With the terrorist attacks in Manchester and London over the past week or so, it’s fair to say that the UK’s resilience has been tested. With the General Election taking place tomorrow, and Theresa May promising to ‘rip up the Human Rights act’ to introduce sweeping restrictions on the Internet, and strengthen anti-terrorist legislation, it remains to be seem how things will pan out.
You can never completely overshadow the horrific consequences of fatal attacks where innocent people lose their lives, but through the dark fog of the events themselves, stories have emerged that show true humanity, rather than the bleak nihilism of the terrorists. Stories of people rushing to the defence and aid of others; fearlessly tackling armed attackers, and embracing strangers.
A couple of examples of this that have really stood out for me in particular demonstrate the best, and most ‘British’ response imaginable. In the first, a man seen ambling casually away from a pub where the attackers had struck was hailed as a spirit of defiance for taking his pint with him:
Beer is so expensive in London mind you, that leaving a full pint behind would be the real madness.
And then, there was this guy… who when confronted with three knife wielding attackers screaming ‘This is for Allah!’, replied by rushing to fight them bare handed, shouting: ‘Fuck you, I’m Millwall!’, allowing others the chance to escape the scene. For those not familiar with Millwall football club, this sort of behaviour is perfectly normal.
Speaking later after surviving multiple stab wounds all over his body, he said:
I thought, ‘I need to take the p*** out of these b******s’.
For me, this sums things up pretty beautifully. The point of these attacks is to make people afraid; to make nowhere feel safe… to withdraw in terror to an authoritarian regime that results in us turning on our neighbours and friends… but it’s tough to be afraid when you are laughing your ass off.
Those of us in Glasgow remember our own brush with ISIS well…
These attacks are always heartbreaking, and we’ll mourn the people we lose, but we also need to turn things on their head, find the humour in any situation, and laugh. Laugh right in the face of those who think they can make us scared to go outside, or scared of our Muslim friends, because their attempts to destroy who we are are laughable – and if there’s one thing the British are good at, it’s taking the piss out of those who take themselves too seriously.
Tonight I came across an article on TechCrunch in response to an open letter from Tobias Lütke, CEO of e-commerce platform Shopify, in which he defends the company’s decision to continue hosting Breitbart’s online shop. Breitbart being the infamous far right publication of which Steve Bannon was heavily involved with.
After sustained criticism, Lütke explains in the post entitled ‘In Support of Free Speech’ that based upon a belief that ‘commerce is a powerful, underestimated form of expression’, it would be wrong to effectively censor merchants by shutting down their shops as the result of differing political views.
Reporting on the letter, TechCrunch shared their post to Facebook with the text: ‘Shopify’s CEO thinks his platform has a responsibility to continue hosting Breitbart’s store – here’s why he’s wrong.’
I was curious to see the arguments that would be proffered as to why the decision was wrong, but was ultimately left wanting. Here are the reasons given, as far as I could make out:
Lütke is grossly overestimating the role of a private e-commerce platform in providing and protecting freedom of expression.
Shopify cannot ‘censor’ anybody, as they are not an emanation of the State.
Justifying the continued hosting of merchants who have extreme views for freedom of speech reasons is wrong, as freedom of speech does not apply to private organisations.
As a private company, Shopify are not legally required to provide a platform to anybody.
Shopify’s Terms of Service allow them to terminate the account of any user at any time.
In response, here’s why TechCrunch are wrong:
None of the reasons given actually explain why Shopify shouldn’t continue to host Breitbart.
Read over them again, then check out the full article here. Despite heavily criticising Shopify, and stating that Lütke is ‘wrong’, TechCrunch don’t engage at all with the heart of the issue. No, Shopify are not legally required to host the Breitbart shop, and yes, quite obviously their Terms of Service are quite obviously worded in such a way to give them that discretion in the event of any legal challenge, but that’s hardly a surprise.
Here’s the big question that went unanswered: why should Shopify not host Breitbart?Lütke hits the nail on the head with the following challenge, which the TechCrunch article completely fails to even acknowledge:
When we kick off a merchant, we’re asserting our own moral code as the superior one. But who gets to define that moral code? Where would it begin and end? Who gets to decide what can be sold and what can’t?
