‘Twas the voice of the Wanderer, I heard her exclaim,
You have weaned me too soon, you must nurse me again
– Stevie Smith
I’ve been following the developing saga of Article 50 through a variety of sources – notably the UK Constitutional Law Association blog, Mark Elliott’s Public Law for Everyone, and the invaluable commentary on Twitter from Schona Jolly, Jo Maugham, Rupert Myers and others. (Exeter! Who’d have thought it?) For what it’s worth I’m inclined to think that Mark Elliott and Hayley Hooper‘s reading of the constitutional position is correct – that the UK’s EU membership is ultimately a matter of treaties concluded between governments, and that any individual rights arising from it were available to be applied from the moment membership was agreed, but were not (and could not be) applied until they had been brought into domestic law by Parliament. This being the case, if membership were to cease, the applicability of those rights would remain in law until such point as the European Communities Act was repealed, but it could have no effect, as the rights would no longer be available. To put it another way, any invocation of a right – or any other legal provision – which exists as a function of Britain’s membership of the EU must implicitly be conditional on EU membership subsisting at the time the invocation is made; to say otherwise would be to say that all EU-based legislation must be repealed before Britain could leave the EU, a proposition which (as far as I’m aware) nobody has advanced. This being the case, it must be possible for EU membership to cease and for EU-derived rights subsequently to be invoked (unsuccessfully, of course).
If the existence of EU-derived rights is no bar to leaving the EU by executive decision, neither is the principle of parliamentary democracy. It is true that the peculiar mechanism of Article 50 – with its inexorable two-year time limit – carries the risk of truncating Britain’s EU membership without any kind of Parliamentary agreement or even consultation, but this is only an idiosyncratic example of a much broader principle: it is governments, not Parliaments, that make treaties and dissolve treaties. Nor does the executive require Parliamentary approval for the making of treaties (as distinct from the enactment of those treaties’ effects into domestic law). Not only could the government have triggered Article 50 the morning after the referendum, as David Cameron originally suggested that his government would; in purely legal terms, Article 50 could have been triggered at any time, including before or even during the referendum campaign. This would certainly have been politically unwise, but it would have been within the competence of the executive; the “constitutional requirements” referred to in the text of Article 50 are undefined, and it would be decidedly courageous to argue that the British constitution requires respect for a specific referendum result. In this perspective, it could even be argued that the current appeal rests on a category error: the EU-derived rights which are at issue are not being disapplied in British law but extinguished at source, and there is – as a matter of constitutional principle – very little that Parliament can properly say about it. As a firm – not to say terrified – opponent of Brexit I don’t take any pleasure in this; nevertheless, it seems to me that this is where the law leads us. The current appeal, for me, is an eminently political case – and one which I strongly support on political grounds – but argued on legal grounds which are dismayingly weak. But we shall have to see what the SC makes of it. (I suspect that the interventions of the Scottish and NI governments may end up being a stronger part of the appellants’ case than their original argument.)
For now, here’s an argument that occurred to me recently, and which I don’t think I’ve seen anywhere else (although I admit I’m not quite up to date with the UKCLA blog); it suggests that, despite the constitutional argument advanced above, the primacy of Parliament may still have a role to play.
Consider the Alternative Vote referendum of 2011. (For anyone in need of a spare rabbit hole, my thoughts on AV are here, and some thoughts on why the referendum was lost are here and here. Note appearance of Matthew Elliott and Daniel Hannan.) It’s commonly acknowledged that the AV referendum, if passed, would have been legally binding in a way that the EU referendum wasn’t; while the European Union Referendum Act 2015 simply enabled the public to express a preference (which we were informally assured the government would subsequently implement), the Parliamentary Voting System and Constituencies Act 2011 actually legislated to introduce AV, with a conditional clause providing that, when the result of the referendum was known, the relevant provisions should either be brought into force or repealed by ministerial order. If the referendum had passed, AV would have been introduced by the executive, without any further parliamentary scrutiny: Parliament had voted (albeit with substantial opposition) for a referendum result to have the power to force the executive’s hand in this specific way.
