Open letter to MPs about the responsibility & limits of Parliament
Written by a lay person who is neither a constitutional or trade lawyer*
London, 3 July 2016
Something clearly must be done to address the precarious situation faced by those who feel excluded from political process & economic participation, and used the Referendum vote to oppose the Government. From this perspective, it is quite understandable that action must be taken, following the results of Referendum on EU membership.
The question is: what action, by whom, when?
(It is still not at all clear that Britain will exit, or by what mechanism, or within what time frame.)
Leaving aside what could be done to make lives and communities better, and leaving aside also the escalation of hate crimes and blatant racism since the referendum results were announced which also calls for strong positive action; this letter has a narrower focus.
This letter is about the workings of Parliamentary process and the unwritten British constitution. It asks you to consider what the powers and duties of Parliament and the prerogatives of Government are, and how in this time of crisis, they relate to actions taken and being considered relating to Britain’s membership in the European Union.
Situating this letter
This letter makes no reference to political parties or to the individuals who lead them.
I placed one photo in this letter because having an image in this publishing platform makes a post easier to share. I have chosen an image published in the THES (Times Higher Education Supplement) because I have direct ties to the HE sector, which as a sector supported Remain. In the reference list, I provide four sources offering insight after voting about the campaigns’ communications. Other than these elements, this letter contains no reflections at all on the campaigns themselves. This letter focuses instead on the actions of Parliament.
This letter has no content conceived to make headlines, evoke emotion or incite trolling. However, I have researched and written it from the ground up because it feels to me that history is in the making, and that in this unprecedented and unforeseen situation, more responsibility than is generally exercised is now called for. As Geoffrey Robertson QC wrote in the Guardian: “The only way forward now depends on the courage, intelligence and conscience of your local MP.”
I hope that readers will find within it what they need to write to and meet with their local MP. It seems to me that the most important thing now is to keep dialogue at every level open, and ongoing.
Are there grounds for a Judicial Review of the Act setting up the Referendum?
Could it be that the Act of Parliament that created the referendum was flawed?
For example, in legislating for a non-binding referendum, the Act of Parliament in 2015 failed to provide at least 4 important elements:
- Stipulations for the voter turnout needed;
- Provision for what would happen as a matter of course if the majority’s margin were slim;
- Requirements for truth in political advertising monitored by an independent entity comparable to the Advertising Standards Association (ASA);
- A timeline for when voters could expect publication of a blueprint for an exit process, including resources needed, costs for servicing the projected plan, etc
Other things to look at could include: full disclosure of the implications of leaving the EU for the perpetuation or removal of EU citizenship for UK nationals; prospects for any access to EU funding streams for specific communities, or for nationwide endeavours like biomedical research in the event that Britain takes steps to leave; and how ongoing protections for intellectual property registered under the European-wide system would work in the transition or after exit.
Beyond this there are at least three further matters that bear on the legitimacy of even proposing a referendum in the first place: one concerns peace in Northern Ireland, the other two concern the future of the United Kingdom and the citizenship status of its nationals.
How can Britain exit the EU while honouring the imperfect, yet successful Belfast Agreement?
The Belfast Agreement ushered in peace in Ireland through a settlement that:
- is recognised by the United Nations as being of supra-national importance
- Provides freedom of movement from the Republic of Ireland in the South to Northern Ireland, under EU law
- Affords choice to those born in Northern Ireland, who can choose a UK, an IRE passport or both. Both nationalities are recognised as EU citizens.
The Belfast Agreement is premised on the UK’s membership alongside the Republic of Ireland in the European Union. When the matter of Britain’s exit from the EU is considered, five questions present themselves immediately:
- How can the Belfast Agreement be honoured if a border is to be built in a zone that in the time of The Troubles was notoriously hard to protect and police?
- Will the Belfast Agreement be undermined by the presence of a physical border with passport checks?
- Does the Government have the authority to take a decision based on a non-binding referendum that substantially undermines the Belfast Agreement?
- If it does not, and if it is a matter for Parliament to debate and decide, can undermining the Belfast Agreement be said to be in Britain’s best interests?
- If in Parliament’s debate, the two-fold determination is made that the triggering of Article 50 does destablise the Belfast Agreement and destablising it is not in Britain’s best interests, can Parliament still act — whether by approving the Royal Prerogative of the Government, or by repealing the 1972 Act by which Britain joined the EU — to trigger Article 50? Is it permissible under the unwritten constitution?
