Thursday's High Court ruling might just stop the rotby Stephen Kinnock / November 4, 2016 / Leave a comment
At the heart of the Leave campaign was the argument that Brexit would enable the British people to “take back control,” primarily by restoring parliamentary sovereignty. Those three words resonated powerfully with the electorate, and had a decisive impact on the result. I campaigned passionately for “Remain,” but, first and foremost, I am a democrat and there is no doubt in my mind that the people’s will must be done—we must leave the EU. However, it has become equally clear since 23rd June that “take back control” apparently means very different things to different people, and yesterday’s court ruling has thrown those differences into sharp relief.
Exiting the EU could have been an opportunity for democratic empowerment—a means of rebuilding trust in our politics and institutions. But instead what we have witnessed is the unedifying spectacle of an over-bearing executive seeking to seize control by unilaterally imposing its version of Brexit on the British people.
I hope that this High Court ruling will help the government come to its senses—to start listening and stop dictating. The Prime Minister should reverse her decision to appeal through the Supreme Court—let’s get this issue out of the courtrooms and onto the floor of the House, where it belongs.
But yesterday’s ruling was also important in giving the decision to leave the EU legal force. If the government were to ignore this ruling then it would cast doubt on its ability to trigger Article 50, the first paragraph of which states:
“any Member State may decide to withdraw from the Union, in accordance with its own constitutional requirements”
The next paragraph goes on to state that a member of the EU that has decided to leave must inform the European Council of this intention: in other words, notification is secondary to a constitutionally sound decision to trigger Article 50.
The referendum was, technically, advisory, so for it to have constitutional force, and therefore for the triggering of Article 50 to have full legal force at a European as well as UK level, it will require a Parliamentary vote. If the United Kingdom’s sovereign parliament has not voted to invoke Article 50, then Britain will not have acted “in accordance with its constitutional requirements.” Failure to go through due process leaves the government exposed to the risk of a range of legal challenges, which could make the furore surrounding yesterday’s ruling look like a walk in the park.
This may sound like constitutional nit-picking, but it really matters because it could, in fact, be an obstacle to Brexit itself. That is why a parliamentary vote is not only politically necessary—23rd June was a vote for departure, but not destination—it is also constitutionally and legally necessary if we are to ensure that the will of the people is enacted.
The essence of yesterday’s ruling was that Parliament is sovereign. That is not a radical idea, rather, it is one of the fundamental principles of our uncodified constitution: we are a parliamentary democracy, and the role of parliament is not just to scrutinise and pass legislation, but also to play an active role in governing. Let us not forget, the executive is drawn from the legislature because the legitimacy of the former is derived from the sovereign power of the latter.
The Prime Minister has told us parliamentary scrutiny should suffice, that the executive should be allowed to conduct the negotiations free of further parliamentary involvement. That is patiently absurd, because we are being asked to scrutinise a negotiating position that has been kept secret from us. For that reason a binary motion on “should we or should we not invoke Article 50?” is insufficient as it would still leave us in the dark as to what it is that we are meant to be scrutinising. However, if that is all we are presented with, then I would vote to invoke Article 50.
But if we want to take back control we should: and that has got to start with a politically and constitutionally necessary parliamentary vote on the terms of Brexit. If the government were to do anything else, then the British people would rightly ask: “what is the point of Parliament, anyway?”
Having campaigned for an independent, assertive and sovereign parliament, the life-long Brexiteers now seem eager to throw themselves, and the mother of all parliaments, supine and prostrate at the feet of the executive.
But I won’t stand for that. Our representative parliamentary democracy is not a pick-and-mix deal; it’s not there for politicians to use at their convenience: it is absolute, not relative. The referendum was about a choice on our membership of the EU, not about bulldozing our democracy.
The government is in place by virtue of its ability to carry the confidence of the House, so it should not be beyond the wit of this government to present MPs with a position that can command the support of a majority of MPs. This would strengthen the hand of the government when it comes to negotiations with the EU 27, as the Prime Minister will be taking a double mandate to Brussels, Paris and Berlin: that of the British people for Brexit; and that the people’s representatives for what Brexit actually means.
So this is not about a veto, it’s about a vote. This is not about bitter “Remainers” trying to block Brexit, but about patriotic parliamentarians determined to stand up to a bullying executive, to ensure that the national interest is served. I believe that means working for a balanced Brexit, one that reconciles the desire for more effectively managed immigration with maximum access to the Single Market, because no one voted on 23rd June to make Britain’s economy weaker, or to make our society more fractured. And absolutely nobody voted to neuter our democracy.
Theresa May has played her hand poorly, every step of the way. Her appointment of the three Brexiteers was a superficially smart tactical move that has turned out to be toxic. They’ve spent more time briefing against colleagues than they have getting on with the job at hand, and their hubristically gung-ho attitude is the last thing you want when you’re entering into a set of delicate and complex negotiations.
And then there was her menacing, knee-jerk conference speech, which simply gave Donald Tusk carte blanche to say that there will clearly not be a soft Brexit.
And now there is this court ruling. By all accounts the arguments put forward by the government lawyers were pitifully poor, lacking any real substance or intellectual rigour.
But there is still time for the Prime Minister to get back on track. She can and should trust parliament to have a sober and measured debate, followed by a vote, on the basis of the broad principles of her negotiating stance.
In the final analysis, this boils down to leadership. The referendum was a deeply divisive and traumatic experience for our country. It divided young from old, cities from towns, and it drove a wedge between communities. The Prime Minister can either act now to start re-uniting our country, or she can continue to polarise it.
The choice is hers.
On the 17th of November, Prospect launched Brexit Britain: the trade challenge. A publication designed to act as a guide for parliamentarians, officials and businesses with a stake in the UK’s changing relationship with the world following Brexit. To see the complete contents of the report please click here.
For speaker and partnership opportunities, please contact email@example.com.
You can also receive the full “Brexit Britain: the trade challenge” report as a fully designed PDF document. To do so, simply enter your email below. You’ll receive your copy completely free—within minutes.