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Brexit Might Never Happen

By Dan Garner, Nov 17 2016 08:03AM

Many political observers have drawn parallels between the election of Donald Trump and the so-called "Brexit" referendum last June in which a slim majority of voters in the UK indicated their desire to leave the European Union. The UK government has been struggling since that time with what that means and how they are going to make it happen. A recent High Court decision makes it more difficult than Prime Minister Theresa May wanted it to be. An appeal to the Supreme Court will be heard in early December, but the High Court's judgment is likely to be upheld.

There is no provision in the UK Constitution for a referendum, so the Parliament referred the question to the citizens for advisory purposes only. On June 23, 2016, 51.9 percent voted to "leave" the EU while 48.1 percent voted to "remain." The turnout of eligible voters was 72.2 percent, so just over 37 percent of the population voted to "leave" similar to the plurality in the U.S. who elected Donald Trump.

The Prime Minister argued that she had the "royal prerogative" to make treaties and therefore, she could provide notice to the EU of the UK's intention to withdraw. The plaintiffs in the case argued successfully that, since Parliament had voted to join the EU, only Parliament could vote to change the law and withdraw the UK from the EU.

One of the ironies in this dispute is that the Parliament is forced to take a stand on the merits of the question, and the proponents of "Brexit" argued that they wanted to put more power back into the hands of their own government (as opposed to giving up their sovereignty to the EU.) But it is well known that a vast majority of the Members of Parliament favor remaining in the EU, so they have to decide their appropriate role as elected representatives. They are not legally bound by the results of an advisory referendum.

Under Article 50 of the Treaty on European Union (the "Lisbon Treaty") when a member gives notice of its intent to withdraw from the union, it triggers a 2-year negotiation of the terms of its withdrawal, but the decision to "leave" is irrevocable once Article 50 is invoked. Since that would have inevitable effects on the legal rights of UK citizens, it is a decision that must be made by Parliament.

The Members of Parliament find themselves in the same position as the electors in our own Electoral College, serving as the final check against the tyranny of the majority. My prediction is that Parliament will decide it's just too difficult to withdraw from the European Union. I also predict that the Electoral College will choose the easy path and elect Donald Trump as the next President of the United States.

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