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Sovereignty and responsibility after Brexit

Triggering Article 50 to leave the European Union would pave the way for a hugely undemocratic series of negotiations. Legislators must intervene, taking responsibility for this murky, constitutionally unprecedented situation.

Charles Turner
21 July 2016
 Richard White/ Flickr. Some rights reserved.

The European Commission. Photo: Richard White/ Flickr. Some rights reserved.Three weeks on from the UK’s EU referendum, and not much is resolved.  The people, having spoken, continue to speak.  Those who voted to remain continue to campaign, harbouring hopes that the government will not trigger article 50, or that if they do, the EU’s collective bargaining position will prove so intransigent that we will be forced to give up, and return to where we once belonged.  Those who voted to leave fear the same thing, and have started posting images on social media showing four women in full burqas with the caption ‘Theresa May’s new cabinet’.  Those who voted to remain fear that the UK is destined for a future of penury and irrelevance, of lost contacts and diminished opportunities for all but the very rich.  Those who voted to leave hope that the UK can leave the moribund EU behind and forge a new path in ‘the Asian 21st century’ while keeping foreigners out.   

This sense that the fight must go on is doubtless a reflection of the closeness of the result, the intuitive sense that ‘brexit means brexit’ is even more hollow than ‘out means out’ when almost half the population – probably more now – wants to remain.  Some have concluded from this that the referendum was a flawed exercise from the start, partly because the referendum act of 2015 left open the question of what parliament was supposed to do with the result. This was partly because, so they say, the intention was less to establish the will of the people than to lance a boil in the conservative party.  

Though used to foggy mornings, President of the EU Commission Jean-Claude Juncker could see the latter point clearly enough.  What he could not have seen is that Cameron’s ploy has worked rather well. His personal failure, compensated for by his Notting Hill town house, has been the conservative party’s gain. His demob-happy performance at his last prime minister’s question time stands in testament to the fact that the vote to leave has given the party a period of stability. For the time being, its eurosceptic and europhobic wings will be flapping in harmony.  For as William Hague rightly put it, ‘there aren’t any other people’ in the conservative party.  Had the vote been to remain, though, anything could have happened, including mass defections to UKIP in anticipation of 2020.  At any rate, the europhobes – in parliament and on the streets of our dilapidated market towns - would have spent the next three years making a lot of trouble. The vote to leave, by contrast, has reduced the remainers in the House of Commons, and not just on the Tory benches, to near silence. Not only do they seem intent on treating the referendum result as the instruction it cannot be; only a handful, led by that well-known custodian of the British constitution, David Lammy, seem to believe that Article 50 - the provision that governs the process by which EU members states can negotiate their exit - cannot be triggered without an act of parliament. 

The vote to leave has given the Conservative party a period of stability. For the time being, its eurosceptic and europhobic wings will be flapping in harmony. 

This attitude of our legislators is far more disturbing and dangerous than the anti-intellectual pandering of the campaign, and as worrying in the long term as the violence and intimidation now being directed at people who may or may not be foreign. We remainers didn’t expect anything better from the British press, and little more from the BBC, and we warned repeatedly about the consequences of xenophobia. Perhaps naively though, we expected our legislators to uphold the sovereignty of parliament and at least treat the closeness of the result as an occasion for reflection, in the House of Commons itself, on the relationship between simple and super majorities, on the mood of the UK as a whole, on the way the vote has split us down the middle and what to do about it. Instead of this, pro-remain MPs in pro-leave constituencies, desperate to keep their seats, look over their shoulders and keep quiet, while pro-remain Tories in pro-remain constituencies give us the cold shoulder.  Rather than do their duty and be guided by the national interest, MPs are putting personal ambition and party unity – or in Labour’s case, party disunity – first. The exceptions are a few mavericks like Ken Clarke (not standing at the next general election), some principled Labour and Lib Dems, and the Scottish Nationalists, for whom England and Wales can go to hell in a handcart as long as their own goals are achieved.

Rather than do their duty and be guided by the national interest, MPs are putting personal ambition and party unity – or in Labour’s case, party disunity – first.

The attitude of lawyers and constitutional historians is rather different; the consensus of considered and carefully argued opinion seems to be that, even if the legality of triggering article 50 by crown prerogative was secure, its legitimacy would be doubtful. A change, very possibly a substantial diminution of the rights of UK citizens, which they currently enjoy by virtue of our membership of the European Union, would be subject not to any act of parliament, but to negotiation and bargaining by members of the executive along with unelected officials. The result of that bargaining would be a brexit deal presented to the British people as a fait accompli: as the Lisbon treaty makes clear, only European parliament and council may ratify it.  

News of the UK’s new cabinet has diverted attention away from the fact that we are in the midst of a constitutional and existential crisis.  It is now time for MPs to shape up, and if they don’t, for the head of state, the monarch herself, to whom they took an oath of loyalty, to make a statement. If MPs don’t reassert the sovereignty of parliament, and if the Queen remains silent, David Davis and his mates may decide that my Polish and German friends will have to leave the UK. That would reduce the number of countries in which they can live and work freely from 28 to 27; meanwhile, because any agreement to restrict free movement will be reciprocal, UK citizens  may have that number reduced from 28 to 1. Brian Barry once said that, "in an ideal world, everyone would be free to stay where they are".  We don’t yet live in that world, and I am not sure that the brexiteers’ plans for splendid isolation, now to be pursued without parliamentary scrutiny, are designed to bring it closer.  

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