Parliament and Brexit



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.

Comments

  1. Frances, I agree these are extraordinarily important issues, perhaps the most constitutionally important of all. And I agree that the "debate" in the country was not always of a very high quality. Nonetheless there was a great deal of information and public discussion, which must have played its part in leading to the 71.8% turnout. (I recall after the 2015 General election people worrying that its 66.1% level was a sign of poor political health.)It's also very interesting that places like Glasgow had a 56.3% turnout but the South-East and South-West were over 76%.
    I also think that in the run up to the vote nobody (apart from maybe one or two blogs) said that it was "advisory". Everybody spoke and acted as if it were to be binding, so it must have very substantial democratic legitimacy. On that basis I agree it would be political suicide for MPs and the Government to act as if there had not been a No vote. (That makes me think that any Parliamentary vote to trigger Article 50 can only have one outcome, Yes.)
    Where I would disagree are in three areas:
    • How and who will trigger Article 50
    • The repercussions of doing that
    • The nature of MPs' role
    You draw attention to the legal opinion of the members of Mischon de Reya on the legality of the Government serving notice under Article 50. Of course, these are only opinions, not the outcome of any judicial process. I'm not clear on what and how MdR want to achieve as I can't see what legal standing they have before the Courts, nor if the Courts want to get involved in the politics of Brexit. But there are other, contrary, opinions, to MdR, eg by Mark Elliott. Mark is Professor of Public Law at the University of Cambridge, and Legal Adviser to the House of Lords Select Committee on the Constitution.
    https://publiclawforeveryone.com/2016/06/30/brexit-on-why-as-a-matter-of-law-triggering-article-50-does-not-require-parliament-to-legislate/
    Secondly, once triggered I think it is actually irrelevant what the UK does or does not do in respect of a repeal of the European Communities Act 1972. As I understand it, once triggered the 2 year clock starts ticking to try to conclude new arrangements. If none are reached then the UK leaves automatically (unless every one of the remaining EU states agrees to extend the negotiations). Clearly there would be a major Parliamentary role in agreeing and ratifying any new arrangements, but it cannot overturn the effects of article 50. (Incidentally, I'd be interested if you have any views on whether there ought then to be a Referendum to agree and if it is a simple majority or a threshold test. I suspect we'd need one.)
    The third area is the nature of the role of an MP. Your view is one I'd tend to follow, namely the classic Burkean one that an MP "owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion." That is what you may call the British constitutional convention but I don't think it is a legal position. And as the debate around Corbyn, the role of local labour parties, and Party policy shows, not every political organisation accepts the full impacts of that convention.

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    1. I think MdR's action is mainly of symbolic importance. The point is that exercising royal prerogative to implement the result of a referendum as shoddy as this one would be a failure of democracy. Whether or not there is a legal requirement for it to do so, politically Parliament needs to decide. If it is denied that opportunity, this will go down in history as the end of parliamentary democracy and the start of rule by populist diktat - which is exactly what Brexiters accused the EU of doing. I would prefer not to live in Animal Farm, personally.

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    2. The debate was "not always of a high quality"?! It was the most appalling collection of lies, half-truths and propaganda that UK politics has seen in my lifetime. Moreover, neither side dealt well with the objective facts; neither side had any plan about what to do if there should be an exit vote; and apparently neither side took legal advice on how to manage the situation post-referendum. Summing it up, not one of the main players showed a level of competence suitable for running a small corner shop, let alone the UK.

      As for the determination of who should invoke Art. 50, it is clear that the government of the day should decide whether it wishes to do so. The constitutional issue of whether Parliament has to concur is one caused by two historical facts: that Her Majesty's Government exercises sovereign power on behalf of the Crown; and that there is no written constitution. With regard to sovereign power, this is why the UK is a dualist legal system -- with no real linkage between international treaties signed and domestic law. However... accession to the EC changed all that, because UK law had to be revised in order that European Community Law takes direct effect in UK domestic law. Therefore, the exit of the UK from the EU has the complex problem that the domestic legal system has also to be extricated from the EU legal system. Along with all the rights and obligations that exist by virtue of EC Regulation or direct Treaty effect... Only the Parliament has the authority to countermand domestic UK legislation: it is not sufficient for a government merely to denounce an international treaty and then mention -- almost as an afterthought -- "by the way, all of these domestic laws are also rescinded, cancelled or amended".