The devolved regions: The case of Scotland
The Act making establishing the June 23, 2016 referendum failed to make any provision for what to do if regions with devolved powers were to vote differently to the overall national result.
The evidence that this is happened is widely accepted. The European Council President’s remarks after the post-referendum meeting refer to “results” in the plural, not a decision.
It seems no effective foresight was applied about the implications for the continuance of the United Kingdom even though Scotland had already held its own referendum to leave the UK the year prior.
Despite this obvious fact, the possibility that the United Kingdom might dissolve (substantially if not entirely) seems not to have been anticipated in the legislation. The wording of the Referendum speaks only of Britain. It’s not simply of case of whose Britain (the old versus the young) but also of Britain as seen from where (Scotland versus England).
In the period 2014–2016, Scotland narrowly voted to remain part of the UK and substantialy voted to remain part of the European Union. Those two results are not consistent, and no singular policy can deliver them both simultaneously. The paradox should give Parliamentarians pause, and cause for considerable reflection before triggering Article 50.
Stripping existing EU citizens who are UK nationals of EU citizenry
Those born in the United Kingdom after the 1993 and/or 2002 treaties are born UK nationals and EU citizens.
In the case of new nations joining the EU, enfranchisement of nationals as EU citizens happens, one presumes, when the treaty to join is enacted. In existing member states, EU citizenship is presumably conferred at the same time as national citizenship.
By triggering Article 50 on the results of the EU Referendum (either by the prerogative of Government or by way of an Act of Parliament), presumably the UK would be committing to a course of action that ultimately will strip its own people of EU citizenship. Five questions arise:
- Is it lawful to strip UK nationals with EU citizenship of it?
- In other words: Is there any provision for EU citizenship to be stripped from an entire class of people (UK nationals)?
- Does such provision exist already in EU law?
- Does it exist in UK law?
- If provision does not exist, can it be lawful under British law for an act of Government to strip its citizens of their rightly held EU citizenship?
The referendum did not ask the electorate to determine: do you wish to surrender or be stripped as EU citizenship?
The stripping or dissolving of the EU citizenship lawfully held by UK nationals seems to flow from the triggering of Article 50. The referendum that the electorate were consulted upon did not make this clear.
On the face of these questions alone, surely any decision to act on the referendum – by the Government’s prerogative or by Parliament repealing the 1972 Act — can and should be subject to Judicial Review in the British Courts.
This is now not as outlandish as it first seemed, when I began drafting this on 30 June. Mischon de Reya has been instructed by private clients to begin Judicial Review proceedings about the triggering of Article 50. The case being brought is that “the outcome of the Referendum itself is not legally binding and for the current or future Prime Minister to invoke Article 50 without the approval of Parliament is unlawful.”
The challenge I wish to raise is that beyond that narrower question, “Does the Government have the right to trigger Article 50 without Parliamentary Process?” is a further set of questions that the judiciary system may need to consider as well:
- Was the Government acting competently when the referendum was set without any plan upon which the electorate would be deciding?
- Supreme as its authority is, was Parliament acting within its powers when it set the referendum as a question about Britain?
- Was Parliament acting within its powers when one alternative plainly would create a condition that would undermine (or even repudiate) the Belfast Agreement? In other words: is there in principle a Parliamentary process required whereby the Belfast Agreement itself would need to be repealed as a a pre-requisite for any referendum that would make its continued upholding impossible?
- Was the Goverment performing competently when it announced a public referendum which if answered in one of two ways would jeoparidse the Belfast Agreement?
- Is there an international court where Parliamentary right in this area could be properly and legitimately challenged?
What is in the nation’s interests?
