Why Parliament must have a say on Article 50 and Brexit2
November 5, 2016 by Paul Goldsmith
It is no surprise that even though Steven Phillips voted for Brexit, he has resigned as an MP as a protest at the behaviour of Theresa May and her Government. Their attitude to their rights and responsibilities as those who happen to be holding the baton as the Government of the day just after Britain has decided to Leave the EU goes against the founding principles of conservatism.
Just to be clear, the ONLY instruction given to the government by the referendum was to Leave the EU. There was NO instruction on how to do it, no instruction on whether to prioritise control of borders or the single market, and no instruction on which of the many groups in society that will be affected by Brexit should have their concerns prioritised over others. This is partly down to the clumsy design of the referendum by David Cameron’s Government, and the negligent abdication of responsibility to plan for a Leave vote in particular.
The role of Parliament in a representative democracy is to REPRESENT everyone. That means they absolutely do need to respect the result of the referendum, even though they are not actually legally bound to do so. But they also need to represent the interests of the very large minority in this case, which are the 48% who voted Remain. Had Leave lost but got 48%, they would have rightly pointed out that Parliament needed to represent their opinions more. Direct democracy’s main drawback is the ‘Tyranny of the Majority’, which means that the losers of a referendum effectively get nothing and are thus unprotected from tyranny from even a tiny majority. This is why we have a tradition of representative democracy in this country.
I have read and watched with horror over the past two days of the reaction of May’s Government to the judgement of the three most Senior judges in the land on whether Article 50 can be invoked without Parliamentary approval. To say, as Sajid Javid has done, that the ruling flies in the face of democracy and is an ‘unacceptable attempt to frustrate the will of the British people’ is one thing. Javid is tied by Ministerial responsibility and I can only hope he was quoting the line he was given by the Prime Minister, who after all in her Conference speech back in October said that those saying Article 50 should be voted on by Parliament are trying to kill Brexit by delaying it and “insulting the intelligence of the British people.”
Far more serious is the refusal of Liz Truss, the Justice Secretary, and as Lord Chancellor the person specifically tasked by the 2005 Constitutional Reform Act with the role of defending the independence of the judiciary, to speak out in defence of the judges. Truss’s appointment, which was controversial at the time given her lack of experience in matters of law and reputation as someone more interested in climbing up the greasy political pole than being capable of standing up to May on such an important concept as judicial independence, looks more and more inappropriate the longer she remains silent on this issue.
The judgement made very clear that the judges are not making a political judgement on whether or not to leave the EU. It merely says that the Royal Prerogative that exists to allow Government to make certain decisions without recourse to Parliament only applies when that decision doesn’t change a British law. Since invoking Article 50 repeals the 1972 European Communities Act, it DOES change a British law. Since the Government has always said Article 50 is irrevocable (and some say they could be wrong on that), the judges were right to say Parliament needs a vote now, not in two years’ time on the final agreement.
The Brexiters, whose campaign in June centered around an apparent wish to have British judges being able to apply British Law in a British Court and to reaffirm Parliamentary sovereignty, seem to have decided that can only happen if Parliament does what they want. They argue, and they are possibly right in this, that some in Parliament will use this vote to delay Brexit or to force the Government to reveal their negotiating hand.
On the first point, I seriously doubt that Parliament will vote against triggering Article 50. Parliament approved a bill for a referendum, the referendum result was to Leave and voting against Article 50 really would be subverting the will of the British people and I would support the massive protests that would take place.
But, Parliament SHOULD have a say in the negotiation process, even if it is just to get the Government to outline their opening position. Yes, doing that will show everyone what we lost in negotiation at the end of the process, but if that opening position is Parliament approved then it really is WE who lost it, not Theresa May’s government.
The central issue is this: Theresa May and her Government do not have a mandate to decide the terms on which we negotiate our exit from the EU. They just happen to be the people sitting around the Cabinet table right now. Our constitution is unwritten and so it is flexible, which is why so many different people have ideas about what Theresa May does have a right to do without Parliament.
But I want to use a point made by GK Chesterton, commonly regarded as a central Conservative political thinker. In his book ‘Orthodoxy’, Chesterton writes the following:
“Tradition means giving a vote to most obscure of all classes, our ancestors. It is the democracy of the dead. Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death”
To apply this to today’s debate about who is responsible for Brexit, our democratic tradition refuses to submit to the arrogant oligarchy of those who merely happen to be in 10 Downing Street right now. Democracy is a partnership between the living, the dead and those yet to be born. Theresa May’s decisions affect our grandchildren and our grandchildren’s grandchildren. She needs Parliament’s help and Parliament needs to have responsibility. That shared responsibility may be inconvenient right now, but in the future we will be thankful for it.
It’s interesting to note your passionate arguments about upholding the principals of our representative democracy and yet having argued for the remain side. Remain would ultimately have lead to handing over our self ruling democracy to an unelected byrocratic “tyranny” (using your vocabulary).
The referendum was clearly asking the binary question “do you want to be in or out of the EU. As far as I’m concerned its now up to the government to act on the people’s will and and not have a second round of voting by the parliament on that same question. Triggering article 50 is just the act of starting the divorce proceedings, as the majority voted for. It does not suggest on what terms or whose interests to priorities etc. It does not refer to our “opening position”, which you are arguing for, but simply the fact that we are leaving the union.
Note, there were no votes by the parliament on many past treaties which bound us ever deeper to the union.
As regards to how involved the parliament should be in defining the terms in the negotiation is another issue. It’s a balance between practicality and the democratic representation you were asking for. At the end of the day there will be a vote on the outcome of the negotiations.
Thanks for your comment Kjell. As the judges and Gina Miller made clear, this is a matter of process, not politics. Invoking Article 50 is not signing a new treaty, which does come under the royal prerogative, it is instead an act that repeals the ECA from 1972 which can only be done by Parliament.
The referendum only gave the government a mandate to leave the EU, not to choose the terms on which to do it. As Article 50 is, according to the Government’s own lawyers, irrevocable, Parliament getting a vote on the final agreement is too late, as it would be under huge pressure by then to accept whatever deal is offered as it will be that deal or, say, WTO terms which could hurt Britain.
So I do think Parliament should be involved in the initial position, because the decision to invoke Article 50 starts a process that will change ALL of our lives. I would not stand for the abuse of this process which tries to reverse the vote ( even though Parliament is actually at liberty to do that), but I think we have to go into this all together.
By the way, I haven’t written this blog yet, but a new general election would be a mistake. It would be a second referendum, and pro-Europe parties could win a lot more seats, and then feel they have a mandate to overturn the result of the referendum.