But there is nothing in the 2011 Act which mandates that the ministerial order should be made immediately, or in any specific time frame; it would have been possible for the government to drag its feet, even to the point where it was (regrettably) no longer possible to introduce AV in time for the next general election. More to the point, nothing in the 2011 Act precluded a future repeal. Even if we assume that the referendum result would have bound the government of the day to implement AV – and to refrain from taking steps to repeal it – the result would have placed no such obligation on individual MPs; it would have been entirely possible for an MP (of any party) to introduce an Alternative Vote (Repeal) Bill, which could then go through the Commons on a simple majority vote. (Anyone who doesn’t think that electoral reforms can be made and then reversed hasn’t been paying attention to Italian politics.) The point here is the obverse of the principle with which I started. Governments make treaties, but Acts of Parliament are made by Parliament – and what Parliament makes, Parliament can unmake.
The constitutional significance of the use of a referendum, in this perspective, is very limited. The 2011 Act specified that a referendum should be held and that its result should determine whether the Act’s AV provisions were brought into force or repealed. The AV referendum itself was thus an event within a process fully specified, and circumscribed, by an Act of Parliament – an Act like any other, available to be amended or repealed by subsequent Acts. Certainly the referendum result was binding on the government, but it was binding in a very specific way, set out in detail within a Bill which was the subject of parliamentary debate and scrutiny. The referendum provisions did not determine the detailed wording of the Act, still less permit the executive to disregard it; they simply modified the procedure for implementing the Act to incorporate two alternative paths and an external ‘trigger’ event to determine the choice between them.
So there is nothing about the use of a referendum which changes the rules of the game, when it comes to legislation made in Parliament. Normally, a Bill is put before Parliament, debated and voted on, and – if not voted down – becomes an Act of Parliament and brings about changes to the law. All of this, including contested votes in Parliament, was true of the 2011 Act; the only difference was that when that Act changed the law, it did so subject to a choice between two possible changes (both specified in detail), that choice being determined by the result of a referendum. There was nothing in the whole process to challenge the primacy of Parliament: the British people chose, but they chose from two alternatives both of which had been minutely specified in advance, and both of which had gained the approval of Parliament.
But this is not the situation we’re currently facing. What about the situation where a referendum result is addressed, in effect, not to Parliament but to the executive – and where what is at issue is not domestic law but an international treaty? Before exploring this scenario, it’s worth recalling that the British system of democratic representation is parliamentary all the way down. When we talk of ‘the government’ taking action, we’re generally talking about action being taken by or on behalf of the Prime Minister – which is to say, the member of parliament who last formed a government, on the basis that she or he was best able to command a majority in the House of Commons. In countries with an elected Head of State, Presidents may have their own legitimacy and exert power in their own right, even to the point of being involved in government formation. It’s impossible to imagine Britain having a ‘non-party’ government – as Italy has done more than once – let alone such a government drawing substantial legitimacy from having been approved by the Queen. Government ministers – even the Prime Minister – are MPs like any other, and they can be held to account by their fellow MPs in Parliament. The executive is whatever remains when the domestic politics are stripped out: the Prime Minister and other key ministers acting on behalf of the country, plus the civil service supporting them. But ‘acting’ is the operative word: no Prime Minister ever ceases to be an MP and a member of a party, and the call of partisan politics can never be entirely silenced. (Winston Churchill, perhaps more than any other Prime Minister, encapsulates our contemporary idea of a Prime Minister acting on behalf of the country as a whole – but it was he who said, less than a month after VE Day, that a Labour government would inevitably bring in “some form of Gestapo”.)
