The Supremes say “Stop in the name of Parliament”

Brendan Donnelly


By Brendan Donnelly, Director, The Federal Trust



On general principles of good governance yesterday’s decision of the Supreme Court must be welcomed. Most Parliamentarians are profoundly uneasy at the erratic course Mrs. May and her government have steered over the past six months in response to the ill-defined outcome of the advisory European referendum on 23rd June. It was politically convenient for Mrs. May to claim to believe that a modern version of the divine right of kings dispensed her from the obligation to involve Parliament in these matters.  Happily, the Supreme Court has rejected such pretensions. Nevertheless, any pleasure at yesterday’s verdict must be tinged with disappointment that the Court needed to take such a decision in the first place.

During the referendum campaign this summer, much was made by those wishing to leave the European Union of their supposed desire to “take back control” from the despotism of Brussels.  The elected British Parliament, and the British Parliament alone, it was claimed, should be the source of law and government in the United Kingdom. Once this rhetoric had served its purpose of winning the referendum vote on 23rd June, it gave way to a very different reality, that of self-aggrandisement by the executive.   Even if the Supreme Court had concluded that the UK’s largely unwritten constitution did allow the government to trigger Article 50 without Parliamentary sanction, it would still have been an unseemly and provocative act by the government to attempt to do so. Such a sidelining of Parliament would rightly have called to mind often-repeated warnings against referendums as instruments of dictatorship, whereby the dictator rides roughshod over representative institutions, claiming to represent in his own person the “popular will.” More prosaically, it would also have been an implicit recognition that many of the arguments deployed by the “Leave” campaign last summer were so shaky that they could not bear sustained Parliamentary scrutiny.

Ironically, it now appears that Mrs. May’s government had little to fear from asking for Parliamentary endorsement of her government’s desire to trigger Article 50 of the Lisbon Treaty. Although the bulk of the Labour Party vigorously campaigned to remain within the European Union last year, their leadership was notably tepid in its commitment to this cause, a tepidity that may well have been numerically decisive for the referendum’s outcome. Mr. Corbyn has said he will instruct his MPs not to obstruct the passage of the bill to invoke Article 50. Many Labour MPs originally favourable to remaining in the European Union will follow this injunction because they fear that their seats may be vulnerable to UKIP at the next General Election. On the Conservative side, Kenneth Clarke is the only MP likely to vote against Article 50, a situation that well summarizes his present commitment to principle and his failure in the long term to be more than an occasionally protesting spectator in his party’s rush towards radical Euroscepticism. The chances of constructing a majority in the House of Commons against the invocation of Article 50 are therefore small. The only large party in the House of Commons likely to vote against the government on this issue is the Scottish National Party. The SNP’s political prospects in Scotland have recently been greatly enhanced by Mrs. May’s rejection of the European single market and the finding of the Supreme Court that the devolved assemblies had no legal entitlement to participation in the triggering of Article 50. The many English nationalists in the Conservative Party will not be sorry to observe this further political fissuring of the United Kingdom.

Leading Parliamentary  figures formerly on the “Remain” side of the argument now seek to hedge around their approval for the invocation of Article 50  with conditions, calling  for a White Paper on the government’s negotiation strategy, for continuing Parliamentary scrutiny of the negotiations once Article 50 has been triggered, for Parliamentary votes on the terms of Brexit. Some at least of this will be displacement activity by MPs, in an attempt to conceal (perhaps from  themselves) that they have no stomach for further fight on the European issue.  Only the Liberal Democrats of the traditional national parties are currently committed to a policy, that of a second referendum on the Brexit terms, which has a real chance of preventing the United Kingdom’s exit from the European Union. But there will certainly be some individual MPs genuinely looking to the longer term, laying down in the coming months the basis for future opposition to Brexit when the government returns with its negotiated terms for leaving the European Union. If by that stage in 2018 or 2019 the negative economic consequences of leaving the Union are more apparent to the average voter, it may be politically easier to question the principle of Brexit than it is now, particularly if it can be argued that the government has failed to achieve its negotiating objectives. An important potential difficulty lies in the path of these Fabian tactics, a difficulty which need not be insuperable but which arises from the terms of Article 50 itself.

According to Article 50, two years after the notification by the seceding government that it wishes to leave the European Union, the European Treaties automatically cease to apply to that country, whether a formal exit agreement has been negotiated or not.  It can plausibly be argued that this provision deprives of any real significance the vote on the Brexit terms that Mrs. May has promised MPs. On this line of reasoning, MPs will be presented in  2018 or early 2019 with a choice only between leaving the European Union with an unsatisfactory exit agreement or leaving with no agreement at all. The Brexit Minister was eager to stress to the House of Commons yesterday that the decision to leave the European Union has already been made and that only the modalities of this leaving are now at issue. Mrs. May and her government would probably not anyway have been willing to permit  a Parliamentary vote on their Brexit terms had they thought such a vote would make any difference to their desired outcome.

It is certainly possible that when MPs vote this year to trigger Article 50 it will seem too early to oppose the general principle of Brexit and when they vote on its terms in 2018 or 2019 it will be too late. An alternative future of equal plausibility can however be constructed. A government which had its Brexit terms rejected would be weakened to such an extent that it would find it difficult to avoid resignation. If a Parliamentary majority had indeed been constructed against the Conservative terms for Brexit there is no reason why that new majority should not form another government to replace that of Mrs. May or (possibly) her successor. A number of new options would then be available to this government, such as holding a second referendum, asking for an initial extension of the deadline of two years stipulated in Article 50, or withdrawing altogether the Article 50 notification. There is little doubt that our European partners would wish to help the new government if they saw a real possibility of avoiding what they regard as the irritating distraction of British withdrawal from the European Union.

In January 2017, the prospect of constructing a new Parliamentary majority to mount radical opposition against the negotiated Brexit terms may appear speculative at best. But there is already much instability and uncertainty within the current party structures of British politics. It is certainly not beyond the bounds of possibility that the reconfiguration of British politics that many now regard as inevitable will be crystallized by the European issue.  Within the current structure of British party politics, Brexit is probably unavoidable. There is however nothing immutable about this structure.  Brexit has at least the potential to be a catalyst for creative destruction of our traditional party landscape.