My initial post on the potential for use of the little-used Sustainable Communities Act 2007 (SCA), to create an innovative legislative route away from what is now very clearly the impending catastrophe of Bexit, has now had a large number of views.
It is, at first sight, so left field that no-one in the media or legal professions has felt able to speak up about it, presumably for fear of of people querying their professionalism. That’s the way the world works. Even so, it’s good to know there’s some early though quiet traction.
To recap briefly:
1) The idea is for local authorities, initially in strong Remain areas, to make proposals (or joint proposal) under the SCA for an amendment to the European Communities Act 1972 (ECA), to the effect that the relevant local authority areas would remain bound to the provisions of the ECA, even after Brexit.
2) The key provision of the ECA is that European Union treaties “shall be recognised and available in law, and be enforced, allowed and followed accordingly”, and this amendment to the ECA would therefore mean local areas would continue, under law, to be compliant with the EU treaties and therefore, at least arguably, able to remain in the EU, not least because such a step would be in keeping with Article 1 of Lisbon, under which “decisions are taken as openly as possible[ and as closely as possible to the citizen”
Now, it’s easier said than done to build up a head of steam on this. This is not just because it is so left-field, but also because it wouldn’t be clear initially whether such a proposal would be seen a implementable (at least in such a way as to make Article 50 impossible to implement), or whether it would just come across as a way – via local authority consultation and local referendum processes (see also below) – to make clear to the government that people are now less in favour of Brexit, having become aware of the consequences.
But there is a way beyond this institutional inertia too.
It takes just six ordinary citizens who are brave enough invoke another obscure piece of legislation (though, like the SCA, one I’ve personally had a hand in invoking in different circumstances).
Take a bow, the Local Government Act 1972, Schedule 12 paragraph 18 (clauses 4&5), which provides that:
(4) A poll may be demanded before the conclusion of a parish meeting on any question arising at the meeting; but no poll shall be taken unless either the person presiding at the meeting consents or the poll is demanded by not less than ten, or one-third, of the local government electors present at the meeting, whichever is the less.
(5) A poll consequent on a parish meeting shall be a poll of those entitled to attend the meeting as local government electors, and shall be taken by ballot in accordance with rules made by the Secretary of State…..
Added to this is the provision under paragraph 3, clause 1 that, this such a local poll (aka. a local referendum) can be called by just six people:
A parish meeting may be convened by—
(a) the chairman of the parish council, or
(b) any two parish councillors for the parish, or
(c) where there is no parish council, the chairman of the parish meeting or any person representing the parish on the district council, or
(d) any six local government electors for the parish.
Using this process, a small group of people could set up a town-wide referendum, which a local authority is legally bound to conduct ( and to publish the results), within 25 days. The question would be along the lines of:
Should this parish/town [in legal terms a parish and town council are the same] request the local authority area in which it sits to make a proposal under the Sustainable Communities Act to the government about exempting the local authority area from exit from the European Union by way of an amendment to the European Communities Act 1972?
Now, this would only really be a first step, but if done across enough parishes/town councils (a quirk of the legislation is it doesn’t work in non-parished area), it might create enough publicity for a local authority to pick up the idea and run with it, whether or not it one where a poll has been held.
In the end, this might be not much more than creative use of extant law for civic disobedience in the face of wanton government stupidity in getting us into this mess in the first place.
But it might, just might, be more than that.