To think this could mean the end of brexit?

[jdoe8]

Now MPs will be able to block it. Could this be the end of this ridiculous brexit? MPs can not vote for something that they think will not be in peoples interest and its very clear the people that voted to brexit would be the ones worse off.

JO'B is doing a fab job on LBC today and most brexiters seem to be happy that it might not go ahead as they were fooled by lies!

Yes Larry.

www.gov.uk/government/publications/why-the-government-believes-that-voting-to-remain-in-the-european-union-is-the-best-decision-for-the-uk/why-the-government-believes-that-voting-to-remain-in-the-european-union-is-the-best-decision-for-the-uk

says:
" It’s your opportunity to decide if the UK remains in the European Union"
"This is your decision. The government will implement what you decide."

and not, you vote and we will consider your advice.

But as with my conversation with Offred above, as the Parliament is above the law (it is sovereign) in the sense that the courts cannot bind the parliament, it is morally and politically binding but not legally binding.

If HoL blocks it then there shall be an additional manifesto in the GE2017.

Nat,

It clearly was advisory in law. I am not questioning the high court. It was never intended to be when Cameron got parliament to vote on the referendum.

Had that been the intention, it would have been openly and vigorously debated prior to the referendum. It wasn't.

Cameron fucked up: simple. However, as I said, if parliament goes against the referendum it will end up being a Pyrrhic victory.

At the moment, Parliament aren't planning to go against the Referendum. It is legitimate for them to ask for broad outlines of the terms we seek - as someone said on one of these threads - Leave isn't a simple option, do we try for EEA status, EFTA status, something between the two, if possible, or WTA terms?

I hear you Larry.

However does the end of the Lords (those unelected people deciding for us) as you put it mean the end of Constitutional Monarchy? And the end of the United Kingdom when Scotland goes its own way?
Where do you stop?

We have been hammered over and over again with this want of "parliamentary sovereignty", now that we have the chance to use it, suddenly it is not good enough? So what is it that you want? Please extrapolate because I don't get it.

Whatever the rights and wrongs of the House of Lords, I for one have been glad of them over the past few years. They have had time to scrutinise poorly drafted legislation and, not being worried about losing their seats at the next election, have been more impartial.

Peregrina,

I agree. I also trust both houses to be sensible over this, regardless of their personal views.

And it will be positive for the type of exit to be openly debated.

Peregrina, that's one of the reasons I actually agree with the House of Lords being unelected - nobody is making decisions with a separate agenda relating to their re/de-selection.

Mollie - parliament can legislate to bring us into Europe without having a referendum. People might want to be consulted in a referendum and might want referenda to be run differently but it does not render an act of parliament illegal.

Offred

This is purely an academic constitutional chat.

So BBC here
www.bbc.co.uk/news/uk-politics-uk-leaves-the-eu-36671629

"However, it seems constitutionally inconceivable that Parliament would fly in the face of the Leave vote secured through a national referendum and refuse to pass an act that gave the prime minister authority to begin the "divorce" process."

And In a 1969 case Madzimbamuto v Lardner-Burke [1969] 1 AC 645, 723

"It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them, the courts could not hold the Act of Parliament invalid.

So, there are some questions whether refusal to endorce the referendum will potentially become unconstitutional although in 1969 (so that is 46 years ago), the Judge held that Parliament can do things that are politically and morally questionable. That view may have changed since then if contested.

Re the first point - yes, you basically agreed with me over that earlier. Not legally binding but politically and morally binding potentially.

The second point - I don't get what you are getting at. Parliament can of course do things that are questionable. That is a point I made earlier. My point was parliament didn't make the referendum legally binding (re 2016). Referenda are not legally binding in the U.K. (Usually though could be if parliament legislated to that effect) because of parliamentary sovereignty.

And the quote from the case you cited is about parliamentary sovereignty i.e. That parliament can act in a way that is questionable and it will be legal because of parliamentary sovereignty. It doesn't apply in any way to referenda.

It would be unconstitutional for parliament to ignore a binding referendum (unless they legislated afresh to ignore it) but that isn't the case here. The referendum was advisory. It was a referendum which is subject to parliamentary authority.

If parliament chose not to follow the vote in a non binding referendum there would be absolutely nothing unconstitutional about that.