Rather than attempt to address this fundamental issue, TechCrunch essentially just argue that Shopify should kick Breitbart off of their platform because, er, well, legally there’s nothing to stop them. A pretty poor argument at best.
Protecting freedom of speech isn’t just down to the State.
Firstly, I’m not sure where this idea that censorship is only something that the State can give effect to comes from. It means to forbid or to ban something; to suppress speech. The source doesn’t have anything to do with it.
Secondly, there is a lot of confusion surrounding freedom of speech and the relation to the State, even from those who purport to understand the dynamic. To clear some things up, the following are true:
Freedom of speech law (generally) only protects citizens from the acts of State actors.
Private online service providers (generally) have no obligation to protect the freedom of speech rights of their users, or to give them a platform for expression.
However, to assert that a platform cannot justify their actions based on freedom of speech considerations, or to willingly strive to uphold those principles on the basis of the above is a non sequitur. Additionally, just because you can’t threaten legal action on a freeedom of speech argument against Facebook if they take down your status update, that doesn’t mean it is wrong to argue that Facebook should be doing more to consider and protect those values.
Just as we would not expect a hotel owner to be able to refuse to allow a same sex couple to share a bed, or a pub to knock back someone based purely on the colour of their skin, it is nonsense to pretend that we have no expectations of private organisations to abide by certain shared societal values.
Without touching on the claims around the importance of e-commerce as a vehicle for expression, it seems that in a world where we are increasingly reliant on private entities to provide our virtual town square equivalents, and where we expect certain values to be upheld, arguably platforms such as Shopify have an increasing moral obligation to protect (as far as is possible) the principles that are the cornerstone of our Democracies.
In the past week, we have seen peaceful protests around the world, in response to the actions taken by Donald Trump, as he has assumed the American Presidency.
Despite not having attended any of the demonstrations myself, I’ve been troubled by the fervent reaction against those who have done so, and the poor arguments that have been made against speaking out. So, without passing comment on the content of any of Trump’s policies or actions, I’ve decided to address the common criticisms publicly:
1. Protesting doesn’t make any difference.
I almost can’t believe that this statement is still being uttered in 2017, after all that has been written, and after we have seen and to-this-day celebrate the outcomes of peacefulprotest in the past.
The ultimate goal of protest is obviously to bring about change, but few who take part in any single act of resistance are naive enough to believe that that one particular event will have devastating political ramifications on its own. Movements are built over time, and are successful by building the pressure on those in power.
In this particular situation, there is a real chance that sustained protest can have an impact on the policies of the Trump administration. The Republican party is not full of evil people, and many viscerally disagree with his approach to many issues, but at present feel unable to speak up against them. If all these people hear is silent indifference to what is going on, they are far less likely to have the courage to take the first steps themselves in opposition.
For many, even if there is absolutely zero chance of political change, demonstrations are still immensely important. First and foremost, they are about standing up and publicly stating that you refuse to quietly accept actions that you fundamentally disagree with, and may otherwise be powerless to stop. It’s about demonstrating to other people who facing the brunt of the effects that they are not alone. That’s why they are called ‘demonstrations’.
I won’t draw comparisons between Trump and Hitler at this point, but I do find it rather curious how one of the biggest questions people have when looking back at history is how the German population could possibly have let fascism take hold, seemingly without much protest. I wonder how many people were dismissing those who spoke up, with the same argument: ‘Protesting won’t make a difference’.
2. It’s a foreign country. It doesn’t have any impact on you or people you know. Focus on your own issues.
There are a few constitutent parts to this. Firstly, this kind of statement is often made in a blanket fashion, completely ignoring the personal relationships that the person on the receiving end may have. Where their wife may come from; where their friends may live; where the company their work for is based, for example.
Secondly, even if a person has zero personal ties to the US, the idea that we could close our eyes and ears to what happens outside of our country is a non-sequitur. In fact, it’s the worst kind of nationalism. Following the argument through logically, no Scottish person should ever speak about the evils of apartheid – because it was a South African issue. Neither should the UK have gotten involved in the Second World War. There are innumerable examples of why this doesn’t hold water.
