may feel less bound to take heed of that opinion, especially if the issue at hand has been the subject of further debate at an election and newer, more-informed, mandates secured. Another principal we relinquish at our peril is that a current Parliament is sovereign over all predecessors.
    The extent to which the referendum result has LEGAL force is only the extent to which the Sovereign Parliament has devolved or vested that power to the referendum outcome. It seems clear that this referendum did not have such devolved authority and so, unless the PM can rely upon prerogative powers to invoke Art50, and can also claim that a “decision” to leave has been made in accordance with the UKs constitution (it hasn’t, legally speaking, if the referendum alone does not have legal force), then we are not discussing whether we think Parliament should or should not discuss this on pragmatic merit. We are pointing out, as a matter of constitutional law, it may have to.
    Better to cite the referendum outcome in imploring all MPs to support Brexit when the time comes, if that is your view, than to cite it to deny Parliament its constitutional right and obligation.

  33. In 2011 Phill Woolas’ election was overturned by an electoral court after the nature of his campaign was questioned, more recently an unsuccessful attempt was made to overturn the election of Alistair Carmichael; is it possible to make a similar legal challenge regarding the validity of a referendum result?

    I am not suggesting that I know of any grounds for mounting a challenge to the result, just asking if it is theoretically possible.

  34. This is stupid if brexit people did this if remain won they would have been slapped down. Except the UK decided. The EU is falling apart hopefully we will be out before it happens. I am sick of the EU telling us what we can and cannot do. In a few years all those asylum/immigrants will get passports and were do you think they will be coming UK. Nearly 2 million more in this country. Things will get better over the next few weeks.

  35. The top blogs right now are all about Brexit!

    As someone with a blog dedicated to Theology and other material it is so far off my expertise.

    What I can say is that as someone in Canada we are all watching this very curiously.

    There are some really big movements in global politics and certain shared themes at this time.

    All I can say I guess is that I wish the people of the UK the best. I hope however this plays out that there isn’t a lot of pain or jobs lost or families put in tough situations.

    – TSP

  36. thinking that this referendum has also shown that England is not as multicultural as many people would like to think it is.

  37. Jolyon

    Two thoughts:-

    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.

    2. Stealth could kill

    If a posse of “remainer” MP’s tabled the motion that Article 50 be enacted, this would force a motion, a debate and a vote in the House. Neither the proposer, seconder or supporters of the motion have to vote for it.
    There is at least one precedent when, in 1969, Home Secretary Jim Callaghan tabled a motion (because the law said he had to) on parliamentary boundary commission recommendations. All the Labour MP’s including ministers voted against, killing the bill.
    It’s hard to believe that a majority would approve an action that your post clearly shows the overwhelming majority are opposed to.

  38. I’m not a lawyer so could you please clarify something for me? The High Court declaration and leapfrog appeal etc – is this effectively a preemptive judicial review? And are courts happy to answer hypothetical questions? Thanks

  39. It is like a pre-emptive judicial review. If it was hypothetical they wouldn’t answer it. But here the perception is, it isn’t hypothetical…

  40. So a majority of 1.4 million people is not a majority? Sometimes I read things on the interweb and I really have to take them with a huge pinch of salt. This is one. It’s like all the remain people who are clued up and a tiny bit savvy are conspiring to essentially stick 2 fingers up at the voting public because ho-hum, they lost by 1.4 million votes. Now i can accept the percentages are quite close, 52% to 48% but for someone to suggest that 4% is not a majority looks a bit like sour grapes to the general populace. Hey why not blame the general populace for being idiots? That might help accelerate your cause. Can I suggest that even if their is a legal challenge to this victory for so-called Brexit, that it will then be challenged itself in the European Court and that indeed would be the ultimate irony. Having the European Court rule in favor of Brexit. It would be glorious.

  41. I’m fascinated that this debate is operating at two levels, the political/legal debate, and the “it’s not fair if they don’t listen to us” level. Brilliant!

