Nuts and Bolts – our Constitution – Heald Law
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Nuts and Bolts – our Constitution

David: “Interesting how the unprecedented situation Brexit presents is straining at the fabric of our unwritten constitution. Also that the main authority is still Erskine May – not much has changed since I was a lad.”

Mary: “Indeed – yet the world has changed. One of the strengths of our constitution is that we are not constrained by rigidity, as we would be with a written constitution, and can respond to the extraordinary situation we are in. We need that right now. This conversation is not about whether we should leave or remain – nor is it about the various options for resolving what we as a nation do, it’s about how we decide.”

David: “We still have basically the same constitution we had before the industrial revolution and the invention of the telephone. How does it work in a world where social media can swing people one way or another in days? The referendum delivered a close result. Some people want another referendum arguing the first was undeliverable, based on lies, and was a vote to leave but not saying where we go. Those are probably Remainers. Then the Leavers want the result to stand because they get what they want – possibly (except parliament has voted against a hard Brexit). Parliament reflects the division in the country. In that sense ,it is fairly representative.”

Mary: “The parties fear an election will split them and anyway it is quite likely to result in another stalemate, reflecting the mixed views of the nation – democracy at work. The old system requires the elected government to govern. However the government is split and so can’t govern. The Opposition is split in the same way – species of Leavers and Remainers. An unedifying spectacle of MPs baying simultaneously for what they want. Hopeless. I believe the indicative votes by MPs are a useful development in moving to the point of greatest consensus. ”

David: “Yet this removes policy making from the government to MPs – a bit like when parliament removed ‘The Divine Right of Kings’ from Charles 1 – along with his head. There is that precedent!”

Mary: “Genius – it’s true. Though these days a resignation will suffice.”

David: “OK – well thinking off the page – what about the 5 million + who have signed the petition to revoke Article 50 compared to the petition for a hard Brexit at ½ million signatures? Then there’s the march in London supporting another referendum – all democracy at work. If parliament cannot bind its successors – surely the electorate can’t bind itself either? If there’s enough momentum for another referendum, it’s a potential solution. There’s nothing in our constitution about referenda – and whether there needs to be a majority of a percentage of votes – or just first past the post.”

Mary: “Personally I always thought there probably would be another referendum and everything since has served convinced me it is likely to end up being the only way out of deadlock. ‘When you have eliminated the impossible, whatever remains, however improbable, must be the truth’. Sherlock Holmes says so!’”

David: “Let’s see what the indicative votes say – and if they open up a way forward. We live in interesting times – even if many of us have had enough of it. We have started – and we must finish.”

Following the indicative votes, as expected MPs did not agree on a way forward for Brexit. However there was almost a majority in favour of Ken Clarke’s proposition we stay in the Customs Union and also for Margaret Becket’s process proposition for anything parliament agrees to be put to the public in another referendum. The two propositions could be combined, they’re not inconsistent. This new process may produce a workable compromise if the May deal fails a third time or is not voted on again. Either way the House of Commons has a precedent it can use in the future if needed. We shall see where it leads us.

David Dees advises businesses on commercial and company matters with a practical approach david.dees@healdlaw.com Mary Banham-Hall and the Heald family team sort out divorces and separations with good sense and kindness keshini.rajendra@healdlaw.com and mary.banham-hall@healdlaw.com