Is it really acceptable for parliament to overrule the will of the people. Its sounding like we live in a banana republic. Why, just why.

Is it really acceptable for the government to impose such far reaching change on the country while rejecting parliamentary scrutiny?

Parliament isn't going to overrule "the will of the people", but they can certainly hold government to account.

I hope so but i seriously doubt it. Even though im sure the majority of mps are personally remainers many of them wont dare to damage their careers by voting against the referendum.

For all those saying that its not democratic i think you didnt really understand how our systems work in the first place. Referendums are always advisory . The government chooses how to act in the end. The democracy part is where we vote in the general election for the government who then makes those decisions.
Its not X factor. We the people cannot just vote on laws armed with next to no information, just advertising campaigns by the tabloids. That would not be democracy that would be total chaos!

The referendum did not explicitly say it is advisory but since parliament never binds itself, even if it says binding it still does not bind the parliament as the parliament can always change its mind by passing a new act saying the referendum is not legally binding.

However, there is at least an arguable case that ignoring a referendum as it was conducted would be unconstitutional in the same way that if parliament passes a law to infringe fundamental rights would be unconstitutional given that politically and morally acceptability must form part of the pillars of the parliament's power.

In 1969 the Judge held that it was ok for the parliament to do morally and politically questionable things. Would it hold the same view in 2016 in this context?

But of course such ruling is also academic as the court can not do anything to the parliament such as cite parliament for contempt.

It is not as clear-cut as you think.

Except that it is!

What constitutional principle would be frustrated by a referendum result not being enacted by parliament?

It is irrelevant that it didn't explicitly say it is advisory since that is the default for referenda here.

I mean surely you understand that parliamentary sovereignty is a constitutional principle?

There is no such principle re referenda. And especially in this situation the constitutional principle of parliamentary sovereignty unquestionably overrides referenda. If parliament legislated for a result to be binding that still hs little to do with the referendum and everything to do with parliament legislating for the referendum result to be binding...

I don't get what you are not getting here?

There is no constitutional right to have referenda, they are discretionary and subordinate to parliament because of parliamentary sovereignty.

" parliamentary sovereignty is [bold] a [/bold] constitutional principle"

One of the principles?

But then parliamentary sovereignty is technically subjugated to the unwritten constitutions which has political, democratic principles and moral dimensions.

I am not saying that the court will definitely uphold that it is unconstitutional in 2016, but there is at least an arguable case that it might be.

On what basis?

What constitutional principle?

Parliamentary sovereignty is not subjugated even by EU law, which needs to be enacted by parliament.

I mean you keep on saying 'there is a case' but for there to be a case there needs to be some kind of legal argument about why parliamentary sovereignty doesn't apply here and I find that a ridiculous proposition.

Let's see if May and her cronies can present a case at the Supreme court. If they fail, they are now talking of rushing legislation through using a resolution which can be passed in one day.

One day, for a decision which will affect us for at least two generations!

Offred

The UK constitution is a collection of written laws (Bill of Rights), common law decisions and current society practises. It may be constitutional to criminalise homosexuality in 1969 but it would be unconstitutional to do so today as the views of the society has changed.

This is also a quirk in the UK constitutional framework that sometimes there is a legal right to do something provided that the said thing is never done, for example, the Monarch refusal to ascend parliament's bills.

Ok, UK did not have nationwide referendum until 1975, so this is a relatively new instrument in the constitutional framework. In recent years (such as in 2010 Parliament's referendum report), it is generally accepted that issues that have constitutional significance such as leaving the EU will need to be decided via a referendum.

Now, of course we agree that the legal status of the referendum is that it is not legally binding on the parliament. However, as with Peter Browning's submission during the constitution committee, he said:

"If the people vote one way, their representatives another, who should prevail, who is sovereign? This issue needs very careful consideration."

So, this question is not settled.

Having made further considerations on the issue, the hypothetical situation is pretty much as the following:

• Referendum is not legally binding on the parliament.
• However, if parliaments vote against the referendum then it will cause a constitutional crisis which will be settled via a general election
• If the GE returns the party which campaign to carry out the referendum than it will be carried out (sort of binding) and may lead to other constitutional reforms.
• There isn't really an option for the parliament to vote against the referendum and get away with it.