Theresa May, image, FCO.

What we may call constitutional ‘populism’ has thrown the British constitution into a state of confusion. Old certainties about the supremacy of parliament, the role of parties and the independence of the civil service and the courts are being challenged. Alarmingly, the nebulous idea of a remote and ‘illegitimate’ establishment seems now to include our democratic representatives in parliament, as well as the civil service and the courts. Theresa May, who, ironically, is an unelected prime minister who won office through the internal processes of her party, said in a speech last October that those that challenged the legality of the Article 50 notification were ‘subverting democracy’.

It was an extraordinary thing to say. This statement – not an isolated case – was a public endorsement of the populist narrative. Newspapers then followed suit in branding the judges as ‘enemies of the people’ after they found that an Article 50 notification must be decided by parliament, under standard rules about the use of the royal prerogative. Even Vernon Bogdanor, an experienced observer of the British constitution, wrote a few weeks ago that the will of the people, not the will of parliament, is now sovereign (‘After the Referendum the People and not Parliament are Sovereign’ Financial Times, 9 December 2016). Anthony Barnett also argued that Brexit has ‘killed the sovereignty of parliament’ in these pages in December. Barnett, however disagrees strongly with Bogdanor’s conclusion that the change is to be welcomed. Barnet alerts us to the risks of authoritarianism with much needed clarity: “The 'Will of the People' must now prevail. Those who resist are 'Enemies of the People’. This is the raw meat of dictatorship.” In Barnett’s view the required response is the creation of a European style written constitution, which will protect British democracy from authoritarian populism.

Barnett is to my mind right on both issues. The constitution is at risk. The best way to protect it may well be to create a new constitutional document as the embodiment of our constitutional fundamentals. But before we start thinking about a radical remedy, we need to be clear what the risk is. In my view the current populist challenge has not transformed our constitution. But it threatens its stability and coherence.

The British constitution has for years relied on a careful balance between parliament, the political parties, the civil service and the courts. It is a unique arrangement which has been held together by an unwritten set of rules and principles, giving emphasis on constitutional precedent and convention. The populist claim is that on the basis of the referendum It has already changed by removing authority from parliament and returning it ‘directly’ onto the people. Does this novel claim have any basis on the constitution? I believe it does not. The constitution is being challenged by the novel and ultimately authoritarian claims of the extreme Eurosceptics, but nothing that has taken place has changed its fundamental structure.

What was decided in June?

The referendum question was simple. Anyone who reads the ballot paper (pictured on the right) understands that it was about leaving or remaining. This was just a single question concerning continuing membership.

The referendum question asked whether we wished to reject a familiar status quo. The question did not say what we might wish to replace the status quo with. And as we shall see, it could not do that because there are many ways in which the UK can be connected to the EU without being its member. The various possibilities for leaving have been helpfully summarized by the European Committee of the House of Lords in a Report entitled ‘Brexit: The Options for Trade’. The Report lists four separate options, which is a convenient simplification.

The first option is EEA membership, which entails membership of the single market and free movement of persons (also known as the ‘Norway’ deal). The single market is very significant for the British economy because it is an integrated geographical area where formal rules of non-discrimination and mutual recognition entail a virtually friction-free environment for the movement of goods, services and workers. This applies also to financial services, which through the mechanism of passporting rights can be provided throughout the EU from anywhere in the EU. This market access will be lost if the UK leaves the single market.

The second option would be the agreement to remain in the customs union, but not in the single market. It is the agreement currently entered between the EU and Turkey, which is also a candidate country for membership (although the likelihood of joining is currently very low).

The third option would be an ad hoc trade agreement with the EU outside the single market (the ‘Canada deal’). We can only speculate as to what such a bespoke deal would include.

The fourth option is the option of no deal with the EU, and therefore trade on the basis of WTO rules outside the single market (‘hard Brexit’). It is the only option not requiring any negotiations with the remaining EU member states. It is the default position that will come about if the two-year deadline of Article 50 passes without agreement.

These options are very different in content. The first keeps the UK within the single market. The others do not. The four options are also different in how they can come about. The first three depend on negotiations and can only be created if an agreement is struck with the other twenty-seven member states. But the fourth option, hard Brexit, can be a unilateral decision because it does not depend on the consent of anyone else to come about. 

Given the referendum question, voting ‘Leave’ was not a vote for choosing any particular of the four available options. The referendum only rejected a fifth option, namely that of remaining a member under the current arrangements. That the referendum question had to focus on the status quo is understandable. Since nobody knew then – and we still do not know now – what precise deal the negotiations will produce, no other choice was available for us to consider. It was natural to start from the question if the status quo was acceptable and leave the future options indeterminate.

Suddenly: hard Brexit

Nevertheless, the prime minister is now saying that only two of the four options are open to the UK after the referendum. In her speech at the Conservative conference in Birmingham (and in her most recent interview) she said: “But let’s state one thing loud and clear: we are not leaving the European Union only to give up control of immigration all over again. And we are not leaving only to return to the jurisdiction of the European Court of Justice. That’s not going to happen”.