It follows that, while referendums can make demands of the executive, they can only legitimately make a certain kind of demand – which is to say, demands with no possible ambiguity; demands specified to such a degree that nothing is required of ‘the government’ but to turn up and sign on the dotted line. As a rule of thumb, if the action being demanded could be carried out by a senior civil servant, then a demand is being made on the executive. It’s also worth remembering where these demands will have come from. In some countries – Italy again springs to mind – referendums have an independent democratic function and can be initiated at the grassroots level; once a certain level of support is reached, the referendum goes ahead with binding effect. (It makes the Number 10 ‘petitions’ site look a bit feeble.) In Britain, referendums must be backed by specific legislation, which – of course – emanates from Parliament. And if the legislation setting up a referendum is faulty, it’s up to Parliament to put it right.
So, there’s a difference between demands made to Parliament and demands made to the executive. As we saw earlier, if the executive signs up to the UN Convention On Undersized Oily Fish there is nothing, constitutionally, for Parliament to say about it. Equally, if a referendum on whether Britain should remain bound by the UN Convention On Undersized Oily Fish gave a majority for Leave, parliamentary debate wouldn’t come into it; the relevant junior minister or senior civil servant would just have to go and un-sign. But there’s also a difference between the executive and what we think of as ‘the government’. The government, in this sense, generally refers to the PM and Cabinet – a group of elected MPs. Constitutionally, however, MPs are just that – members of Parliament, who debate with and are held to account by their fellow members of Parliament. A demand to the executive which cannot be implemented by the executive – which has to be debated, developed, amended and refined by MPs before it can be actioned – is not a demand to the executive at all. It’s impossible to imagine a referendum on “leaving that treaty we signed on that Tuesday that time, you know, the one with the blue binding, or maybe dark green” – this wording would obviously leave far too much scope for government ministers to identify a treaty of their own choice, effectively frustrating the will of the people (or most of them) while purporting to honour it. But a referendum with precise and specific demands could be equally badly formed, if those demands couldn’t be implemented without political debate and extensive planning – say, “implement a flat rate of income tax and balance the budget”. In effect if not in form, this would also be a demand for ‘the government’, not for the executive: a demand, in other words, for MPs to work out how the stated demand could be met, consistent with other government commitments, and then to meet it. But if something is a matter for MPs and not for the executive, then it is a matter for Parliament. If Parliament is to be excluded, the demand needs to be phrased in a way that obviates the need for debate.
The point about the EU referendum is that it was a lot more like the ‘flat rate tax’ example than the ‘oily fish’ one. What distinguishes the result of the EU referendum from that of the AV referendum is not that the latter was legally binding and the former advisory; both bound the government to a course of action. (Although this binding should not be understood to be permanent; governments can and do change course, as we’ve seen – and, in any case, a government cannot bind its successors.) The key difference between the two is that the course of action to which the AV referendum bound the government was fully and precisely specified, leaving no more work for the legislature to do. The course of action to which the government was bound by the EU referendum is almost entirely unspecified. The referendum question, and in particular the 2015 Act, was badly drawn up – presumably because nobody responsible, the then Prime Minister included, imagined that ‘Leave’ would win. As such, the referendum was, almost literally, half-baked; it was released on the world in an unfinished state, and should go back to Parliament to be specified in the appropriate level of detail. This being impossible, it should be recognised that it is for Parliament to define ‘Brexit’, to plan out what will be involved in leaving the EU, and to publicise its benefits and costs.
At present, far from having its hands bound by the result, the government enjoys an unparallelled degree of freedom to define the result how it pleases, or not to define it at all – all the while refusing to grant Parliament any substantive oversight. Constitutionally, this is a monstrous power-grab – not by ‘the executive’ but by a group of MPs – and it should not be tolerated. Parliament needs to have a say on the referendum result, not because leaving the EU will mean that certain rights are forfeit, and not because the referendum was advisory, but simply because the referendum was a badly-formed question. It was posed in such a way that the implications of a ‘Leave’ victory, and the precise nature of a ‘Leave’ settlement, could only be worked out after the fact, in a political debate among MPs. But if such a debate is to happen – and it is happening already – then it must happen in Parliament, not between the Prime Minister and her trusties. We should not permit the ouster of Parliament.