Two candidates left in the Conservative leadership race. The first is a recent convert to a vigorously pro-Brexit position. The second has a more cautious and nuanced position.
80% of the 150,000 odd members of the Conservative Party cast valid votes. It’s close but the first leadership candidate wins with 63,000 votes. She pushes the button straight away. And we Leave.
Now, assume a different world. The second wins. And she takes the view it’s important we think through where we want to be before we enter the one way street to Brexit. In the meantime, the economy deteriorates, there are factory closures and lay-offs, the NHS struggles to cope with the exodus of thousands of foreign doctors and nurses, and public pressure builds for us to Remain. She never pushes the button.
Which of these two worlds – the UK remaining in the EU or leaving it – happens has nothing to do with what the electorate thinks. The electorate never gets to vote on who becomes Leader of the Conservative Party. The decision is made by those who happen to be members of the Conservative Party. And perhaps they’re there, but I can’t find in the Constitution of the Conservative Party a requirement that you be old enough to vote, or resident in the UK, or on the electoral register to become a member of the Conservative Party.
How’s that democracy? Better, surely, that the decision when, and indeed if, to press the button be one for our elected Parliament.
Leave aside, for a second, the legal argument. It’s a narrow point, outlined here, important in its consequences but one for lawyers. There are other arguments, too, that Parliament should decide.
Parliament is supreme. It, as someone may once have said, should have control. And it chose to enact a referendum that doesn’t take us out of the European Union. Could have. Didn’t. Instead it chose a referendum that advises. Advises someone. But who? Our unelected Prime Minister or our elected Parliament? That’s a question with only one sensible answer.
And the critical question of what our relationship with our European partners looks like post-Brexit? What if a deal on free movement were struck behind the scenes before the Article 50 button was pressed. There’s no public mandate for any particular deal; could an unelected PM choose on a personal whim to reject such a deal on the part of the citizens of the United Kingdom? Or does our elected Parliament get to decide whether, in that world, we leave?
Ultimately, the question a Divisional Court and Supreme Court will have to decide – PM or Parliament – rests on a legal argument. And that’s a good thing too. Without the rule of law we have dictatorship.
But the idea there’s something undemocratic about our elected Parliament rather than our unelected Prime Minister deciding whether to push the button? It struggles to raise itself from the swamp of nonsense. And those who argue Parliament has no role are not the friends of democracy. They fear it.Follow @jolyonmaugham