I spent much of this weekend arguing on Twitter. (Yes, I know, nothing new there….) Specifically, arguing that Brexit cannot go ahead without Parliament. I said that before Article 50 is triggered, the result of the referendum must be debated by the full House of Commons, and ratified by a free vote.
Unsurprisingly, since I openly supported Remain, a number of people assumed that I was suggesting this as a way of overturning the result. They are wrong. I think a Parliamentary vote is necessary not to overturn the result, but to confirm it.
This referendum was in many ways a travesty. It did not require an absolute majority: even a few votes would be sufficient to end forty years of EU membership. There remains a grumbling unease that a majority of the UK population did NOT vote for Leave. and as I have noted before, the conduct of the campaign was shocking. The lies and deception on both sides were so extensive that people cannot possibly have made a fully informed decision.
All of these are good reasons to have a second referendum. But that is not what I am suggesting. I do not think a second referendum is advisable. In fact I never, ever want there to be another referendum.
What I want is for the UK’s parliamentary democracy to work. The referendum has undermined it.
In this referendum, unlike the Scottish referendum, Parliament did not bind itself to implementing the result. It asked for people’s opinion, not their decision.
The Government said it would do whatever was decided – but it actually had no right to promise that. Parliament is sovereign over Government and cannot be bound by it. The decision about the UK’s future properly belongs with Parliament. Parliament must decide.
The trouble is that people believe the referendum is binding. And since a majority of MPs supported Remain, Brexiters fear that Parliament would overturn the result. My discussions on Twitter revealed a shocking level of ignorance about how our representative democracy works: among other things, people routinely confused Government and Parliament, thought that general elections elect governments and believed that politicians are elected on a “mandate” to enact policies. None of these is true. We elect people, not policies, and MPs not governments. Parliament is not Government, and Government is appointed, not elected. It is not the EU’s system that should be taught in schools – it is the UK’s.
But even more worrying was the number of people who regarded a paper-thin majority on a badly-set-up advisory plebiscite as “more democratic” than a free vote of our elected representatives in Parliament, and called for Parliament to be either bypassed completely or prevented from overturning the result by means of retrospective legal binding. This fundamentally undermines the UK’s parliamentary democracy – and it is terribly dangerous. Some of the most unpleasant regimes on earth have started out as grass-roots movements which overturned established systems of democratic government.
It is indeed possible that Parliament might decide that Brexit should not go ahead. But if we are to have a parliamentary democracy AT ALL, the decision of Parliament must be sovereign. It is apparent that a significant proportion of people don’t trust Parliament, but kowtowing to their fears would merely reinforce them.
Personally I hope Parliament doesn’t do anything so damn stupid as overturning the result, since this would drive a wedge between Parliament and people, opening the door to populism and a lurch even further to the Right. But for the sake of our democracy, we must allow Parliament to make that decision.
Admittedly, the system does need reform, since there is a growing belief that Parliament no longer adequately represents the people: the UK’s first-past-the-post system entrenches major parties at the expense of minority interests, and a surprisingly small proportion of the electorate need to vote for a major party in order for it to be invited to form a government. But this is emphatically NOT a reason to bypass it, undermine it or water it down. This referendum is advisory. Parliament must ratify its result in order for Brexit to proceed.
Of course, Brexit cannot complete without a Parliamentary vote anyway. It requires repeal of the European Communities Act 1972, and only Parliament can do that. The argument is about the formal notification of withdrawal under Article 50 of the Lisbon Treaty that the UK is obliged to give. Some have argued that Article 50 could be triggered by the incoming Prime Minister using the “royal prerogative”, a relic of the days when the Crown could do as it liked. Constitutional lawyers have been arguing back and forth about this for a few days now.
Using royal prerogative to trigger Article 50 would render the 1972 Act a “dead letter, leaving Parliament with nothing to do. Nick Barber, Tom Hickman and Jeff King argue that this would breach both UK constitutional law and – interestingly – the provisions of Article 50 itself:
Our membership of the European Union has conferred a host of legal rights on British citizens, some through incorporating statutes, some granted directly in domestic law. Applying the common law principle found in The Case of Proclamations and Fire Brigades Union, the Government cannot remove or nullify these rights without parliamentary approval. Its prerogative power cannot be used to overturn statutory rights. Statute beats prerogative.
This has significance not only in terms of our domestic law, but also for EU law. Article 50 specifies that a decision to leave the European Union must be made in conformity to a Member State’s constitutional requirements. If the Prime Minister sought to issue an Article 50 without parliamentary approval, it would not satisfy this test; it would not be effective in European Law.
They say that Parliament must give permission for the Prime Minister to trigger Article 50:
Before an Article 50 declaration can be issued, Parliament must enact a statute empowering or requiring the Prime Minister to issue notice under Article 50 of the Treaty of Lisbon, and empowering the Government to make such changes to statutes as are necessary to bring about our exit from the European Union.
And they mean business. Their firm, Mishcon de Reya, is launching legal action to force through a requirement for the Brexit vote to be ratified by Parliament. Kasra Nouroozi, a partner at Mishcon de Reya, commented:
We must ensure that the Government follows the correct process to have legal certainty and protect the UK Constitution and the sovereignty of Parliament in these unprecedented circumstances. The result of the Referendum is not in doubt, but we need a process that follows UK law to enact it. The outcome of the Referendum itself is not legally binding and for the current or future Prime Minister to invoke Article 50 without the approval of Parliament is unlawful.
We must make sure this is done properly for the benefit of all UK citizens. Article 50 simply cannot be invoked without a full debate and vote in Parliament. Everyone in Britain needs the Government to apply the correct constitutional process and allow Parliament to fulfil its democratic duty which is to take into account the results of the Referendum along with other factors and make the ultimate decision.
Nouroozi is right. For a Prime Minister to bypass Parliament on such a serious constitutional matter would turn the UK into a tinpot dictatorship. The people have spoken, yes – but now Parliament must decide.
This referendum was supposedly about restoring sovereignty and protecting democracy. It would be appalling if it were implemented in a manner which destroyed both Parliamentary sovereignty and democracy.
So whether you voted to Remain or to Leave, you should support Mishcon de Reya’s action. Resist those who want a new Prime Minister to trigger Article 50 without reference to Parliament.
Support our parliamentary democracy, and defend our constitutional law.
Let Parliament decide.