There is a valid criticism to be made of people who only care and speak up about what they see on the news in a foreign country, whilst acting completely indifferent about what is happening in their own back garden. However, that sort of criticism can only be made with in depth knowledge of a person and their motives, and is certainly not something that should be applied with a broad brush to people whose background you have no idea about. Just because somebody is concerned about the actions of Trump, doesn’t mean that they aren’t equally as passionate about the right wing agenda of the UK Government, or that they volunteer at a local foodbank every night.
All of this aside, the reality is that what happens in America does impact what happens in the UK. The policies and rhetoric of the most powerful man on Earth, who leads the biggest military superpower in modern history, who happens to be our supposedly closest ally, definitely has repercussions around the globe. To pretend otherwise is simply foolish.
To bring it home, so to speak: the ‘solidarity’ word is one that comes with a lot of baggage, but it is exactly what protest is often about: making a statement about what kind of society you want and believe in, even in spite of everything that may be happening elsewhere. It’s about saying: ‘The most powerful nation on the planet may be targetting refugees, but we won’t accept those same actions here.’ If all the protests in Glasgow yesterday achieved was to make a single refugee feel more welcome and secure in their adopted city, then they were already a success.
3. The American people chose to vote for Trump. Get over it.
This is one of the most ridiculous assertions of the lot. The idea that once a political party or candidate wins an election that they are infallible, and should be immune from any sort of criticism is ludicrous. At best it is complete hypocrisy on the part of those uttering this nonsense, and at worst an extremely dangerous perspective, that results in human rights abuses in countries like Turkey and Russia.
4. Protesters are just idiots who are virtue signalling whilst contributing exactly zero to the cause they’re apparently so passionate about.
This is pretty much a word for word comment from someone who didn’t approve of the demonstrations held in Glasgow yesterday, but the language is similar to a lot of others.
Here’s how ‘virtue signalling’ is defined:
virtue signalling (US virtue signaling)
noun [mass noun]
the action or practice of publicly expressing opinions or sentiments intended to demonstrate one’s good character or the moral correctness of one’s position on a particular issue: it’s noticeable how often virtue signalling consists of saying you hate things | standing on the sidelines saying how awful the situation is does nothing except massage your ego by virtue signalling.
On its own, the phrase is seemingly innocuous, but more and more frequently it is now being used to dismiss people who are taking a position that others disagree with, without them having to actually intellectually engage with that position. It’s become one of the lazy phrases like ‘fake news’ that I can’t stand, as it doesn’t actually mean anything in practice.
Given that the phrase is based on intent, the only way ‘virtue signalling’ could accurately be ascribed to those who chose to demonstrate against Trump or his actions, would be if the person using it knew those intentions. In other words, they would need to know the specific motivating factors involved… something that is clearly impossible when applied to a group.
It’s probably worth being crystal clear on this: disagreeing with your position doesn’t mean that somebody is ‘virtue signalling’. It means they disagree with your position. Challenge them on their arguments, not with some spurious empty phrase that only serves to shut down discussions that you can’t handle.
Today the big story on the web is that a story leaked from a ‘British intelligence officer’ about Russia blackmailing Donald Trump, published by BuzzFeed, and then dutifully re-posted by other major established media outlets was allegedly made up by posters on 4chan.
Whilst the articles state that the claims are ‘unverified’, and ‘contain errors’, it appears that there has been very little in the way of fact checking or corroboration of sources going on. Indeed, publishing allegations without due dilligence is exactly the operational basis of other sites that don’t fall under the banner of ‘credible’ media. The fact is that the outcome in either case is the same: either willingly or blindly (through a desire to publish content first to drive advertising revenue), these sites are spreading misinformation. Looking at the Mirror’s coverage, one would be forgiven for thinking that the info was at least partially credible:
It’s all too easy to scoff at the Mirror, or BuzzFeed. Nobody takes them seriously after all; everybody knows that! That clearly isn’t actually the case, and it demonstrates the problem with the reactionary drive towards ‘banning’ or filtering sites that publish fake news from online platforms.
