Picture this.
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
Waiting for Godot 
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What makes you think that Parliament won’t decide the matter? Either of your hypothetical candidates will know the difference between executive and legislature, amazingly even without your help. There is old legislation to remove or amend, and there will be new legislation to make. There will be parliamentary scruitiny of policy at all scales, both in committees and on the floor of the Houses. Parliament will make reports and government will respond. In all likelihood the “deal” negotiated will be ready for signing in 2019 and if it is good enough or not for signing will be the main topic of the 2020 general election. Then, our parliamentary democracy will unravel the knotty problem. Just like it has done so well so many times before.
Of course, we could use other tools to make big decisions, say like a trade deal with USA. We could ask our elected representatives to ask the Commission very nicely to do something. If the Commission feels like it, it (and only it) can propose legislation. We then hunt around a whole continent to find enough votes to get our position through Council. Then we have to hope a Presidency of another country makes a good compromise with EP. Then we have to hope this big decision is carried out effectively by the Commission. No wonder we are nowhere near a trade deal with USA! How do we get rid of the 5 Presidents (count ’em!) if they fail to get us this deal?
No. I prefer our system for all its faults.
Jolyon,
I’m not qualified to comment on the strict legal arguments, I’m not a constitutional lawyer. I would like, however, to make two slightly more general comments on your post.
As you quite rightly point out, this referendum result only has advisory status. At least, that is the strict legal position. I believe that there are at least a couple of arguments that – at least morally – the result should be considered binding on Parliament and the Government.
You say that Parliament “chose to enact” a referendum that [wasn’t binding] (I’ve paraphrased your precise wording as I assume that is the effect of what you said). Let’s assume for a moment that this was indeed a conscious decision by the MPs who voted for this legislation. Should they not have made it quite clear to the electorate that this was just advisory, effectively little more than a big opinion poll? How many of those people who voted do you think actually read the legislation and understood its implications?
Secondly, in its referendum leaflet, published in advance of the referendum and sent to all households in the UK, the Government stated that:
“It’s your opportunity to decide if the UK remains in the European Union (EU)”
and
“This is your decision. The Government will implement what you decide.”
The first statement clearly states that it is for the electorate to decide whether or not the UK leaves the EU. There is no suggestion that this is simply a means of letting our elected MPs know what we think about the issue. The second statement is, in my opinion, even clearer, this is a decision to be made by the electorate and implemented by Government.
I think it is a little harsh of you to accuse those who consider the election result binding on the Government of fearing democracy. They may be wrong on a strict legal interpretation but I believe they have a very strong moral argument.
Every Prime Minister has been an elected member of the House of Commons since 1902 (with a brief hiatus for Sir Alec Douglas-Home in October-November 1963).
The fact is that we (the general public) do not directly elect the Prime Minister (or indeed the leader of any political party) : we just elect our local MP, and the Prime Minister is drawn from the party that wins the most seats. That is how our system of representative democracy works.
@ P
What makes him think that? David Cameron and Oliver Lewin have both said so. David Cameron said he intended to serve notice but then said it was something the new prime minister should do. Oliver Lewin says that government lawyers have advised that prime minister can give notice to leave and that Parliament’s decision is unnecessary. None of the likely future prime ministers have said they will ask Parliament before giving notice.
Yet once given, notice cannot be withdrawn. The clock starts ticking and doesn’t stop for 2 years (unless the Council of Ministers unanimously agrees to prolong the 2 years) and at this point, we are out – whether or not any exit agreement has been reached and whether or not any new form of relationship with the EU has been sorted out.
So if a prime minister were to serve article 50 notice, without any parliamentary approval, then that prime minister would have determined the question. He or she would have committed us to leaving the EU. The decision could not be undone, whether by Parliament or the will of the people.
“The second statement is, in my opinion, even clearer, this is a decision to be made by the electorate and implemented by Government”
The problem with this argument is that it remains far from clear what the decision was, because it remains far from clear what ‘leaving the EU’ means. The vote to leave was a coalition of at least two distinct groups with mutually incompatible objectives.
For a satisfactory democratic outcome we need to find a model that both satisfies those who voted to reduce immigration from the EU and is considered better than the status quo by those who voted believing that we can and should remain part of the single market.
It seems to me that a rerun of the referendum based on a set-up that did not meet this dual test might return a very different result. And I think that a set-up that does meet the test is impossible.
If we push ahead regardless we run a high risk of leaving on terms that do not have the support of a majority of the population, which is a funny sort of democracy.
James,
I’m not sure I can agree that “it remains far from clear what ‘leaving the EU’ means.” Certainly not in the context (as I read it) of Jolyon’s blog post.
