This week’s High Court ruling on whether the Government or Parliament has the authority to trigger Article 50, is not, and must not be interpreted or used as a subversion of the democratic will. On June 23rd as a country we voted to leave the European Union, and so we shall leave. As such ‘we are all leavers now’.
Yet MPs such as Kwarsi Kwarteng and Dominic Raab travelled the TV circuit Thursday warning of an affront to democracy, while sections of the Press cried ‘betrayal’ labelling Judges “enemies of the people” no less. If the ruling was evidence of a concerted effort by “Bremoaners” to prevent us leaving the EU, this would be legitimate, but it doesn’t stand the test of scrutiny.
Rather this ruling is quite clearly to do with the proper rule of law and the process of parliamentary democracy, organically constitutionalised over centuries to ensure scrutiny, justice and a degree of consensus in governance.
The Lord Chief Justice, Lord Thomas, stated that the Prime Minister clearly does not have the authority to use the frankly archaic Royal prerogative to overturn legislation of Parliament, as it would be “contrary to the fundamental principles of the sovereignty of Parliament”. This isn’t a Remain backdoor job; it’s a constitutional assertion of the correct separation of powers, for use of the prerogative in such a momentous decision would set a dangerous precedent. While the government can assert that the referendum gave a mandate to leave the EU, in no way can they claim a clear mandate on what that means.
Therefore it is a requirement for Parliament as a whole to debate and decide on what Brexit shall come to be, considered in regards to the national interest and desires of both the 52 and 48%. The Leave vs. Remain camps are then a false dichotomy, and an unhelpful division of society. The real debate is on what type of Brexit we want as a nation, and how we go about it. This transcends the referendum campaign lines, as pro-leave MP Stephen Phillips’ resignation due to the Government’s apparent intent on negotiating “without regard to the House of Commons”, shows.
The High Court has ruled “a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question… No such language is used in the 2015 Referendum Act”. This isn’t to say that Parliament will vote to prevent Brexit (all indicators suggest that the majority of pro-remain MPs realise and support the publics will to leave), rather it is to say Parliament’s 650 MPs should have the say as to what Brexit looks like, rather than the PM and 21 Cabinet Ministers behind closed doors. That is democratic, considering the referendum vote said nothing in regards to what type of Brexit was preferred by voters.
I understand the logic behind the argument that the government shouldn’t reveal its negotiating position. But for such a momentous decision, constitutionally, scrutiny and involvement of parliament is required. For such an important process transparency and consensus surely trumps risking negotiation positions – besides – Parliament should and would have a say on initial negotiation positions/proposals without interference with the actual process.
Debate in Parliament is the ultimate mode in which we hold ideas of the executive to account in order to find as close to consensus and national interest as possible in governance of our nation. Its one of the great British contributions to this world. This is how we come to decisions in a representative democracy.
As the great conservative philosopher and MP Edmund Burke wrote in Letters to the Electors of Bristol, his role as an MP was to do everything he could for his constituents, but his duty to them was to vote on his conscience, for what he believed to be in the best interests of the nation. In this way the referendum vote to leave the European Union must and will be respected, but just how this is done must be transparently debated in the national interest, first.