      Quite frankly, the thing is such a complex mess, with buffoons presiding over it, I do not believe that the UK can go ahead with Brexit and come out intact. The best that could be hoped for is a reduced UK (minus Scotland) and a massively collapsed GDP along with reduced world standing. The worst? Ha! The sky's the limit.

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    3. In the scenario you described, the U.K. would likely lose Trident even under ideal circumstances.

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    4. Gerard van Geleuken5 July 2016 at 08:12

      The Parliamentary Voting System and Constituencies Act 2011 contained a chapter on “Results of the referendum – commencement or repeal of amending provisions”, which clearly stated that the proposed changes would become law if a majority voted in favour.
      But there’s nothing like that in the EU Referendum Act, from which we can reasonably conclude that in this case Parliament had no intention of abdicating its powers, and that the referendum was consultative/advisory.

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  2. While the nation as-a-whole has spoken on Brexit, it is too much to ask MP's representing sub-nation components-who-opposed-Brexit to now deny their consistences and support the vote of the nation-as-a-whole. One solution for this inherent conflict is to have a second election, this time of all the MP's, to confirm the Brexit vote with a sub-national vote on representatives.

    It would be up to these newly elected (or reelected) representatives to carry out (or not) Brexit.

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    1. I don't agree with holding a General Election on a single issue. I refer you to my comment that we elect people, not policies. The present Parliament is well able to judge whether this result should stand. Let them decide.

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  3. Parliament is clearly sovereign and should remain so but is a referendum not a case where parliament exercises it's sovereign position by deciding that the political decision will be delegated to a public vote? - parliament then simply rubber stamps the outcome. But then if you are saying that parliament can again exercise it's sovereignty by overruling its original decision to delegate the decision making process, we would need to be much clearer that referendums are just polls to guide parliament in making decisions. I don't think the public gets much confidence in an executive that overrules itself when it feels like it.

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  4. You have secret courts judging evidence the accused never sees. You've recently expelled someone gaoled for 9 of the last 13 years and never charged with anything. You have a dissident holed up in an embassy in London for more than 3 years. Whether it be privatisation or the middle east, parliament has no apparent problem ignoring the public will for decades, and your cherished supremacy of parliament has already been surrendered to Europe. Everyone's communications are read and stored. There are cameras everywhere. Your cosiness with dictators is becoming difficult to ignore. There are unanswered questions about some mysterious deaths. David Kelly. And all this is the result of 30 years where, with the US, you've shared undisputed leadership of the world. If you're worried about the rise of a tinpot dangerous regime, too late.

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    1. I don't recognize the other cases, but the dissident in an embassy in London is there of his own free will, because he wants to avoid a rape trial in Sweden, another EU country. This is, by the way, a process rooted in EU justice, not British.

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  5. That due law and process should be followed makes sense, however in reality it makes not one iota of difference except in the timing. I somewhat disagree about whether we vote for people or for representatives of our views and think it is a mixture of the two. Even that does not exactly feel right and perhaps we choose a best fit political ideology while selecting a individual to represent our constituency (with the individual perhaps being from a different party to our ideological choice). I don't think we have much choice if we want to affect outcomes without proportional representation.
    For me there is a different discussion which parliament needs to have before triggering with respects to trade deals moving forwards with an explanation of what the choices mean for the population. We cannot enter any trade discussions while still members of the EU (in theory anyway) and it is just assumption that we can use WTO default rules because Britain is not an individual member. We could take a unilateral free trade approach, but all subsidies and limits would have to be removed (think drug price setting in the UK and farming/manufacturing subsidies, however we could in theory ignore patents and copyright). We may find ourselves in a position where we have no option but to have unlimited immigration. I would rather a strategy is in place before Article 50 is triggered so anything which potentially delays triggering gets my support.

    Brick

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  6. http://escoriallaan.blogspot.be/2016/07/the-eu-should-take-side-of-losers-of.html

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