The prime minister’s statements entail that the first option, namely EEA membership, is out of consideration, because it is incompatible with retaining immigration control for EU citizens and with escaping the jurisdiction of the European Court of Justice. But this also means that in all likelihood, the second option is excluded too, since membership of the customs union would normally require some supervisory role for the European Court of Justice. So the government seems to be saying that Brexit means only the third or the fourth option, which means some variation of ‘hard brexit’. But is this legitimate?

It is not. The referendum was not a vote to leave the single market. Nor was it a decision to limit the rights of European Citizens. None of these questions were on the ballot paper. Staying in the single market, staying in the custom union as well as accepting European free movement of persons, are fully compatible policy choices with the ‘Leave’ outcome of the referendum. Indeed, the referendum vote may have been different if we knew that Brexit meant withdrawal from the single market. Some people who did vote for Brexit may have thought that the Norway deal was a good option in the years ahead, or they might have thought that this was something to be decided later. If they had known that Brexit meant ‘hard Brexit’ - with all the associated economic hardship it will bring – they may have opted to vote for ‘Remain’. We simply do not know.

It is important to note here that the referendum vote is the only mandate for Brexit that we have. The 2015 election was won by a party whose leader campaigned for ‘Remain’. Parliament has never voted for Brexit (and it is overwhelmingly in favour of remaining). Hence, although Mrs May is the legitimate leader of the Conservatives now, her decision for hard Brexit cannot derive any legitimacy from the 2015 general election.

Of course, the government must make decisions all the time. But according to the British system, the government is accountable to parliament. But as we have seen the government is saying that this is unnecessary. By resisting the Gina Miller case, the government says it can proceed with hard Brexit (by triggering the two year deadline of Article 50) only on the basis of the referendum result, without even engaging the current parliament by way of a vote on the road ahead. By claiming that a decision for hard Brexit has already been taken and therefore parliament has nothing more to decide the government is seeking to start process for a hard separation with the EU within two years, without any authority whatsoever.

So the government’s is seeking to proceed with ‘hard Brexit’ with no legitimacy at all. Let us recap. There has never been a referendum on hard Brexit. There has never been a general election fought on a manifesto commitment of hard Brexit. There has never been a parliamentary vote on hard Brexit. The only basis is the unchecked decision of the Prime Minister, who now says that she wants Britain to be, once again, ‘fully sovereign’ (even though she herself supported ‘Remain). This is an entirely novel way of taking important political decisions without any representation or any accountability at al. This process has no constitutional legitimacy in the British system of government.

Restoring the constitution

One of the principles of constitutional legitimacy in the UK is that law-making should be subject to democratic procedures of representation and accountability. This principle – established as far as back as the Bill of Rights 1688 - is clearly violated when legislative decisions are made by the Prime Minister alone, without parliamentary debate and vote (or when the Prime Minister claims that the ancient right of the judicial review of her actions supposedly ‘subverts’ democracy). To proceed to hard Brexit on the basis of no deliberation, no debate and no vote is contrary to the British system of government. What the government has resolved to do is unconstitutional.

This populist argument, which distorts the referendum result in order to serve a narrow partisan political agenda (the agenda of apparently isolating the United Kingdom from the rest of Europe), in effect unsettles our constitution by diminishing the role of democratic institutions, the parliament, the civil service and the courts in the name of a false account of the ‘people’.  In all these ways the populist argument seems to me entirely illegitimate. Using the referendum in this way makes our political system less democratic, not more. We need to return to basics. Parliamentary deliberation is indispensable for democracy under any constitution. And this is for the very simple reason that collective choices are never in black and white. Various policy goals often coexist and sometimes conflict with one another. They require tradeoffs and the exercise of judgment. Some interests must give way for other interests. Such decisions have to be made by parliament, where all the various interests of the nation are represented.  Cutting off deliberation is the same things as cutting off representation. 

The referendum decision was indeed a rejection of the status quo. But all it means, is that we now need to decide about what to do next. The vote did not change anything in our constitution. There is no mandate for hard Brexit. There is no mandate to abolish parliament. Isolation from Europe may well be what the people want, but they have not yet told us so. They have not had the opportunity. They may well choose to go for hard Brexit either by way of referendum or by way of a general election or by way of parliamentary vote. But on all these issues about the future relationship between the UK and the rest of Europe there are still many different decisions to be made. The appropriate process for making these decisions is by way of full deliberation and vote in parliament. For example, the Conservative party MPs must consider if a leader who is determined to bring about hard Brexit causing great economic hardship to millions of people (even though she campaigned for ‘Remain’) is the right person to lead their party. They have never had a chance to ask themselves this question, since Mrs May did not campaign for hard Brexit when she contested the party leadership.

If necessary, given that a referendum has already been held, we may have to ask the people again the people the second part of the original question, which will only be possible once the details of a new deal are known. A referendum on hard Brexit must thus be one between two real and present alternatives, namely the option ‘Remain’ (which in principle is still open to the UK) and whatever deal (or absence of deal) the government will come up with once it has decided what its preferred ‘hard Brexit’ should be. The way to proceed after the referendum is by staying within the Constitution.