Of course, these claims to have made up the story could very well be made up themselves… but that doesn’t invalidate the criticism. If anything, it highlights the issue with asking or expecting third parties such as online service providers to filter out untrue content.
To echo the questions I raised in my previous post on this topic: Exactly what constitutes fake news, where do we draw the line, at what point do ‘credible’ news sources lose that credibility, and who makes those determinations? Should BuzzFeed articles be removed from Facebook? What about The Mirror? What about CNN? Maybe only articles claiming to have made up fake news should be treated as fake news. Where does it stop?
For an interesting read on this that was shared by my colleague Davide recently, check out this page:
It only gets worse when charges of fake news come from the media, which, due to the dismal economics of digital publishing, regularly run dubious “news” of their own. Take the Washington Post, that rare paper that claims to be profitable these days. What it has gained in profitability, it seems to have lost in credibility.
Edit: I published this earlier today before Trump’s press conference, and felt compelled to update it as a result of what he said. Responding to questions from the media, he apparently decided to pick up the ‘fake news’ mantle:
When Jim Acosta, Senior White House Correspondent for CNN, attempted to ask Trump a question, the President-elect refused to answer. “Not you. Your organization is terrible,” Trump said. “I’m not going to give you a question, you are fake news.”
So now Trump has appropriated the term ‘fake news’ to thwart off any criticism without response. That’s what happens when you set up an empty vessel as something that is inherently wrong with no real definition. This should have been easy to avoid. – (source)
This is precisely why setting up a straw man term such as ‘fake news’ is so dangerous, because an empty vessel that is inherently bad without any clear definition leaves the power in the hands of those who want to wield it for their own ends. If we want to try and combat ‘fake news’, we first need to understand what it is we are fighting against. Otherwise, the question becomes whether it is our version of fake news that is bad, or Donald Trump’s?
As the results of the US Presidential election began to sink in, the finger of blame swung around to focus on ‘fake news’ websites, that publish factually incorrect articles with snappy headlines that are ripe for social media dissemination.
Ironically, the age of propaganda has previously thought to have died out with the proliferation of easy access to the Internet, with people able to cross-reference and fact check claims from their bedroom, rather than having a single domestic point of information. Instead, what it appears we are seeing is the opposite; people congregating around a single funnel of sources (Facebook), which filters to the top the most widely shared (read: most attention grabbing) articles.
Almost immediately, the socially liberal-leaning technology giants Google and Facebook announced that they would be taking steps to prevent websites from making use of their services. This has sparked a ream of discussion about the ‘responsibility’ of other online platforms to take steps to prevent the spread of these so-called ‘fake news’ sites on their networks.
Here, probably for the first time I can remember, I find myself in agreement with what Zuckerberg has (reportedly) said in response:
The suggestion that online platforms should unilaterally act to restrict ‘fake news’ websites is one of the biggest threats to free speech to face the Internet.
Those are my words, not his – just to be clear. Click through to see what he actually said (well, as long as the source can be trusted).
It is unclear exactly what ‘fake news’ is supposed to be. Some sites ‘outing’ publishers that engage in this sort of activity have included The Onion in their lists, which in of itself demonstrates the problem of singling out websites that publish ‘fake’ news.
Where is the line drawn between ‘fake news’ and satire?
At what point do factually incorrect articles become ‘fake news’?
At what point do ‘trade puffs’ and campaign claims become ‘fake news’ rather than just passionate advocacy?
If the defining factor is intent, rather than content, who makes that determination, and based on what set of values?
It is not the job of online platforms to make determinations on the truth of the articles that their users either share, or the content that they themselves publish. There is no moral obligation or imperative on them to editorialise and ensure that only particular messages reach their networks. In fact, it is arguably the complete opposite: they have an ethical obligation to ensure that they do not interfere in the free speech of users, and free dissemination of ideas and information; irrespective of their own views on the ‘truth’ or otherwise of them.
The real challenge to free speech isn’t fake news; it’s the suggestion that we should ban it.
