It is true that, unlike (for example) our referendum on the alternative vote, Parliament chose not to make the EU referendum legally binding. This point, along with many similar, is available to be made.
But it is a whine made from sour grapes.
It is available but it fails to address head on the democratic imperative of the Referendum result. The fact that the result was not technically binding does not have as its consequence that it can be ignored.
So where does this leave the court challenge, that seeks as a precondition for triggering Article 50 the passing of an Act of Parliament?
It has been, and will be, said, and often, that the challenge is about thwarting the will of the people. That’s an expedient line to take but it does suffer from this defect: it’s just not true.
Here’s what David Pannick QC, who argued the case, for the lead claimant said:
If we are correct in our legal submissions, and if the government were then to place a bill before Parliament, it would be entirely a matter for Parliament whether to enact legislation and in what terms. Parliament may decide to approve such a bill, authorising notification. Parliament may reject such a bill, or it may approve it with amendments which may impose limits on the powers of the defendant. For example, as to the date of notification; for example, in relation to parliamentary approval of negotiating terms; for example, as to the need for the minister to report back to Parliament at defined times. All of those would be matters for Parliament to consider and decide.
There is (and I think, rightly) little or no enthusiasm in Parliament for rejecting a Bill authorising the triggering of Article 50. But there is for imposing conditions.
The referendum left important questions unanswered – and it denies reality to pretend otherwise. It was silent, to pick up Lord Pannick’s point, on the date of notification. MPs did think to table an amendment (see NC4) that required Parliament to trigger Article 50 by a certain date but that amendment was not adopted. But, more importantly, the referendum left unanswered the fundamental question of what Brexit means.
Some Leavers say it was about immigration. For others it was Taking Back Control. Many say it was about the £350m. Who is to pick between these sometimes competing objectives? And on what basis do they assert the right to do so?
And, when we come to consider the consequences of the vote, we must also have regard to the wishes of those who voted to Remain. The Referendum asked whether we should leave the EU. It did not ask whether those who voted Remain – some 48% – should lose all opportunity to help shape a country that belongs to them too.
These choices, their consequences, are enormous questions. Fundamental to the life of our nation. The referendum result delivers a democratic imperative but it also creates a democratic deficit.
So let me ask this question, and non-rhetorically: how it can be wrong to require that the Government confront that deficit?
And if it is said, as seems to be the Prime Minister’s position, that Parliament cannot know before the event what we will negotiate for, the logical consequence is that the democratic deficit must be filled after the event.
And what filling the deficit after the event looks like is this.
The deal must be put in a meaningful way to Parliament or the country. And what ‘a meaningful way’ means is ‘with a genuine alternative’.
For the mutual convenience of the parties, the Article 50 litigation has been conducted on the footing that a notification under Article 50 is a bullet that, once fired, cannot be recalled to the chamber. Here is what James Eadie QC, who acted for the Government, said:
We say that a notice of a decision cannot be given on a conditional basis… We also say that an Article 50(2) notice is irrevocable, and once given, it will inevitably lead to withdrawal from the EU on a date which is subject to negotiation, but cannot be any later than two years from the point of notice, unless extended unanimously.
The consequence is that the opportunity the Government means to offer to Parliament to ratify the deal is, as even Jacob Rees-Mogg MP recognises, no opportunity at all. Quoted in The Times he said:
It is quite possible parliament will vote down a deal — but that just means we leave the EU without any deal at all, leave the single market and trade on WTO terms.
But there is another way to look at the consequences of triggering Article 50.
Speaking here (at 24.55), Donald Tusk says, unequivocally and contrary to the footing on which the litigation has been conducted, that the Article 50 notification, once given, can unilaterally be reversed. And he added here:
In my opinion, the only real alternative to a “hard Brexit” is “no Brexit”…Of course it is and can only be for the UK to assess the outcome of the negotiations and determine if Brexit is really in their interest.
And he is right.
It is for us to assess the outcome and for us to determine whether it is in our interests. That is the real choice. It can be made by the electorate in the form of a referendum on the outcome or, should Parliament prefer, by Parliament. But it must be made by the UK. It cannot be made by an Executive that holds no democratic mandate to do so.
And here is where the Article 50 case comes in.
If the Claimants succeed then the Government will need to put before Parliament an Article 50 Notification Bill. And Parliament will have the opportunity to impose one or more conditions on the triggering of Article 50. And the one condition it should impose is the one that addresses that deficit.
If not offered by the Government in the Bill, Parliament should table and uphold amendments. Those amendments should require that there is put before the people or Parliament a sharp and focused choice. ‘Here is the deal that we have negotiated. It is what we, your Government, think reflects the will of the people in voting to Leave. It delivers an exit from the EU in a way that balances the hopes and wishes of all the citizens of the United Kingdom. But the choice is yours. Take this or stick with what we have as members of the EU.’
If asked, I will draft those amendments.Follow @jolyonmaugham