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The government should resign if the Courts prevent it from invoking Article 50 by itself

November 4th, 2016

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Brexit is too important to be left to the whims of unelected peers

Why should an advisory referendum be binding? That is the question at the heart of the government’s determination to invoke Article 50 without going to parliament. It’s a difficult – but not impossible – case to argue, and one I will argue.

It’s not a political argument. The case there is far simpler. Firstly, there is the risk that the process might be blocked altogether, were the vote to be lost. That’s unlikely in the Commons, where MPs have constituency Associations to placate on the Tory side, and local electorates to consider on the Labour one. The Lords however, where the Conservatives hold fewer than a third of the seats, is another matter. Enough noises have been made to the extent that the referendum was ‘advisory’ (a point the High Court repeated yesterday) that they may feel bold enough to attempt to delay Brexit pending events turning something up.

The second reason why the government would rather not have to go the parliamentary route is that while they might receive assent to leave the EU, their small majority would leave them vulnerable to the motions being ambushed by amendments so as to give them a framework for negotiation far narrower than they’d like, and quite possibly contrary to what they’d like.

But the High Court has said that parliament must have a say. Curiously, it didn’t specify what sort of say is needed, although the logic of their learned lordships’ conclusions point strongly to a full Act of parliament.

It is somewhat presumptuous of someone who has no legal training and whose knowledge of constitutional processes and principles is merely that of an enthusiastic amateur (and, 20 years ago, an undergraduate), to tell the Lord Chief Justice and the Master of the Rolls that they’re wrong. Presumptuous but not necessarily inaccurate. I think they are.

The judgement yesterday is, I think, wrong in the specifics and the fundamental principle in question, though the two are closely related.

On whether the royal prerogative is applicable, the High Court decided that the rights, privileges and duties granted by an Act of Parliament cannot be annulled by the executive exercising the royal prerogative. That of itself is fair enough but as regards Article 50 it fails to recognise that parliament has already been consulted.

It was consulted first when the European Union (Amendment) Act 2008 incorporated the Lisbon Treaty into UK law. Parliament could, had it so chosen, written into the Act that no government could trigger Article 50 (which Lisbon introduced) without a prior vote in parliament. Section 6 of that Act defines nine provisions that do need explicit authorisation from parliament; withdrawal from the EU is not one of them. The assumption therefore must be that the pre-existing powers were maintained. The judgement did in fact address this point but in effect ruled that the passage of the 1972 Act had already abrogated the prerogative with regards to withdrawal (hence, presumably, no explicit authorisation was required in the 2008 Act as it was already required before it).

Parliament was then again consulted when the European Union Referendum Act 2015 was passed. Again, this could have specified the mechanics of the withdrawal process but it did not. In fact, the Act is entirely silent about anything after the referendum is concluded. Here, we enter the wider constitutional question not properly considered by the High Court: to what extent did the referendum of itself confer legitimacy on the government to trigger Article 50?

Perhaps the most striking thing about yesterday’s judgement is how little the referendum features in it. It is written off in a few short paragraphs near the end as ‘advisory’ and hence of no legal standing. Consideration of the triggering of Article 50 is therefore made as if the government were acting in isolation, as if no referendum had taken place.

This stance runs throughout the judgement, where the very first sentence of the sections considering the merits of the case states “the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign”, and goes on to cite various important examples and cases, some going back to the early seventeenth century.

In doing so, I’d argue that it hasn’t taken sufficient account of the change to the constitution that the innovation of referendums have brought about. More specifically, they haven’t sufficiently questioned what the actual nature of sovereignty is or why it lies where they say it does. Does it lie in parliament and only in parliament or does it actually lie with the people, as usually expressed through their representatives in parliament?

The court repeats the mantra that it is the former, and bases that on historic authority and constitutional case law. In practice, however, it is the people who are sovereign. The balance of power between executive, parliament and people was not set eternally in 1689; for one thing, the electoral basis of parliament was continually broadened until it encompassed almost the entire adult population precisely because more restricted franchises were seen as meaning it lacked sufficient legitimacy. Implicitly, parliament is subject to the authority of the people and such power as it has is held on temporary sufferance.

If so, that throws a different constitutional light on referendums. Whether formally binding or not within the terms of the Acts that enabled them, they are the expression of the sovereign people. As such, their results ought not to need any ratification in parliament. MPs and peers clearly accepted the legitimacy of putting the question in the first place and it follows that they were willing to contemplate either outcome.

It is telling that since the early 1970s, there have been over 50 referendums in the UK, either across the whole country or in some nation, region or locality. With but one exception, the decision that the relevant electorate reached was always implemented – and in that one exception (the Scottish 1979 devolution vote), the Yes vote was not translated into action not because parliament countermanded the poll but because the pre-set requirement for an absolute level of support was not reached. The weight of numbers suggests that it is now a constitutional principle that there is no such thing as an advisory referendum; the results of all plebiscites will always be respected, subject only to pre-determined criteria. To the extent that parliament retains an overriding power, this should be seen as equivalent to the royal reserve powers: exercisable only in exceptional circumstances where normal politics has ceased to function.

The Court itself notes that the 1972 Act does not in fact abrogate the royal prerogative with respect to activating withdrawal, it in effect puts it into abeyance pending some legitimate triggering mechanism. The referendum provided that mechanism.

So much for the possible arguments for the appeal. What happens if – probably when – the government loses again, in the Supreme Court?

Theresa May and David Davis could introduce an Article 50 Authorisation Bill. I believe they would be wrong to do so, at least initially. Apart from anything else, it would legitimise the argument that the referendum was of no consequence and that parliament – either House – could amend or vote down the bill as they see fit.

Instead, the constitutional issues at stake are of such import that if the people’s decision cannot be directly carried into action, the government should resign via a forced No Confidence vote, making it clear that it is necessary to seek the ultimate authorisation, from the people themselves. As no other government could be put in place, a general election would be triggered for late January in which the Conservatives should run explicitly to seek a mandate to implement the referendum result.

Such a strategy is not without very significant risks. The Tory Party might be deeply divided. Questions would undoubtedly be asked as to what sort of Brexit each party favoured, and would be hard to answer while keeping all wings together. Other issues would inevitably intrude in the election campaign – after all, it’s not for politicians to determine the agenda in entirety. The public might not like being forced into yet another poll. Jeremy Corbyn might even end up briefly as prime minister. All the same, those are risks that would have to be run if a government is to have the clear mandate necessary to force through a Brexit Bill.

David Herdson