Misinformation is a real issue, and the lazy reliance culture facilitated by networks such as Facebook and Google where any article with a catchy headline is taken at face value is a huge problem, but the answer is not for these networks to take things into their own hands and decide what set of truths are acceptable for us to see, and which are not.
We have reached a position where half of our societies are voting one way, whilst the other half can’t believe that anybody would ever make such a decision, precisely because we have retreated into our own echo chambers – both in the physical world as well as the virtual. The solution to the political struggles we on the left face is not to further restrict the gamut of speech that is open to us in our shared online spaces, or to expect service providers to step up and act as over-arching publishers; it is to get out there and effectively challenge those ideas with people that we would normally avoid engaging with. Curtailing the free speech of others through the arbitrary definition of ‘fake news’ is not only not the answer, but it’s a terrifying prospect to the very freedoms that we are arguing to protect.
The real challenge to free speech isn’t fake news; it’s the suggestion that we should ban it.
Disclaimer: It should go without saying that these are my views, and not necessarily those of WordPress.com, or anybody else.
For the third time in recent memory, I’ve woken up from a restless night to the news of a political outcome that feels more akin to a dystopian nightmare than reality.
My heart goes out to my friends and family in America and beyond who are crushed, and in despair at the result of the Presidential election. I know and deeply resonate with the sudden, terrible feeling that you don’t live in the country you thought you did; the realisation that the majority of your fellow country-people do not share the same hopeful and inclusive perspective that you hold as such an integral part of your identity. It’s important to take the time to mourn that loss, and we are grieving alongside you.
When the initial shock clears (and it will), we need you to help us take a step back and work out why we on the socially liberal side of the spectrum keep ending up on the losing end of these political outcomes. Why is it such a surprise to us that the results are what they are? How can so many people feel this way, and take positions that we find untenable, and us not realise?
I’ve had time to reflect on some of this since the Scottish independence referendum in 2014, and then the recent Brexit vote. The reason these results seem to come completely out of the blue to so many of us isn’t so much because of the existence of a ‘silent majority’… you only need to go down to any pub or bar to hear the exact same views espoused by Trump and Farage… Instead, the real reason is that we have walled ourselves off from these irritants, creating quasi echo chambers where our only associations are those who either agree with us, or who we can have coherent conversations. The distinction there is important – as the problem is comprised of two elements: We avoid interacting with those who hold these opposing views as they seem so inconceivably awful, and when we do, we don’t even know how to engage with them properly.
Deleting people from your Facebook for posting racist, sexist, or otherwise derogatory and intolerant statements might well be part of the issue (as people are so keen to point out), but it is often the only thing that can reasonable be done to avoid getting involved in daily arguments. There is no escaping the fact that the recent wave of populism often seems completely blind to any sort of reasoned debate or discussion, and trying to get a cohesive position from many can be impossible, and frustrating. Asking somebody to provide evidence for their claims, or point out inconsistencies in their logic leads nowhere but anger, and whilst it might well win the argument, it isn’t winning anybody over.
I don’t believe that what we are witnessing is some sort of a working class movement, as some have claimed, and it certainly isn’t a battle between left and right. This is a new kind of class movement, one where those who feel disenfranchised and disempowered, and who may not necessarily be able to articulate exactly why they feel the way they do are attempting to wrest some sort of control out of a system that has failed them. Arguably though, the biggest failiure has been the ability of those of us who hold apparently ‘enlightened’ views to even begin to effectively communicate with these people, or appreciate the real issues that they face. They are real people in our communities, but ones whose views we have chosen to try and avoid conflict, which instead has only served to facilitate their growth.
I’m not sure how we do this, but if we are ever going to turn things around, we need to find ways to both interact with those on the other side of the fence, but also to engage with them. Not avoiding the discussions is probably an important first step.
For the first time in a while, I woke up to headlines that gave me a glimmer of hope that not all has completely gone to the dogs:
I took the time to read through the full judgement (PDF), which is something of a master class in British constitutional law and statutory interpretation; full of exactly the points that I and other legal commentators have been making since the EU referendum was announced relating to British Parliamentary sovereignty.
