Its assertions on the role of parliament are simply constitutionally wrongby Helen Mountfield / May 30, 2018 / Leave a comment
There has never been a more vacuous phrase than “Brexit means Brexit,” or less clarity about what on earth it will mean as Britain stumbles to the door. In particular, there is still no practicable solution to the Irish border issue, because inconsistent assurances have been given to European Union negotiators and the various UK ideological tribes.
The phase one transition agreement says that in the absence of another acceptable solution for keeping an open Irish border, the backstop is that Northern Ireland will “align” with EU trade rules. The DUP has been promised that there will be no customs border down the Irish Sea either: one rule for the whole UK. The Brexiteers have been promised that there will be no customs union between the UK and the EU. These are three mutually inconsistent promises as to what Brexit means. And both the Treasury and the Bank of England project that whichever version of Brexit we adopt any will make the UK far worse off.
Yet some perverse version of Dunkirk spirit seems to persuade many people, even those who never wanted to leave the EU, that what’s done is done; the only question being how bravely we manage the withdrawal.
This is not true. In debating what might happen next, it is vital to remember what is still legally possible. It is politically, as well as constitutionally important to understand that the deed is not yet done. We are not yet tied to leaving the EU; and in fact the prime minister does not yet have power to take us out. If parliament votes against the terms of whatever deal the prime minister can obtain, then the default fallback position is not that we crash out of the EU, but that we remain in.
After the EU referendum, in the Miller case, the Supreme Court reasserted the basic constitutional principle that it was for parliament, not the prime minister, to decide whether to repeal all EU law by leaving the EU.
The judgment was long and complex, but—in a nutshell—an advisory referendum is not a source of law. It was parliament which took us into the EU, and made its law part of UK law, by passing the European Communities Act 1972. So only parliament had the authority, by passing legislation, to stop…