The referendum was binary – remain in the EU or leave the EU. Like it or not (I voted to remain), the result was a majority in favour of leaving the EU. leaving aside for the moment any question of what direction we take *after* leaving (which is not in any way to diminish the importance of that question), the issue is, I believe, whether the PM can invoke Article 50 without any further input from Parliament.
The lot of you are talking hypothetical rubbish. The result was LEAVE and the government/prime minister have a clear and unambiguous directive from the electorate to get us out of the EU as quickly as possible. If anyone actively tries to pervert this course there will be riots the like of which you cannot imagine.
Who will riot, Paul? Will you?
David,
The issue Jolyon addresses is whether an attempt to ensure that invoking Article 50 is subject to a decision of Parliament is undemocratic. My point is that to invoke Article 50 without any clear idea of what the end result is equally undemocratic, if not more so. Scrutiny of whatever deal we might end up with by Parliament, with the possibility of a second referendum if necessary, would in my view be a positive development from a democratic point of view.
The issue of whether the PM *can* invoke Article 50 is a separate, legal one. To me the challengers’ case looks weak, but I am not a lawyer. I sincerely hope I’m wrong.
@David O’Keefe
The question “shall we leave the EU or stay?” cannot sensibly be answered without asking first “what shall we do instead?”. They are not separate questions.
Do you give notice to leave your job before you have a signed contract with a new employer? Not if it meant you might be left with no job. Do you complete on the purchase of a new house before completing on the sale of your old house? Not if you risk paying interest on a bridging loan.
Yet the consequences for the country, for the lives of 60 million people, of giving article 50 notice without sorting out what we do instead, are unimaginable.
No competent government would put the country in that sort of position. No rational government would serve article 50 notice before we have some alternative arrangements lined up.
The first question can only rationally be looked at in the context of the second.
Great piece, Jolyon.
I suspect you may have seen the article below, but all go to the heart of the unvarnished lies told by Leave/Brexit during the campaign about where our parliamentary sovereignty lies and, indeed, its necessarily changing nature over the decades.
The first is by the FT’s Phillip Stephens:
http://www.ft.com/cms/s/2/26b6a12c-daf2-11e5-a72f-1e7744c66818.html?siteedition=uk#axzz4DePRbpC7
And this from The Economist:
http://www.economist.com/blogs/bagehot/2016/02/bojo-breaks-ranks
And, for the legally minded amongst you, here’s a legal take:
http://www.legalbusiness.co.uk/index.php/lb-blog-view/5673-guest-post-how-boris-johnson-is-wrong-about-parliamentary-sovereignty
@Paul “the government/prime minister have a clear and unambiguous directive from the electorate to get us out of the EU as quickly as possible”
The ballot paper I had didn’t say anything about timing.
These arguments look clever on paper, but don’t work in the real world. It would have been tidier if there was a distrustful junior coalition party forcing orders in council and repeal of the 1972 statute, like with the AV referendum, but there wasn’t. So the EU referendum was silent, rather than advisory. But the binary referendum result was decisive, if not overwhelming.
Now we need to move forward, from part of the EU project bloc to an offshore centre. What are the issues? Transition economic uncertainty? Particularly investment? Potential loss of banking passport rights (doesn’t seem to matter to insurers, where they don’t rely on passporting such is the EU focus on the other 3 freedoms of greater importance to continental economies)? Inward investment manufacturing in the UK as gateway to EU?
Thankfully, the proportion of our trade with the EU has been declining since the 1990s and the silliness of monetary union without fiscal union will accelerate that process. Future consumer demand for UK imports is in Asia, not in Southern Europe.
Reblogged this on ukstays.
“Now we need to move forward, from part of the EU project bloc to an offshore centre”
This comment encapsulates perfectly the profound democratic problem we face. If the question on the ballot had been ‘should the UK become a European Singapore’, what do you think the result would have been?
A good referendum question would have been “do you want the UK to be a wholly sovereign Nation State, or a shared sovereignty Member State?”
The official literature of such a referendum would the list of areas of government to be pooled. The list should include the current shared competencies, and also those that are to come according to EU policy.
In fact, what a good question for each member state citizen. And for the accession candidate states.
Who would vote to have a small minority say in trade, economic, monetary, fiscal, environmental, energy, social, diplomatic,defence, and administration government policy. To have just one seat in the Cabinet Government of this federation.
Not me. And at least 52% of the U.K. population is my guess.
But surely the PM is accountable to Parliament, who can pass a motion of no confidence in the PM, or the old fashion motion to reduce his/her salary, or just pass a motion on the timing of Brexit, or even an opposition party debate day. No PM will act in a matter such as this without knowing that he/she has a majority in Parliament behind him/her. So either the PM will not do anything unless he/she has the support of Parliament or any Remainder MP could use Parliamentary procedures to tie the PM’s hand.