The duty of Parliament is to act in the nation’s interests. With hindsight, the tests to apply around the question of national interest might include:
- the viability of the Belfast Agreement if a border were to be introduced between Northern Ireland and IRE
- the relative stability or fragility of the political union of the United Kingdom
- currency stability
- the stability of families, communities and workplaces in which EU citizens who are not UK nationals are fully embedded and play an active, positive and (in the case of families) fundamental role
- protections owed to the environment
- funding and status to the scientific, research and higher education communities for which Britain is rightly known, worldwide
- credit ratings
- the intentions of global employers to relocate
- implications for pure and applied scientific research productivity, efficiency and quality standards, once single-market access is forfeited
- the enforceability of patent & other IP protections for UK inventors under European Union Intellectual Property Office schemes once EU status is forfeited
- the loss of capital for national infrastructure accessed at present through the European Investment Bank
- the availability of trade treaty experts to negotiate 134 trade agreements within the 2-year period
- the bureaucratic burden of naturalising settled Europeans once freedom of movement is annulled and EU citizenship is no longer treated on par with UK national citizenship as regards access to employment or banking
- the grievances and possible law suits brought by UK nationals who find that by an Act of Parliament (or the Royal Prerogative of Government) they are stripped of the EU cititzenship they have enjoyed, perhaps enjoyed since their birth in the UK.
These amount to heavy burdens to answer as regards national interest. Yet the constitutional crisis is both unprecedented and entirely of Parliament’s own making.
As Members of Parliament it is your duty to act in the nation’s interests.
If upon considertation you deem it is in the nation’s interest to avoid exiting the European Union within two years of Article 50 being triggered, then your votes in Parliament and your voice in Parliamentary debates must reflect this view.
In the current climate, to act with conscience will require courage.
I ask you to debate and vote with conscience and with courage in these matters. The eyes of the world are upon us.
Kate Hammer PhD FRSA
July 3, 2016
(c) 2016. All rights reserved.
Please link to this article. Please copy and tailor this letter to convey your own views to the Members of Parliament.
References with hyperlinks
In this post we argue that as a matter of domestic constitutional law, the Prime Minister is unable to issue a…ukconstitutionallaw.org
In a post originally published by the UK Constitutional Law Association, Nick Barber discusses the criteria for UK and…www.centreonconstitutionalchange.ac.uk
It's not over yet. A law that passed last year to set up the EU referendum said nothing about the result being binding…www.theguardian.com
Legal steps have been taken to ensure the UK Government will not trigger the procedure for withdrawal from the EU…www.mishcon.com
Professor Michael Dougan, the leading EU lawyer whose criticism of the referendum campaign's "industrial dishonesty…news.liverpool.ac.uk
Many students at New College of the Humanities urged Professor A C Grayling, Master of the College, to express his…www.nchlondon.ac.uk
Universities in the UK face uncertainties about the future of research funding, student fees and hiring of staff from…www.timeshighereducation.com
Relevant mainstream media articles
Three things can be said with confidence about Brexit and British politics. The first is a statement of fact: the Leave…next.ft.com
The rather patronising English joke used to be that whenever the Irish question was about to be solved, the Irish would…www.theguardian.com
As the dust settles after the UK vote to leave the EU, lawyers are picking over the landscape and legal opinions are…www.bbc.co.uk
The circumstances surrounding the EU referendum are so bizarre, so chaotic and so impassioned that it is easy to…www.theguardian.com
All good dramas involve the suspension of disbelief. So it was with Brexit. I went to bed at 4am on Friday depressed…next.ft.com
Mainstream media about the campaigning
The leave campaign enlisted the TV hypnotist Paul McKenna to advise on some of its campaign broadcasts, it has emerged…www.irishtimes.com
The following rejected ideas give a new insight into the communications strategy that failed to convince the majority…www.campaignlive.co.uk
Leading advertising agency Saatchi & Saatchi has released some of the posters the Remain campaign rejected during the…www.independent.co.uk
We the undersigned call upon HM Government to implement a rule that if the remain or leave vote is less than 60% based…petition.parliament.uk
Why I wrote this article
If nothing else is achieved, at least I can point my child to it; and say, I tried.
I am offering this in a serious manner and in a well-intentioned tone.
I won’t be drawn into tit-for-tats or “stop whinging or move to Ireland” exchanges. In any event, my work and my family responsibilities mean I am unlikely to respond in real-time or, indeed, to every comment.
A bit about me
I am not a lawyer. Rather, I am a catalyst of innovation, I teach entrepreneurship & mentor entrepreneurs.
My superpower is story design, the craft of explaining what you do & why anyone would care. As a story designer, I advocate responsible, realistic communications & help people break out of silo thinking in pursuit of a clearer, better perspective. My approach to story design emphasises plural perspectives and encourages people to anticipate and address unintended consequences.