On 3 November, the High Court of England and Wales ruled that parliament, not the government, has the power to invoke Article 50 and trigger the UK’s departure from the European Union. This has generated glee from Remainers, and a bitter and sometimes ugly backlash from Brexiters. While the ruling is unlikely to lead to Brexit being thwarted, it is certainly a blow to democracy, one that illustrates the deep crisis of political representation that afflicts the UK.
The ruling: undermining parliamentary sovereignty
Much Brexiter outrage focuses on the fact that three unelected judges are seen to be thwarting the democratic will of 17.4 million voters. Indeed, the Remainers who brought this case were not motivated by democratic impulses. They know that three-quarters of current Members of Parliament (MPs) are Remainers. By shifting control over Article 50 to parliament, their hope is that MPs will block Brexit, by overturning the referendum result of 23 June or, failing that, by kicking Brexit into the long grass.
The central question in the case was who has the right to repeal the legal rights and duties associated with EU membership that will necessarily follow from invoking Article 50 of the Lisbon Treaty. In the UK’s constitution the conduct of foreign relations, particularly the (un)making of treaties, is a matter for the ‘Crown’, whose ‘prerogative’ is exercised by the executive branch; hence, the government argued that it had the right to invoke Article 50. Remainers argued that the EU treaties are special because EU laws enacted under those treaties directly affect the rights and obligations of British citizens. Since the civil wars of the seventeenth century, only parliament has had the constitutional authority to repeal laws or make new law. Invoking Article 50 would lead to withdrawal from the EU and this will effectively repeal a wide range of laws giving British citizens various rights and obligations. Therefore, the Remainers argued, only the (the overwhelmingly Remainer) parliament has the constitutional authority to set that process in motion.
The judges sided with parliament – which may appear to be a victory for democracy. But considered in its political context, the judges’ legal argument actually subverts the democratic content of parliamentary sovereignty.
To begin with, what Remainers are ultimately in favour of is not the restoration of parliamentary sovereignty over the powers of the executive but remaining within the EU, and remaining within the EU necessitates parliament relinquishing a considerable part of its power to make law to the executive. The European Communities Act 1972 automatically enacts EU law as UK law, without requiring parliament to pass any further statutes each time EU law changes. UK ministers contribute to making EU law through their activity in the European institutions. The power that ministers are exercising when they make those EU laws is nothing other than the Crown’s prerogative to conduct international relations. The result is that Remainers who loudly claim to be upholding the sovereignty of parliament against Theresa May’s reliance on the prerogative are the same people who want parliament to continue to surrender a significant part of its law-making powers to the Crown in the form of EU law-making.
If the prime minister did use prerogative powers to implement Article 50, this would not involve the Crown taking powers away from parliament. Parliament asked the British people in the referendum whether we wanted to retain the rights associated with EU membership, and a majority voted not to. If the government invokes Article 50, it would simply be implementing a democratic decision called for by parliament itself. Moreover the government has pledged to maintain all of the legal rights and duties in domestic law that arise from EU law, allowing parliament to retain, repeal or amend them after Brexit.
Parliamentary sovereignty is threatened far more by the legal ruling than it is by Theresa May. The judges’ insistence that parliament’s sovereignty requires parliament to make the decision on Article 50 pretends that the decision has not already been made by the people that parliament is supposed to represent. The judges’ ruling therefore opposes parliamentary sovereignty to popular sovereignty. The political authority of parliament ultimately derives solely from the extent to which it represents the people. By encouraging and empowering our political representatives to set themselves against the majority decision, the ruling has the effect of undermining the true sovereignty of parliament in the name of upholding it.
The crisis of representation
The ruling underscores the deep crisis of political representation in Britain. Theresa May’s reluctance to hand the authority over Article 50 to parliament is not simply because she thinks ‘revealing our hand’ is a bad negotiating tactic. It is because she cannot trust the predominantly Remainer MPs to accept the referendum result, and can foresee disaster should they refuse to do so. A large majority of the public backed May on this, suggesting that they, too, do not trust MPs to represent them. The same sentiment is conveyed by the shrill Leaver reaction to the court’s judgement.
This is not a ‘constitutional crisis’, as some are saying; it is a crisis of political representation, expressing the disconnection of the political elite from the electorate. Parliament has been exposed as highly unrepresentative: 74% of them – and every political party bar UKIP and the Ulster Unionist parties – backed Remain, versus just 48% of the voters. Many MPs have openly expressed a desire to frustrate the outcome. This creates a situation where it is the executive branch that more accurately represents popular sentiment by pledging that ‘Brexit means Brexit’.
