Brexit

[Slobodan Blagojevic]

I am neither doctor, nor a lawyer (while some recent participants in this thread actually are both, btw). But I watch TV medical characters, like Dr. House. In every episode, the plot goes pretty much the same: in the quest for the right diagnoses, he and his team usually go through at least two or three wrong ones. And each time they pressure the patient or parents or significant others to sign a consent form. The message is the same: you either sign or you die. So how "informed" is that consent? When a team of doctors doesn't really know what is going on (until they do), how "informed" is that consent? Even if you would, magically, manage to graduate from a medical school in between the moment you are asked to sign and the moment you do (five minutes later), how really "informed" would that consent be?

And back to the topic: who's to say that the info given to voters is true, even if they read it? Are some people, or some social groups, or some governments, magically blessed by only telling the truth, with no self-interest, errors of judgment, no hidden agenda, etc.? And what exactly is that truth in complex issues, where emotions and cold numbers intersect, for instance? And who is to say that cold numbers should always supersede emotions?

[Rob C]

I am neither doctor, nor a lawyer (while some recent participants in this thread actually are both, btw). But I watch TV medical characters, like Dr. House. In every episode, the plot goes pretty much the same: in the quest for the right diagnoses, he and his team usually go through at least two or three wrong ones. And each time they pressure the patient or parents or significant others to sign a consent form. The message is the same: you either sign or you die. So how "informed" is that consent? When a team of doctors doesn't really know what is going on (until they do), how "informed" is that consent? Even if you would, magically, manage to graduate from a medical school in between the moment you are asked to sign and the moment you do (five minutes later), how really "informed" would that consent be?

And back to the topic: who's to say that the info given to voters is true, even if they read it? Are some people, or some social groups, or some governments, magically blessed by only telling the truth, with no self-interest, errors of judgment, no hidden agenda, etc.? And what exactly is that truth in complex issues, where emotions and cold numbers intersect, for instance? And who is to say that cold numbers should always supersede emotions?

Slobodan, in the case of Dr House, it's always lupus first shot. Which is, actually, good clinical procedure: with time, the odds are going to be in your favour. Just like the lottery, you see?

Rob

[jfirneno]

Considering ‘informed consent’ in the UK health care environment, no intervention can be made without this, given in writing, at least in the case of operative procedures. It would probably be a criminal offence in most situations to make an intervention without such informed consent.

Wouldn't it be more honest to just say out loud that only people who agree with you should have the right to vote?  "Some animals are more equal than others."

[MarkJohnson]

Hi jfirneno - no, it wouldn't!

[jfirneno]

Hi jfirneno - no, it wouldn't!

Gee, it's funny cause that's exactly what it sounds like.  The only excuses you left out were that:
1) The voters' shoe laces were untied.
2)  The sun was in their eyes.

[pegelli]

I think the problem with the Brexit referendum is that everybody who voted leave didn't know what they voted for, other then to leave under unknown conditions.
They just had faith that a group of politicians would be able to negotiate a better deal then they have today being part of the Union.

I think for a referendum to make sense (certainly one which can be decided by a simple/single majority) both alternatives need to be crystal clear, if not you get the mess that's been created now. 

[jfirneno]

I think the problem with the Brexit referendum is that everybody who voted leave didn't know what they voted for, other then to leave under unknown conditions.
They just had faith that a group of politicians would be able to negotiate a better deal then they have today being part of the Union.

I think for a referendum to make sense (certainly one which can be decided by a simple/single majority) both alternatives need to be crystal clear, if not you get the mess that's been created now.

I think the problem is that the people who don't like the result are looking to find an excuse to ignore what people voted for.  It's called hypocrisy.

[pegelli]

I think the problem is that the people who don't like the result are looking to find an excuse to ignore what people voted for.  It's called hypocrisy.

I never said I want to ignore the result and I never said I didn't like the result.
You either need to improve your reading skills or retake your clairvoyance classes.
You are just scapegoating anybody who has any critical comment on the referendum.
Good luck, it's an excellent way to kill any meaningful discussion here.

[jfirneno]

I never said I want to ignore the result and I never said I didn't like the result.
You either need to improve your reading skills or retake your clairvoyance classes.
You are just scapegoating anybody who has any critical comment on the referendum.
Good luck, it's an excellent way to kill any meaningful discussion here.

It is hypocrisy precisely because the people who voted to leave are the older people who have lived through the decades long process of the EU proving that it is an ever more obtrusive bureaucracy that answers to no one, and least of all to the local voters.  This was their one chance to escape.  Saying that they were misled is laughable.  The young people are the ones who lack perspective on what the future holds for them.  Calling out someone for saying patently absurd things is not scapegoating it's commonsense.

