“There’ll be rioting in the streets,” I’ve been told over and again, “if the result of the Referendum is ignored.”
But here’s the thing.
There’s no good outcome from this. There are only more and less bad ones.
The promises the Leave camp made to voters – that immigration would (in some sense) stop or that £350m per week would be available to spend on the NHS – have already been jettisoned. But these are only small things. The Leavers had no plan. David Cameron has resigned and no one is running the country. Day by day our economy is bleeding out. When these things eventually come to sound in a huge hit to investment and economic growth and public finances; when Project Fear is revealed to be Actual Reality, and benefit spending is slashed, and hard working voters find they’ve lost their jobs, and there is less public money available to spend on the NHS, and class sizes grow because there is less money to spend on schools… what then?
How will disenfranchised voters then feel about the promises that were made about how their lives would improve? Promises that were not merely broken but were revealed to be exactly the opposite of the truth? What then? Could there then be rioting on the streets?
These are not my fears alone. Speaking before the Referendum – and in lines I quoted repeatedly before its outcome was known – Donald Tusk, President of the European Council, said this:
As a historian I fear Brexit could be the beginning of the destruction of not only the EU but also Western political civilisation in its entirety.
Of course, it is not for me, or anyone else acting alone, to choose where we now go. That is a choice to be made by whatever our democratically elected Government comes to be. Acting consistently with the rule of law. But I write these lines in order to explain that my conscience is clear in acting, so far as I can, to reverse the result of a referendum, and as soon as possible.
One important idea emerged yesterday on the blog of the UK Constitutional Law Association (and I do encourage you to read the important blog post to which this post is indebted). And it is this.
The process of leaving the European Union begins with us formally notifying the European Council of our intention to leave the European Union. But who is it – exactly – that does that notifying? Who gets to press the Big Green Button?
Among the powers held by the Prime Minister are a collection of powers left over as a relic from medieval times when they were exercised by the King or Queen. Constitutional lawyers call them the Royal Prerogative. The Royal Prerogative is used to conclude – and relevantly end – treaties with foreign states.
But there is a funny thing about the EU Treaties that make up the legal framework of the European Union. They are given effect to in the United Kingdom by an Act of Parliament: the European Communities Act 1972. And whoever presses the Big Green Button will, in effect, denude that Act of content. They will render it, by commencing a process that concludes with our withdrawal from the European Union, an empty vessel. A dead parrot. And the idea that the Prime Minister, by her or his action, might be able to destroy an Act of Parliament is one that suggests we are less democracy and more dictatorship. As it was put in The Case of Proclamations of 1610 :
…the King by his proclamation… cannot change any part of the common law, or statute law, or the customs of the realm…
So what does all of this mean?
It means that pushing the Big Green Button might not be something that the Prime Minister can do. It might instead require a new Act of Parliament – a Big Green Button Act. And if we do need a Big Green Button Act, Parliament would need to choose to have it. MPs would need positively to choose to have it. MPs including your MP.
This image taken from here shows the declared positions of our MPs on the 22nd of June.
As you can see a huge majority backed ‘Remaining’. Of course, there is a difference between, first, the outcome that an MP might have preferred before the outcome of the Referendum vote was known and, second, how an MP would choose to vote on a Big Green Button Bill after the Referendum vote was known.
You may think that the outcome of the Referendum should dictate how your MP should vote.But (wrote Edmund Burke, the political theorist) what your MP owes you is:
not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion
And Parliament is a place:
where, not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole.
So how, in practical terms, would your MP vote in a Big Green Button Bill?
MPs inclined before the Referendum result to vote Remain and who live in areas – in particular Scotland and London – which supported Remaining may feel little difficulty in voting against a Big Green Button Bill now. The (relatively small) number of MPs inclined to vote Leave and in areas that support Leaving will feel no difficulty in voting in favour of such a Bill now. But, at least I would say, an MP in a Leave area whose judgment told her or him that Leaving would be bad for the United Kingdom – bad for its economy; bad for the the Union; bad for jobs and the NHS and education; bad for its place in the world; bad as heralding the arrival of racial intolerance; and, yes, bad for the long term future of democracy – should vote against that Bill.
And, whatever the outcome in the House of Commons, to pass, a Big Green Button Bill would also need to be approved by the House of Lords.
And if the Big Green Button Bill did not pass then we could not begin the process that concluded with us leaving the European Union. Absent further action, we would Remain.
In the coming days I will take legal advice from our leading constitutional lawyers. I have already begun that process. If the advice is that pressing the Big Green Button may or does require new legislation, I will then consider what to do. Should we seek a declaration in the High Court, and then (by way of leapfrog appeal) the Supreme Court that a Big Green Button Act is required?Follow @jolyonmaugham