Specifically, the judgement superbly outlines and solidifies limits on the Royal Prerogative, which is a power oft-criticised for its vast, unchecked reach, and past abuses.
“The powerful constitutional principle is that the Crown should not have power to vary the law of the land by the exercise of its prerogative powers.”
Essentially, the judgement was that based on the Diceyan principle of Parliamentary Sovereignty; that it is the British Parliament who must give the Article 50 notification; not the Government via the Royal Prerogative.
Despite the strong, and reasoned nature of the judgement, the response from those who voted to leave has been almost unbelievable, with Conservative MPs declaring that the Government should not be bound by unelected judges (which is literally, the entire basis of the rule of law), and that the decision to require Parliament’s involvement is ‘disgraceful’.
Dictionary definition of contradiction in terms.
To be clear: today’s judgement was not about whether or not we leave the EU; instead, it simply re-asserted the sovereignty of the British Parliament, which is exactly what the leave campaign was arguing had been lost in the first place. If Parliament does decide to completely refuse to trigger Article 50, then that would arguably be a disgrace. The referendum was held, and the outcome should be respected; something that I have repeated time and again on this blog. However, Parliament should be involved.
The UK voted to leave the EU, yes, but the kind of exit was never specified. We were faced with the prospect of having the most extreme form of severance possible, thrust forward at the whim of an unelected Prime Minister. Instead, now we have Parliament involved in determining the kind of exit.
The Government argued in it submissions that Parliament would most likely have the chance to vote on any deal that was reached with the EU before it was implemented, and that it wasn’t necessary to have Parliamentary approval to trigger Article 50. The Court quite sensibly rejected this notion, on the basis that by the time any such vote came around, there is the real chance that the time limit imposed by the European Treaty would run out, and leave us with no rights or compromises.
By all means, get angry if Westminster completely refuses to ever trigger Article 50, but to be outraged at the principle that the British Parliament should be involved in the implementation of one of the most significant political processes of our lifetime is plainly just nonsensical. To reiterate: today’s question isn’t about whether or not Article 50 should be triggered, but who has the power to do it – on behalf of the people.
Of course, all of this is subject to a final appeal to the Supreme Court, so we will see what happens in the next leg.
I’ll wrap up with this text, taken from the Fire Brigades Union case, and quoted in today’s judgement:
R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513
Today I came across yet another example of how the British approach to immigration law is completely inconsistent, and penalises those of us with non-EU spouses disproportionately.
There are various ‘global entry’ style schemes where frequent travellers can pay for additional background checks, which lets them go through an expedited customs and immigration process when travelling to certain countries.
Here’s a recent explanation of how Canadian and US nationals who are a member of this scheme can get preferential treatment when coming to the UK:
Registered Traveller was launched by the UK Border Force to give faster and more convenient entry to the UK for eligible nationals from the United States and Canada. Membership of Registered Traveller costs £70 in the first year and £50 per year thereafter.
Membership of Registered Traveller includes the following benefits:
Access to ePassport gates
Use of the UK / EEA queue
No requirement to complete a landing card on arrival in the UK
No routine credibility interview with a Border Force officer.
All of that sounds great, until you consider how this approach differs from the way we treat British citizens who have non-EU spouses.
For example, my American wife has lived in the UK for the past 2 years. We have gone through two (soon to be three) separate visa processes, paying thousands of Pounds, and providing an incredible amount of evidence about our backgrounds, finances, and relationship. Yet, she still has to fill out a landing card on arrival in the UK. This landing card includes questions like: “How long do you intend to be in the UK?”, which is totally inappropriate for residents – but who cares about that?
That’s the logic of British immigration law. Give foreign business travellers a pass on basic checks if they spend fifty quid a year and do an interview, but completely shaft British citizens and their sposes that go through the most thorough of application processes and spend thousands of Pounds.
Makes you feel really proud to be a British citizen.
Legal myths and inaccuracies have been rampant in the days following the outcome of the EU referendum. I collected these as I sat sipping leche de pantera in sunny Barcelona, and have put together an explanation for each of the biggest howlers below.