It does not need the intervention of the courts but only an understanding of real politics. The threat of court proceedings is only an attempt to stop Brexit by Remainders who lost the debate. It will lead to uncertainty, more delay and even more damage to the economy etc. And if the courts stop Brexit, it will lead to questions about their legitimacy and accountability, which largely go unquestioned at the moment.
The fact is that Parliament is supreme and does not need the courts to tell it. Rather if the courts intervene, it will be a further chipping away of Parliamentary sovereignty.
And just for the record, I would be quite happy for Parliament to say no to Bexit, because at least those MPs with the strength to do that, will be accountable to their electorate at a subsequent election.
@Dan Haynes
But if a prime minister did give article 50 notice without checking with Parliament first, it may then be too late to stop the 2-year clock from running. A very foolish and incompetent prime minister – the sort who might mislead about their experience in financial services, perhaps – might well do this. They might do it before anyone had worked out what we are going to do instead of being in the EU. Which would put the country in such a weak position as to remove all possibility of negotiating a better relationship with the EU than the one we have now. Bear in mind that many people voted Leave on the strength of promises to obtain such a better deal.
I am not sure how the courts of England and Wales, the courts of Scotland or the courts of Northern Ireland could “stop Brexit”. Perhaps you mean, if they could stop a prime minister from giving article 50 notice without involving Parliament. If that happened, so what? Nothing would have been lost. Parliament would be free to make the decision. To exercise its sovereignty. In accordance with the rule of law.
The courts derive their legitimacy and accountability from our constitution. The constitution can be changed in accordance with the rule of law. Question it all you like, but if you want to see it changed, do it lawfully.
But we haven’t got a maverick (foolish and incompetent) Prime Minister and are not likely to get one. It’s hypothetical. It’s not going to happen. In the same way that a maverick Prime Minister is not going to start a nuclear war.
But you are right that if the article 50 notice is given in these circumstances, it would be worrying, that we would seem to be on a process of leave and have a weak negotiating strategy. But I do not see how legal action will improve this. What are the courts going to decide should be done first exactly – repeal the 72 Act, have a debate in Parliament, both Houses or just the Commons, the options are many. Negotiate before article 50 implementations; fine if the EU will negotiate bit they are playing hard cop soft cop at the moment too. All it is going to do is add to uncertainty and the impression of headless chickens.
But if at some stage in the future the courts were to quash the notice “because it has not been done in accordance with the constitutional requirements”, it no longer exists and so in effect the EU will have to have recognised that it had never been given. Interesting to see how the ECJ would treat that. So it might be better to delay any action. If the courts were to lay down a process, that will actually help the government and the Brexiters getting it right, (I know I may be contradicting myself).
I agree the courts will not stop Bexit but the impression I get from public comments is that the aim of some potential litigators is to stop Brexit rather than an interest in upholding the rule of law. And litigation is seen as a means of achieving that aim. The hope will be to stop Brexit by making it impossible for Government to implement article 50; not through a legal prohibition but just through it becoming too much effort or the time has passed.
Accountability of the judiciary is something that worries me quite a lot. Maybe only me. It is not an answer to say that they are accountable to a constitution or a concept. It is about appointment processes, training, the links with the other parts of the government, public involvement, discipline, appeals. Currently the judiciary is respected and there is little appetite for election, appointment by the executive and confirmation hearings by Parliament. But if the courts have such influence as to impede something as political as Brexit, then overtime these issues will come more to the fore. Personally I do not think it undesirable but I do not think I would have much support for that point of view and there are serious risks going down that line too. Better not to go there and create a real constitutional crisis.
I was was just wondering Jolyon what distinction you would draw between ‘unconstitutional’ and ‘undemocratic’.
The point of the legal action is to enable Parliament to make the decision to leave and the decision to serve notice under article 50. We are still bound by treaty obligations and it makes no sense to repudiate those by repealing the ’72 act prematurely. The fact that the Council of Ministers is not obliged by article 50 to conduct any informal negotiations is a good reason for Parliament to think carefully before giving notice.
You say you don’t want judges to decide questions of constitutional law because there are serious risks of them doing so and it might cause a real constitutional crisis. If you are right, that judges must no longer be allowed to decide questions of constitutional law, then surely there is already a real constitutional crisis.
Jolyon, your legal action is useful.
Legal action can hope to delay the process of EU withdrawal. Delay may be useful because it can mean a general election will need to be held before anything of substance is done.
Parliament should be in no rush since the result of the referendum was illegitimate. Firstly it was very close – which should be taken into account by Parliamentarians. Secondly many people were voting as a protest vote rather than on the issue at hand. Finally, the question was unclear – many people who voted leave want to stay part of the single market, but others want an end to free movement – which are currently mutually incompatible.
It is unclear to me whether a general election or another referendum are required to change course. What is clear is that those who believe this was a wrong decision should keep on making the case.