  42. I think we all know what a divisive campaign the Leave camp ran and how they have already broken their word on what was promised. I don’t understand how everybody is suggesting that it was a democratically made decision, and we must accept the will of the people – it wasn’t democratic at all – the electorate were completely misled to defy their leaders. A large contingent of Leave voters regret voting leave now, because they didn’t realise what the consequences might be and didn’t realise the finality of their vote and that there was no plan in place for Brexit. I believe that things would be very different if this referendum was held again now that people can see what the impact of it is. MP’s should wake up and contest this undemocratic travesty as being baseless, and just about the worst possible outcome for the UK. Nobody seriously wanted the UK or Europe to completely fragment on account of their vote. This must be fought. The leave campaigners did not play by the rules, so why should the electorate accept the outcome ? They simply shouldn’t – this travesty must be fought – otherwise it will lead to years of misery and financial hardship, not just for UK citizens, but for the whole EU.

  43. What is the current opinion of the Lords?

    Any indication?

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  45. There is a number of people who voted for a Conservative Government at the last general election who are now saying we have made a grave mistake to leave the EU.
    It should be pointed out to all those people including Mr. Cameron that the only way we were going to leave the EU was to vote for a Conservative Government at the last election.
    So lets stop trying to find people to blame, all Tory voters knew what was in the manifesto, and all Tory voters knew that where we find our self’s now was a possibility.
    I am not saying that how they voted was wrong but people in glass houses should not throw stones.
    As they say The Buck Stops Here.

  46. What is the current opinion of the Lords?

  47. We don’t know. But there is a Lib/Lab majority – and I know for a fact there are Tory Peers who would vote against a Bill to Leave.

  48. Jolyon.
    Thank you for another great article.
    I’m wondering whether the European Union Act 2011 will come into play. In particular s2 and s6 which refer to the nee to hold referenda for new treaties and amendments to existing treaties.
    Aren’t parliament compelled by this Act to put treaty amendments to the people?

  49. The result cannot be ignored for in so doing, whether it leads to violence or not, it resolves nothing. Not for us nor for our EU partners. Let’s put ourselves in their shoes for a moment. When they see Britain, from our earliest moments, they see a country with a significant pool of euro-scepticism. A semi-detatched neighbour who continually complains about the federalist noise next door.

    We are a handbrake on the ambitions of Europe. They put up with us because we are a net contributor and because, they have to….or at least they did. The Brexit genie is released from the bottle now, there is no hiding or pretending it doesn’t exist or it is a fringe opinion of the far right. 52% of people voted leave despite the greatest scaremongering and political arm twisting ever seen in history: all major political leaders, banks, US president, celebrities all weighed in with their visions of doom and still people said leave.

    Going back with our tail between our legs…”remember we said we wanted a divorce? Only Joking…” means we can forget short-term renegotiations of anything. Cameron’s EU-lite will be transformed into full-on federalism, the EU army etc “bring it on & suck it up”. The EU will insist on it: “no more negotiations” – they are fed up of our behaviour (fair really – why hold membership of a club you don’t want to be in?)..but in their hearts they know the UK not leaving today, only leads to a more difficult departure tomorrow.

    Both sides exaggerated their claims and Remainers hid a few ugly truths that will become impossible to conceal in the coming months & years. The EU knows that allowing us to stay is now leaving an unexploded & growing ticking time bomb in the heart of Brussels. It is going to blow, the only question is when.

    Back home we have other challenges. What is a legitimate vote? If majority governments can be elected with less than 50% of the electorate, how can any vote of 50%+ carry less legitimacy? And what if we have a 2nd referendum and the result reverses? Will Brexiteers accept this as legitimate? Do we have to have a 3rd, 4th, 5th referendum? Challenging the leave result damages democracy & means future elections results may be at risk of rejection

    Divorce is always painful, but it isn’t the end of the world. Now is the time for decisive and purposeful leadership. The people have spoken. We are leaving. This non-sequitur has to be accepted by all parties and new debates & policies flow from here. Dithering is disaster and leads to the crisis of leadership we are witnessing right now. We need some grown up politicians to say “ok, we are on a new path, let’s get on with it, it’s going to be just dandy”

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