‘The referendum was only advisory, not legally binding.’
No, the referendum is not legally binding – but that should be of no surprise, as no referendum in the UK ever is.
The response from a lot of folk at this point is to reference the 2011 referendum on whether or not to adopt a system of proportional representation for Westminster. This is thought of as a referendum where the result would be ‘legally binding’ on Parliament. Part of the relevant language of the Parliamentary Voting System and Constituencies Act 2011 that lends itself to this view is:
8Commencement or repeal of amending provisions
(1)The Minister must make an order bringing into force section 9, Schedule 10 and Part 1 of Schedule 12 (“the alternative vote provisions”) if—
(a)more votes are cast in the referendum in favour of the answer “Yes” than in favour of the answer “No”, and
(b)the draft of an Order in Council laid before Parliament under subsection (5A) of section 3 of the Parliamentary Constituencies Act 1986 (substituted by section 10(6) below) has been submitted to Her Majesty in Council under section 4 of that Act.
(2)If more votes are not cast in the referendum in favour of the answer “Yes” than in favour of the answer “No”, the Minister must make an order repealing the alternative vote provisions.
(a)must bring the alternative vote provisions into force on the same day as the coming into force of the Order in Council in terms of the draft referred to in paragraph (b) of that subsection, but
(b)does not affect any election held before the first parliamentary general election following that day.
Rather than binding Parliament to a decision, this simply sets out the process by which they would be expected to implement the result in a statutory form. That in of itself does not impose a legal obligation on Parliament to actually do so. Even if it did, the doctrine of Parliamentary Sovereignty means that it is impossible for Parliament to bind itself in such a way. Just as the statutory recognition of the Scottish Parliament’s ‘permanence’ is symbolically important but legally meaningless, the same applies here. Politically, expectations may be set by statutory wording, but legally there is absolutely nothing to stop Parliament ignoring the result of any referendum.
The nature of the referendum does come into play when considering another one of the myths though, so we will come back to it later on.
From my own personal, political standpoint (rather than a legal one):
When it comes to the ‘advisory’ part of the claim about the referendum, it is a word that has conveniently only cropped up in the aftermath of the result, usually to aid a particular position. Changing the expectation of referenda in this way is a dangerous game. We should not start to assume that a referendum result will not be implemented by default, and that the Electorate are only giving their ‘opinion’, just because it technically isn’t legally binding under the constitution. If Parliament wish to ignore the expressed will of the people, we should not let them away with the political consequences of doing so.
At no point in the lead up to the EU referendum was it ever suggested that the result would only be ‘advisory’. To pretend otherwise would be a disgrace, and do a massive disservice to our Democracy. Imagine the fallout of Scotland had voted to leave the UK, only for the outcome to be dismissed on the basis that the referendum ‘was only advisory’.
‘The Scottish Parliament can veto the referendum result.’
Ah, wouldn’t it be glorious if it were true. Sadly, it’s not. This is a myth that appears to be caused, or at least perpetuated by the media’s misleading coverage.
The Sun’s ill informed title. What a surprise.Misleading headline from the IndependentThe BBC’s original headline
It’s worth noting that the BBC have since updated the story’s title to be more accurate:
There are some brilliant responses already that deal with this question in depth. As great as they are, they tend to approach things in a more academic fashion – which isn’t necessarily all that clear for those without a legal background. For this reason, I think it’s worth reiterating the position in a more straightforward fashion.
In short, the Scottish Parliament has no legal power to ‘veto’ any decision of the British Parliament – and particularly not this one. Westminster is sovereign, and can make or unmake any laws it likes, including the very existence of the Scottish Parliament if it so chose. (Again, see my previous blog on this very topic for more). There would of course be political fallout to any of these decisions, but legally nothing would stand in their way.
If there is no veto, what was all the media fuss about then?
There is a ‘constitutional convention’ that Westminster would seek legislative consent from the Scottish Parliament before legislating on any area that would affect devolved matters, which can be thought of as a sort of ‘gentleman’s agreement’; an understanding that the elected representatives of Scotland should at least be consulted before Westminster exercises their sovereign power to over-rule them. This could be (shakily) equated to a parent choosing to knock before entering into their teenagers’ bedroom. Nothing would stop them from waltzing in unannounced, but they make the choice not to out of respect for the other person’s individual autonomy. If parents continually disrespect this unwritten social understanding, then the overall relationship will suffer as a result.