[Christopher Sanderson]

It is very rare indeed that I receive complaints about posts in the Coffee Corner. I choose to ignore them for the most part as I will with this one.

Keep it civil or be gone!

Chris

[Farmer]

It is the young ones, particularly those who were not yet old enough to vote, and those not yet even born, who will have to live with the results for the most part, rather than the older generations.

It is outrageously pompous, presumptive, and condescending to suggest that those who voted to leave were "too young to understand" or that they lacked "perspective".  The older generations needed simply to wait in order to "escape".

[pegelli]

It is hypocrisy precisely because the people who voted to leave are the older people who have lived through the decades long process of the EU proving that it is an ever more obtrusive bureaucracy that answers to no one, and least of all to the local voters.  This was their one chance to escape.  Saying that they were misled is laughable.  The young people are the ones who lack perspective on what the future holds for them.  Calling out someone for saying patently absurd things is not scapegoating it's commonsense.

I never said they were misled. Have you taken lessons from Don Quichote for fighting windmills? Does it ever occur to you that people can be critical of the referendum while being OK with the outcome of the vote? I think the only one who is absurd in this thread is you because you assume that any critical note is automatically being against the outcome.

[Slobodan Blagojevic]

I never said they were misled...

Perhaps you didn't, but some other people did quite recently, and you just got caught in the crossfire.

[pegelli]

Perhaps you didn't, but some other people did quite recently, and you just got caught in the crossfire.

Might be, but I'm not sure. Why is he quoting my post then?

[Manoli]

.. because Parliament has fashioned a limited and narrow obligation to tell the truth to the electorate in the context of general elections, but did not  choose to impose a similar obligation during referendum campaigns.

John Halford, of Birdmans LLP, back in July 2016 :

Uncovering the smoking cannon:  can anyone be held accountable for untruths told and overspending during the EU Referendum campaign?

In the aftermath of the EU Referendum, many have expressed the view that the outcome would, or at least could,  have been different had the Leave campaign being conducted differently.  It has also been suggested that there may have been overspending in breach of the strict rules for Designated Organisations, which receive a public subsidy for their campaigns, and by other campaigners.  What, if any, remedies does the law provide? There will be few lawyers have not been asked this question over the last week but the answer is not straightforward.

The starting point is the European Union Referendum Act 2015 which lays down the framework within which the Referendum was conducted.   In contrast to election statutes, it includes a petition mechanism for the result to be set aside. The Act briefly mentions that judicial review claims in respect of the Referendum have to be brought within a truncated six-week time period, but says nothing about the basis of such a claim.   The fact judicial review is recognised on the face of the Act as a possibility must mean Parliament contemplated such a claim being brought in certain circumstances. What might they be?

Judicial review claims are essentially concerned with the legality or procedural fairness of the decisions or actions of public authorities.  Plainly, members of the public cannot be challenged in this way regardless of how they vote or why. Democracy allows an irrational vote to be cast and values equally to one cast by the voter who has conscientiously taken account of all relevant considerations. It is also clear that some significant procedural irregularity on the part of  returning officers or other public officials that would have made a difference to the outcome could be the subject of judicial review claim.   But as regards this referendum,   a sufficiently egregious and large scale error by officials would almost certainly have come to light by now.

Campaigning on the basis of false or misleading statements is nowhere mentioned. That suggests, in the face of things, that however unethical it may be, it is not prohibited. That might be thought surprising, particularly when at least one Leave campaign assertion – the £350 million per week savings to be made as a result of Brexit – was identified as  misleading by public and private organisations,  but nevertheless sustained.

There is no real prospect of the courts reading in a duty not to knowingly or recklessly make such statements during a referendum campaign into the Act,  less still to enforce it by making a ruling that would force a second referendum  to answer the same question put to voters.  That is primarily because Parliament has fashioned a limited and narrow obligation to tell the truth to the electorate in the context of general elections, but did not  choose to impose a similar obligation during referendum campaigns. The election duty is found in section 106 of the 1983 Representation of the People Act which provides:

“A person who, or any director of any body or association corporate which—

(a) before or during an election,

(b) for the purpose of affecting the return of any candidate at the election,

makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, the statement to be true.”

Even had this appeared in the 2015 Act, and it does not, the obligation does not extend to statements about policies or consequences  and indeed the courts have expressly recognised  that there is no accountability at law  for such statements: see Gibson J in The North Division of the County of Louth (1911) 6 O’M and H 103  at page 163 (approved of in what is now the leading case, R (Woolas) v The Speaker of the House of Commons [2010] EWHC 3169 (Admin)).  The European Convention on Human Rights provides no help either. Free and fair elections are guaranteed, not so  free and fair referenda.

