European Union

The EU’s trade chief proposes to work with the US to keep Chinese steel from flooding both sensitive markets as an alternative to a tariff-fuelled trade war.

Security is the new competitiveness for the Polish presidency.

EU countries are pushing for the pending Critical Medicines Act to detail incentives offered for companies to produce treatments that will be ready in a crisis.

The text pits agriculture against the environment.

As Sweden grapples with rising gang violence, the government wants to give police tools to tackle gang recruitment online.

Leading CDU/CSU agricultural politicians had already expressed their preference for an alliance with the SPD.

It also proposed a “decarbonisation bank” for energy intensive industry and a regular communications on Europe’s CO2 price trajectory.

So, here’s the key question: Who actually made the decision for the UK to leave the EU?

It wasn’t the referendum.

The 2016 referendum, as explicitly stated in the Act of Parliament that created it, was advisory only and had no legal authority to decide Brexit. This was confirmed by the UK Supreme Court, which ruled that only Parliament could make the decision to leave the EU.

But Parliament didn’t make the decision either.

Following the referendum, MPs were never given the opportunity to debate and vote on the specific question of whether Brexit should happen. In January 2017, then-Brexit Secretary David Davis incorrectly told Parliament that a vote on the matter was unnecessary because ‘the decision’ had already been made by the referendum.

However, the Supreme Court had ruled that the referendum was not legally capable of making that decision.

In fact, the very reason the court case arose – thanks to Gina Miller’s legal challenge – was because Theresa May’s government had attempted to implement Brexit without any Parliamentary approval whatsoever.

 WAS PARLIAMENT MISLED?

David Davis advised MPs that since ‘the decision’ to leave had already been made, all Parliament needed to do was grant the Prime Minister the authority to notify the EU of an ‘intention’ to leave.

But an intention is not a decision. It’s not even binding.

The European Court of Justice later ruled that the UK could have cancelled Brexit at any time during the Article 50 notice period and remained an EU member on exactly the same terms. In other words, Brexit was fully reversible until 11pm on 31 January 2020, the date the UK formally left the EU.

In early 2017, Parliament was given one of the shortest bills in history – the European Union (Notification of Withdrawal) Bill. It simply stated:

(1) The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

(2) This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.

Notably, this bill did not define the content of Theresa May’s Article 50 notification letter, which she unilaterally composed and sent to the EU. When Parliament passed the bill allowing May to notify the EU of an ‘intention’ to leave, the public was led to believe that MPs had voted to leave the EU.

Nothing of the sort had happened.

To reiterate: Parliament never debated or voted on the specific question of whether the UK should leave the EU.

 SO, WHO MADE THE DECISION?

This mystery was unravelled in June 2018 at a High Court hearing on the validity of Article 50. The court established that Theresa May, and Theresa May alone, made the decision to leave the EU.

Lord Justice Gross and Mr Justice Green ruled that the decision to leave was contained in the Prime Minister’s Article 50 notification letter to then-European Council President Donald Tusk on 29 March 2017.

In that letter, May wrote that ‘the people of the United Kingdom’ had made the decision to leave. But the Supreme Court had already ruled that the referendum had no legal authority to make any decision.

She also wrongly claimed that the ‘decision’ had been confirmed by Parliament, even though Parliament had only approved sending a notice of ‘intention’ to withdraw.

THE CONSTITUTIONAL QUESTION 

Article 50 requires a member state to trigger withdrawal from the EU “in accordance with its own constitutional requirements”. But the UK doesn’t have a codified constitution, and the advisory nature of the referendum complicated everything.

Would the written constitutions of other EU states have allowed an exit process based on just 37% of the electorate voting Leave? Unlikely.

Could the EU have rejected the Article 50 notice? Possibly. But it was politically expedient for the EU not to challenge Britain’s flawed decision.

The UK Parliament was denied the opportunity to properly debate and vote on Brexit.

Labour, however, could have legally challenged the process – right through to the Supreme Court or the European Court of Justice.

Instead, they complied with the flawed Brexit process and backed it, making it difficult for them to challenge it later.

WHAT SHOULD HAVE HAPPENED?

After the advisory referendum, Parliament should have been asked the exact same question that was put to the British public:

Should the United Kingdom remain a member of the European Union or leave the European Union?

Instead, MPs were only asked whether they would allow the Prime Minister to notify the EU of an ‘intention’ to leave – which was a procedural matter, not a substantive decision.

As a result, Parliament debated and voted only on the terms of Brexit, but never on whether Brexit itself should happen.

GETTING BREXIT DONE

Boris Johnson campaigned on the slogan ‘Get Brexit Done’, negotiated the terms of the withdrawal agreement, and Parliament voted to accept them.

But again, MPs were never asked whether the UK should leave the EU – only whether they accepted the deal on offer.

Brexiters argue that the 2019 general election gave Johnson a democratic mandate for Brexit. But the full picture gives a different story:

• In 2019, most voters did not vote Tory.
• Most voters backed parties offering a second referendum.
• The Tories won an 80-seat majority with only a 1% increase in their vote share from 2017, when they lost their majority entirely.
• If the 2019 general election had been a referendum instead, polling suggested Remain would have won.
• The public was never given a vote on the Brexit deal itself.

All this exposed deep flaws in the UK’s electoral system.

A PUBLIC INQUIRY INTO BREXIT

We now urgently need a full public inquiry into Brexit. Such an inquiry should investigate:

1. How Brexit went ahead without the explicit approval of Parliament.
2. How only 37% of the electorate were able to dictate such a momentous constitutional change.
3. How the Leave campaign won through lies, cheating, and illegalities – including unlawful overspending and the misuse of personal data to manipulate voters.

THE BOTTOM LINE

Had the referendum been legally binding, the illegal conduct surrounding it would almost certainly have resulted in the courts annulling the result.

But since the referendum was only advisory, it escaped legal scrutiny – even though the government treated it as if it were binding.

Do you get the feeling that the country has been conned on an enormous scale?

• Join the discussion about this post on Facebook, LinkedIn, YouTube, Instagram, BlueSky (to follow)
• Related video: The moment the Theresa May government turned an advisory referendum into a binding vote, announced by Brexit Secretary, David Davis



• Related video: How referendums should be run properly – by former Brexit Secretary, David Davis (note: The EU referendum broke every rule)



• Related video: What Prime Minister, David Cameron, should have done after the referendum

• Why we need a new vote on Brexit



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