In the interview with Nicola Sturgeon, you will notice that she never once mentioned the word ‘veto’. Rather, she stated that she would ask the Scottish Parliament to refuse to give their ‘legislative consent’, something which they are perfectly entitled to do. This may well pose a significant political and constitutional issue for Westminster, but nothing would prevent them from pulling out of the EU anyway.
As it stands, there is a very real chance that the Scottish Parliament would never have the chance to refuse to give their legislative consent anyway. If Westminster were to vote on the issue, this would be far more likely, but…
‘To leave the EU, the British Parliament will have to vote on it.’
Nope.
The idea here is that in order to give the now infamous Article 50 notification to commence the process of the UK leaving the EU, it will have to be approved by the Westminster Parliament – and potentially even the House of Lords. Those looking to find a way to avoid exiting the EU are hoping that since a majority of MPs are opposed to leaving, they will refuse to do so, scuppering the whole thing.
What people who bring this up forget is the existence of the ‘Royal Prerogative’, a curiosity of the British constitution that allows for action to be taken (usually on the advice of a Prime Minister) without requiring Parliamentary assent. This is the norm for international treaties, and it’s precisely the mechanism David Cameron was expected to employ before he dropped the mic and kicked the ball down the field for somebody else to deal with.
Parliament could block the repeal of the European Communities Act 1972 when it came time to do so, but if the Article 50 notification process had already been invoked, this would be completely pointless. After 2 years (unless there was a unanimous agreement to extend this period), we would be out of the EU under European law, whilst still domestically bound by the requirements.
‘Under European law, the result of the referendum is invalid as less than 65% of those who voted did so to leave.’
This particular idea seems to have come from people desperately reading various laws to come up with some way to nullify the vote’s outcome. It’s also completely incorrect, resulting from a simple misinterpretation of the law.
Edit: Apparently this error is the basis of a petition signed by over 4 million people to call for a second referendum. Even more important to clear it up.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
and Article 238(3)(b) says:
(b) By way of derogation from point (a), when the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72% of the members of the Council representing Member States comprising at least 65% of the population of these States.
Rather than imposing any requirement on the percentage of people who have to vote to leave the EU in a Member State, this sets out the framework for how the European Council will go about negotiations should that Member State decide to leave. The 65% figure relates to the makeup of the group that will enter into those negotiations.
Further, Section 1 of Article 50 TFEU is pretty clear:
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
If the UK decided to draw straws, or have a haggis flinging competition to decide whether or not to leave the EU – that would be perfectly acceptable (so long as it complied with other general EU law principles). The point is that the decision making process is something that is entirely up to the Member State in question to determine. Again, this provides a neat segue into the final incorrect assertion:
‘The EU will force the UK to leave if we don’t trigger Article 50.’
If you listen to the President of the European Commission, Jean-Claude Juncker, it would sound like the UK is about to be kicked out of the EU, even if it doesn’t invoke Article 50. However, there is nothing in the European treaty that allows for that possibility.
As things stand, the UK is arguably still involved in the decision making process of whether to leave the EU or not, in accordance with the British constitution. The referendum is hugely important, and Westminster should ignore it at their peril – but given that it isn’t legally binding on the British Parliament, then it means absolutely diddly squat under European law.
Until the Article 50 notification is invoked, legally absolutely nothing has changed between the UK and the EU. This is why Juncker’s smart-ass riposte to UKIP in the European Parliament isn’t all that clever at all. Politically, pressure is mounting, and feelings are obviously running high, but the UK remains a full Member State – something which everyone would do well to recognise.
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If you’re looking for some good legal resources (some with particular political slants), check out the following blogs:
![R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513](https://i0.wp.com/iamsteve.in/wp-content/uploads/2016/11/screen-shot-2016-11-03-at-13-35-32.png?ssl=1)