This is hugely problematic precisely because, as TCM has repeatedly argued, open debate and participatory democratic processes are now vital to determine what Brexit actually means in practice. The majority of people favoured leaving the EU, thereby authorising the government to change the law accordingly, including by repealing rights associated with EU membership. Nevertheless, the exact nature of Brexit was never defined during the campaign; no one can seriously argue Leave voters endorsed any particular option.
From the democratic point of view, it would be good to have as wide a political debate on this question as possible. The Brexit negotiations are not a matter for secret diplomacy, still less are they a poker game. The terms of Britain’s departure concerns us all. If Brexit is going to restore representative democracy, and strengthen parliamentary sovereignty, then the process should begin with collective political debate on defining what Brexit means. This involves representing the interests of both Leavers and Remainers. The referendum produced a clear result, but 16 million people still voted to Remain. They must accept that they lost on the fundamental question of EU membership, but are fully entitled to have their concerns and interests reflected in discussions on the nature of Britain’s departure.
However, the crisis of representation is such that, although parliament should be making decisions on the form of Brexit, it is unrepresentative with respect to Brexit itself, and therefore ought not to be given a veto over Britain’s departure from the EU – which is what giving MPs a final say over Article 50 does.
The real threat to parliamentary sovereignty arises from legislators’ continuing willingness to hold Brexit hostage, which is only encouraged by the High Court’s judgement. If MPs really respected the true basis of parliamentary sovereignty – the will of the electorate – they would stop blackmailing the electorate. They would unambiguously commit themselves to respecting the referendum result and leave invoking Article 50 to the executive. They would confine themselves to debating how best to implement the judgement of those who give them their authority. As long as they refuse to do this, too many electors will not trust them to be involved and the government can correctly stake a greater claim to true representativeness and to the political authority to keep the negotiations secretive.
Will the judgement foil Brexit?
Despite Leaver anxiety, the simmering mutual antipathy between the Leave majority in the electorate and the Remain majority in parliament will probably keep the UK on course to leave the EU. Work to model the EU referendum results at constituency level shows that 421 out of 574 English and Welsh constituencies probably voted Leave, and 270 definitely did, while only 152 constituencies probably voted Remain, while only 76 definitely did so. If MPs defy the referendum result, they would face an enormous backlash and many could lose their seats.
Theresa May understands this – which is why she has doubled down on Brexit, reiterating her intention to invoke Article 50 by March. Many Remainer MPs too are hearing the electoral message, and now say that parliament’s role is to scrutinise the government’s negotiating position and ensure that Britain pursues an approach that protects British interests – from their perspective, staying in the single market. Following the ruling the Labour Party leadership has reiterated that Labour will not block Article 50, but will just ‘fight for a Brexit that works for Britain’. True, some MPs are still clinging to the idea of a second referendum on the final deal, but for reasons we have outlined previously, that is both politically unacceptable and impractical, making it very unlikely to fly in the Commons. The betrayal of the referendum result is therefore technically enabled by the High Court’s judgement, but remains politically unlikely.
If it does happen, the consequences will be unpredictable. One possibility is that Leave voters will rebel against their turncoat MPs, forcing their deselection or defecting to other parties – possibly reviving the disintegrating shambles that is now UKIP. While this revival would be a regrettable result of Remainer intransigence, it would at least have the positive outcome of disciplining the people’s representatives, showing them that they cannot continually defy the voters’ will. That might actually strengthen representative democracy. However, another possibility is that parliament’s frustration of the referendum result deepens popular cynicism towards the electoral system and the elitist Remainer parties populating it. The electorate will then increasingly look for solutions that attack and circumvent this system, making them prey to extremist populist appeals.
Although Remain MPs appear to be seeing sense, the possibility that parliament might frustrate the majority decision in the referendum is still a greater threat to democracy than giving the executive wide discretion to interpret the result, undesirable as that is.
The Supreme Court may yet dig parliament out of the mess it has got itself into by finding a way to reverse the High Court ruling when the government appeals in December, though it would be unwise to set too much store by the judges’ democratic instincts. The highly personalised attacks on the High Court judges in the Brexit-supporting media are no doubt intended to intimidate the Supreme Court. If the court does not overturn the ruling, a general election may be the only solution. Whatever the final result of the legal proceedings, parliament is at a crossroads. MPs can choose to undermine democracy further by continuing to delay or frustrate the implementation of the majority’s decision. Or they can participate in the renewal of democracy by giving up their claim to have a right to do so.
Lee Jones and Peter Ramsay