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Brexit And Believing In Britain's Constitution

27/01/2017 11:10
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As the UK Supreme Court in the Brexit case has made clear, the sovereignty of Parliament is at the core of the UK's constitutional framework. Arguably, Parliamentary sovereignty and a binding commitment to the rule of law are the only principles of the UK constitution. Parliamentary sovereignty or supremacy means that Parliament trumps. The history of these islands has been an ongoing battle to confirm this. Theresa May's saga with the courts over who can authorize Brexit, Parliament or the Prime Minister, is yet just another chapter of British history. She should, of course, have known better, and no doubt her constitutional affairs advisers should have told her she did not have the authority to end unilaterally the UK's legally binding relationship with the EU. The extraordinary thing about May's Brexit strategy is that there is a whiff of King James II's attempts at autocracy about it. Even the judge bashing conjured up images of the 1680s.

So if the Westminster Parliament is sovereign, how does popular sovereignty - via referenda - fit with the principle of Parliamentary sovereignty? Can the popular "will of the people" in turn trump Parliament? The simple answer must be no. There is no meaningful place in the UK constitutional framework for referenda, unless or until the UK deliberately changes its constitutional arrangements.

MPs now have to unpick what the outcome of the referendum means, particularly in the context of the European Communities Act 1972 that incorporated EU law and rights emanating from the EU into UK law. Our Parliament was elected in 2015. All of the current MPs with the exception of one were elected on the basis of manifestos that supported broadly EU membership. There were nuances and, of course, the Conservative Party manifesto contained a commitment to hold a referendum on EU membership. But with the exception of UKIP's one MP, no political party campaigned expressly to leave the EU.

According to the UK constitution, the constituency of Parliament reflects the 'will of the people'. In turn, in 2015 Parliament passed the act establishing the referendum which took place on 23 June 2016. The lack of scrutiny and engagement with the Referendum Bill as it went through Parliament is scandalous. Corbyn's Opposition have questions to answer. Parliament has authorized referenda in the past: we've had half a dozen or so since Wilson's first referendum on EEC membership. But nobody has tried to work out how they work and what they mean. Should there be thresholds and safeguards? How do we interpret non voting? These questions have been largely dismissed because past referenda have always maintained the status quo or given effect to democratically elected government policy. The referendum on EU membership can be nothing more than advisory in the context of the UK constitutional framework.

The outcome of that referendum was inconclusive. The statistics can be presented in multiple ways: 52% voted to leave, 48% to remain; or alternatively, 37% voted to leave, 36% to remain and 27% didn't vote, meaning 63% did note vote to leave. How do you factor in the non voters? The obvious conclusion to draw is that they want to retain the status quo. But what is in no doubt is that the referendum does not indicate a settled will of the people of the UK. Referenda are, of course, dodgy. Can major policy questions ever be reduced to a simple yes or no answer? They are also vulnerable to demagogy and other extraneous influences, but, more importantly, the UK system of government doesn't do referenda. Our constitutional principle premised upon Parliamentary sovereignty is that we elect MPs on the basis of their manifestos to think through these issues for us, and if we don't like the results of their policies we can in due course elect other MPs whose policies we prefer.

As the Supreme Court has made clear, it is now for Parliament to interpret the outcome of the referendum, not the Prime Minister. It is therefore the role of Parliament, which was elected on the basis that all the political parties but one had a commitment to remain connected with the EU, to clarify what the outcome of the referendum means.

Had we a Prime Minister who believed in Parliamentary sovereignty she or he would at some point after the 24th June have put various options to Parliament. These should have been debated in an open and transparent way, thus informing the entire nation of the issues at stake as well as the Members of Parliament who in turn would vote on the matter.

Is Brexit a party political issue? In theory, no. People from all political traditions voted either to leave or remain (and people from all political traditions chose not to vote). The current Prime Minister's fundamental failing has been to turn the outcome of the referendum into Conservative Party policy, both in terms of keeping that party together and claiming ownership of Brexit (despite having voted to remain). It is not only the Tory Party that is changing its manifesto commitments in light of the referendum. It is also the Labour Party. Let's not forget the 23rd June was a shock for everyone. Would those who voted Conservative or Labour in 2015 have done so had they known that the party they voted for would change its policies on EU membership so fundamentally in the light of an inconclusive referendum vote? The Conservative's slim 6-seat majority comes from snatching Lib Dem seats, but would those Lib Dem voters who voted Tory be happy with that party's volte face over the EU? To be clear, in 2015 the Tories did not campaign to leave the EU.

Brexit isn't a party political issue, but it is one for the political parties at Westminster to work out and also to frame their own policies around. We know that 37% of those eligible to vote voted to leave, but the Conservative Party narrowly won the last election with a commitment to remaining as part of the European project. What trumps? The outcome of the general election or the outcome of the referendum where 63% of those eligible to vote did not vote to leave? The UK constitutional framework provides the answer to this question. MPs, the overwhelming majority of whom were elected on the basis of remaining, decide, and in due course our political parties will present their policies for re-election and these will be informed by the outcome of the 23rd June referendum. Is the Prime Minister seeking to further undermine the UK constitutional arrangement by presenting the electorate with a fait accompli at the next general election in 2020? Why can't we elect a Parliament on the basis of the positions of political parties vis-à-vis the EU? The respective positions of the Conservatives and Labour need to be put to the people to see how they fair.

Of course it was folly to offer and then hold the referendum in the first place, and we must learn to live with the consequences of it and work out what it means. But ultimately, that should be a job for a Parliament that has been elected in the light of the referendum and its outcome. Brexit will affect all aspects of life in the UK today. We need to have the chance to vote for a political party that reflects what we want or don't want from the European Union. This decision cannot be the Prime Minister's. It is for the current Parliament to work out the options, but ultimately it is for us to vote for the type of UK we want live in.

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