Other legal and regulatory remedies would not affect the outcome of the referendum.  If, for example, a campaigner were successfully prosecuted for incitement to racial hatred or some other public order offence, the referendum result would be unaffected.  The same is true of complaints that might be made relying on the codes which regulate the conduct of Ministers, Members of Parliament and MEPs.  Political speech is specifically excluded from the regulatory regime for advertising.

The position on overspending might be different, however. If there were compelling evidence of the spending limits set down in the 2015 Act being contravened, either by a Designated Organisation, or  one or more other campaigners,  the Electoral Commission would be able to investigate and even has powers to hold an inquiry.  But the deadline for reporting campaign expenditure expires in December, many months after a direct challenge to the outcome of the referendum would be possible based on the findings of a Commission investigation. In theory then, if there was  the most egregious breach of the referendum expenditure rules that could be shown to have  materially influenced the outcome,   the courts just might be persuaded to intervene now by way of judicial review.  At present, there is no real evidence the rules were breached in that way. If there is a smoking cannon, it remains hidden.

It follows that the remedy for concerns about the outcome of the referendum having been distorted is almost certainly a political, rather than a legal, one.  Political because the referendum advises Parliament of the views of those who voted in it, but does not oblige Parliament to withdraw the UK from the EU at all costs.  And when deciding what to do next, MPs and peers can certainly take into account the extent to which those  they represent, whether Leave or Remain voters, were misled if there is compelling evidence of that having happened. Similarly, if members of the public have evidence of expenditure irregularities, that should be brought to the Election Commission’s attention urgently as it may be able to investigate and advise parliamentarians before a decision to evoke Article 50 of the Lisbon Treaty is made.

 

John Halford
Bindmans LLP

[jfirneno]

Leaving the EU would be a massive intervention in the lives of British citizens, altering the whole political, economic, cultural and social landscape. So why ought there not to have been a similarly stringent process of informed consent/dissent, if a ‘mandate’ of any sort was to be the outcome of the referendum process? Instead, we were exposed to a charlatan’s parade of misinformation, lies and emotive propaganda from snake oil salesmen posing as responsible politicians, driven by either the interests of their own political careers or those of a jingoistic and most unpleasant assortment of far right Conservatives - surely a travesty of any notion of informed consent, whose perpetrators in other contexts requiring informed consent could be liable to criminal proceedings. Perhaps the point about informed consent should be more prominently voiced.

Pegelli:
If you are actually interested and look at the post that I quoted from you'll see that this is another quote from that post that should provide all the context needed.  Apparently grown people can't be trusted to use their own judgment based on many years of living under the EU system.  You just reacted to my statement to this post.

[jfirneno]

It is the young ones, particularly those who were not yet old enough to vote, and those not yet even born, who will have to live with the results for the most part, rather than the older generations.

It is outrageously pompous, presumptive, and condescending to suggest that those who voted to leave were "too young to understand" or that they lacked "perspective".  The older generations needed simply to wait in order to "escape".

Cool!  All we have to do to escape is die.  Brilliant!

[pegelli]

Pegelli:
If you are actually interested and look at the post that I quoted from you'll see that this is another quote from that post that should provide all the context needed.  Apparently grown people can't be trusted to use their own judgment based on many years of living under the EU system.  You just reacted to my statement to this post.

I never reacted to any statement you made, don't make up things and if you're in a hole stop digging. Why would I react to anything you say? It's no use anyway, you made up your mind and anybody who is even mildly critical gets scapegoated and you accuse them from not liking or not accepting the result and then call them hypocrites. That way it's pointless to have any discussion with you on the results and/or process of the referendum.
All I did was making a single remark about why I think the referendum wasn't the best conceived process by the British politicians and then you start assuming all kind of things I said (and didn't say) and start calling me a hypocrite. That's what I react to, not the actual referendum or any of the remarks you made about them.

[jfirneno]

I never reacted to any statement you made, don't make up things and if you're in a hole stop digging. Why would I react to anything you say? It's no use anyway, you made up your mind and anybody who is even mildly critical gets scapegoated and you accuse them from not liking or not accepting the result and then call them hypocrites. That way it's pointless to have any discussion with you on the results and/or process of the referendum.
All I did was making a single remark about why I think the referendum wasn't the best conceived process by the British politicians and then you start assuming all kind of things I said (and didn't say) and start calling me a hypocrite. That's what I react to, not the actual referendum.

I'll take your word for it.

Have a nice day.

[pegelli]

I'll take your word for it.

Have a nice day.

Don't take my word for it, just read my post and it will be blatantly obvious that you've been carried away in your cynical negative reaction on any critical remark about the Brexit referendum.