MPs voting to trigger Article 50 tonight. ParliamentTV, fair use.
If you believe the most passionate Remainers, tonight’s vote in the House of Commons will be a disaster for the British economy. And it may well. If you believe John Nicolson, the SNP MP for East Dunbartonshire, then tonight will in future be seen as the coup de grâce which finished off the UK. And it may well. If you believe many of those who follow Labour’s internal politics, the decision to back the government on Article 50 will spell the beginning of the end for Jeremy Corbyn. And it may well.
But what we know for sure is that this vote did the opposite of what many of its most ardent proponents wanted. Westminster voted against its own sovereignty.
Most MPs believe that triggering Article 50 and leaving the EU will be bad for the country. Most voted Remain in the referendum last year. And yet tonight, most have voted for a Bill which amounts to the most extreme form of Brexit, because, they argue, the people voted differently from them in a referendum.
Whether you think this is the right decision or not, the logic employed by MP after MP in the debate over the last two days is worth looking at closely. Members from each of the two biggest parties gave remarkably similar justifications for their choice: they had voted Remain, but they must accept the outcome of the referendum.
These MPs argued, in other words, that they must subordinate their belief on this vital matter to that of the majority of the people; that there is a greater power than their own. If you feel a pain in your neck, then it may be a case of constitutional whiplash.
After all, just last week, the government’s position was that this profound decision was one which they could take through Royal Prerogative. In other words, sovereignty over a serious matter of constitutional change lay with the prime minister, acting on behalf of the monarch. Though, of course, if we trace the history of such notions to their roots, they are predicated on the divine right of kings. And so, in a sense, the government’s argument was that their authority stemmed ultimately from God.
Then the Supreme Court, by a vote of 8 to 3, struck down the notion that the government could make such a decision, and repeated the most important constitutional principle the UK has: that parliament is sovereign. If this strikes you as odd, you’d be right, it is. The UK has only had a Supreme Court since 2009. Before that it had ‘Law Lords’ who themselves sat in parliament. If parliament really is sovereign, why didn’t it have the gumption to instruct the government to bring the matter of triggering Article 50 before it? If the Supreme Court has to say so, doesn’t that make it in some way, well, sovereign and so undermine parliament? (This, by the way, is a crude summary of the views of the dissenting three.)
The question is redundant. What parliament declared tonight, in the form of huge numbers of MPs’ speeches, and the vote of those MPs who chose to trigger Article 50 despite not wanting Britain to leave the EU, is to respond to the Supreme Court with a rather surprising “not us, guv”.
For as we pointed out here on openDemocracy some time back, it was one thing for parliament to approve a referendum in the belief it will confirm what MPs already think best. But a referendum which must be respected even if it upturns the views of MPs kills off parliamentary sovereignty. It is the people of Britain who are sovereign now.
For a democrat, this is a good thing in many ways. It ought to be the people of this country who have the ultimate power to decide on the most important matters. But, here’s the problem. What we can now refer to as the old constitution had rules and procedures and, at least on good days, checks and balances. Also, the processes of a quasi-democratic ‘elected dictatorship’ were legitimated by a parliament where the ‘main’ parties came from across the three nations of mainland Britain. Now not only has the referendum blown away its historic, Burkean legitimacy, but the SNP, by seizing all but three of Scotland’s 59 seats, has driven a stake into its union pretensions.
If we are to accept the new reality – that the people have spoken and must be heard; that it is us, the citizens of this country, who are the ultimate arbiters, then that means we too need rules and procedures. We need to figure out how we are to organise our new-found power. We need, in other words, a democratic constitution. Because without codification, the abstract idea of popular sovereignty is a path to tyranny. The people must be in charge, but that means we must organize ourselves to ensure minorities are respected, that there are proceedures for us to change our minds, and that the information put before us is honest.
The vote to trigger Article 50 started the formal process of Brexit and may have set a line of constitutional dominoes toppling. One of those is that Westminster voted tonight to accept that it is the people of Britain who are the final arbiters. And it’s vital that we figure out what that means.
And this has got more urgent. For, in another constitutional twist, Donald Trump is unravelling the kind of United States government that post-war Britain relied upon. In one sense, the UK’s throwback of a constitution survived after 1945 only because it flew under the protective wings of the American democratic eagle.
This so-called special relationship was never one of equals. It was one of great convenience to the USA but an existential necessity for the UK. Domestically, generations of post-war British politicians, journalists and broadcasters, especially from the centre left, trained in America and felt that its norms were theirs. In a way, its liberal, constitutional legitimacy provided the excuse and cover for Britain’s quirky absence thereof. The wobble of Nixon was triumphantly overcome by his impeachment.
Trump is something else. He is openly contemptuous of both America’s much-admired constitution, and of the EU. Even in an unusually short press conference with Theresa May, he denounced it as a "consortium”, implying that he wants to see it broken up – in front of the British prime minister. Inward looking and destructive when not outwardly bigoted and provocative, with every blow Trump delivers to American democracy something dies in another British heart, one that failed to create a system to believe in back in Blighty.
Trump makes Brexit profoundly ill-timed, whatever else you might think of it. At the very point when the UK needs to share and support Europe's sovereignty for the sake of democracy and openness everywhere, a broken House of Commons sells the pass, divides our continent and blames the people.
Fine, let’s take the blame and take over properly. A mighty rolling-up of sleeves is called for.
PS: Chris Hanretty, from East Anglia, has a very useful breakdown of the voting. He calculates that 328 MPs who had declated for Remain voted for the Brexit bill.
Barnett is writing THE LURE OF GREATNESS: England's Brexit and Trump’s
America, which can be ordered here.