Brexit is a strange, dreary spectacle: a grand political project floundering in a world empty of political imagination

Britain is taking back its national sovereignty without a vision of what national sovereignty is for. At the referendum the British people demanded their sovereignty, but in a time when their political and intellectual leaders have been talking down the idea of popular sovereignty for decades. The Mother of Parliaments is taking back its sovereignty, but the Mother of Parliaments is full of Remainer politicians who would have preferred that Brussels kept that responsibility instead.

And in amongst this is Jeremy Corbyn’s Labour opposition, which has just proposed ‘a new comprehensive customs union’ with the EU after Brexit.

This may pay off for Corbyn as an opportunistic manoeuvre at home: a gesture to differentiate more clearly the opposition from the government on Brexit, a gesture to attract Remainer support, a gesture of ‘moderation’ in anticipation of office, and a gesture to Tory Remainer rebels to undermine Mrs May.

But it is hardly the kind of political vision that Brexit Britain needs. Taken as a vision of the future, Britain outside the EU but in a customs union with it seems the worst of both worlds: lacking both EU membership and sovereign independence – dictated to by the EU, but without the say in EU decision-making it would have had as an EU member. Who would choose such an option, unless forced to do so by the political failure to achieve anything better?

Some Brexiteers have denounced Corbyn’s betrayal of Brexit and of working-class Brexit voters. They have a point. It is worth sparing a moment to appreciate how Corbyn – supposedly the spin-less ’conviction politician’ – has so coldly treated his own Bennite Euro-sceptic convictions. See also the veteran leftie protester being applauded by representatives of Britain’s decrepit bourgeoisie for selling out popular sovereignty in the name of economic caution, and for being a better conservative than the Conservatives. But then, arguably, why should we expect any better from a minor Bennite fossil leading a half-dead Blairite party reliant on an excruciating alliance with the left-overs of the twentieth-century Left, who have already cravenly surrendered the responsibility of sovereign democracy with the absurd excuse that Brexit is somehow intrinsically fascist?

But Brexiteers’ snarling tone suggests their own insecurity on the subject of Brexit. For the real ‘betrayal’ of Brexit was months ago.

Brexit had historic promise to be the beginning of a revival of sovereign representative democracy in Britain by breaking with the condition of EU member-statehood. That revival should have begun with the Brexit process itself. A UK government which had taken the time and effort to trust democracy and unite a majority of voters behind a vision of Brexit would have been much stronger entering the negotiating room with the EU. It might even have had the democratic support and political will to threaten to walk away from a harmful deal dictated by the EU, which is so necessary in such negotiations.

But, as The Current Moment argued all along, Brexiteers made the mistake of failing to trust representative democracy, and instead rushed to trigger Article 50 and marched unprepared straight into the EU’s favoured terrain: meeting-rooms safely closed off from democracy where they may bully smaller negotiating partners.

Instead of an open democratic Brexit, Britain has this mess. Instead of a democratic debate from the beginning about what to take into negotiations, the British people get this opportunistic manoeuvre by the opposition with the two-year negotiation period already half run. If Labour gains from this manoeuvre, it will only be because it, as the opposition, can profit from dissatisfaction with the failures of the government and the Brexiteers who have so badly bungled the task of leading a democratic Brexit.

Without political ideas that are up to the challenge of sovereignty and a break with member-statehood, this kind of opportunistic party manoeuvring within a decaying democracy is the future of Brexit Britain. Brexit is a beginning rather than the end of the break with member-statehood and the revival of representative democracy in Britain. Following Mr Corbyn’s path may very well lead Britain to end up maintaining the conditions of member-statehood outside EU membership. And that should be an especially pressing concern for the followers of Mr Corbyn, since the condition of member-statehood proves to be a singularly toxic environment for social-democratic parties like Labour.

James Aber

 

 

A Brexit Proposal – Bickerton and Tuck

Chris Bickerton (TCM contributor) and Richard Tuck, Professor of Government at Harvard University, are publishing today their pamphlet, ‘A Brexit Proposal’, which can be downloaded here – Brexit proposal 20 Nov final.

As two prominent supporters of Brexit, they lay out why Brexit is so important for the future of democratic politics in the United Kingdom and beyond, and they give details of what a vision of Brexit for the Left might amount to. They explain why the British Left has embraced a pro-EU position and why this belies a profound misunderstanding of the nature of ‘ever closer union’. The pamphlet looks at all the outstanding issues in the negotiations – a financial settlement, Northern Ireland and EU citizens’ rights – and what a solution to each of them might look like.

 

 

General Election 2017: Brexit’s Democratic Dividend

One irony of Britain’s general election result is that the Labour Party’s electoral advance demonstrates just how wrong the left has been about British politics since last year’s EU referendum.

Most of the British left was horrified by the Leave vote, seeing it as a permanent victory for UKIP, the Tory right and racism. Left-wing commentators claimed no longer to recognize their own country and openly compared the atmosphere to the rise of the Nazis in Germany in the early 1930s. We pointed out at the time that this reaction was absurd and an excuse for the left’s failure to represent working class interests. The Eurosceptic right had not suggested anything on a par with the Nazis, and in any case it had nothing to offer politically. Sure enough the Tory right and UKIP promptly imploded after the referendum. A year later the general election has produced a weakened Conservative government, stripped of its majority, and a resurgent Labour Party under a left-wing leader. UKIP has all but disappeared electorally while a record 52 MPs from ethnic minority backgrounds have been elected, including an increase in the number of Muslim MPs from eight to 13. The new parliament also contains a new record of 45 out LGBT MPs. Not only is post-referendum Britain not anything remotely like Weimar Germany, but as we hoped the referendum vote has had some positive effects for democracy in Britain.

As we argued last summer, the referendum saw a significant protest vote against the political void that had opened up between the governing class and the population. This void stands where the political process of representing ordinary people’s interests used to be. It is a void that is embodied above all in the distant and unaccountable form of government that is the European Union.  The shock of the referendum result was that this political void could no longer be ignored, but instead had to be addressed.

When the two major parties returned to the ballot box this year, they had significantly realigned their priorities. With both formally backing Brexit, debate focused on other issues. And both parties looked to the past for inspiration. The Conservative manifesto stuck to their sound finances mantra but otherwise shifted their tone markedly by trying (ineffectually) to evoke the postwar one-nation Toryism. Corbyn’s Labour Party finally buried Blairite fiscal policy and returned to Old Labour’s higher taxes to finance higher spending on public services.

In this contest between antiquated political platforms, it turned out that the Labour Party was in the stronger position. The electorate once again showed that it could not be taken for granted politically. While Brexit remains popular and May got the most support, the electorate denied the prime minister her anticipated overall majority and instead strengthened Labour’s position.

Meanwhile in Scotland the electorate delivered a bloody nose to the dominant Scottish National Party (SNP) by significantly boosting the unionist parties. It transpires that many Scots voted to Remain not out of such fanatical attachment to the EU that they now crave a second independence referendum just to stay in it – but rather because they feared the UK’s breakup. The remarkable revival of Tory fortunes in Scotland reflects their solid unionist credentials and staunch anti-SNP position. Again contrary to predictions, the fallout of the referendum has therefore strengthened the Union with Scotland.

A proper accounting for the effects of last year’s Leave vote would, therefore, find no place for the triumph of the far right. Rather it would include the killing off of austerity as government policy, the strengthening of the Union and a strengthening of parliament’s influence.  In all these ways democracy has been boosted by last year’s Leave vote. The sharp increase in turnout in the recent general election, especially among a generation turned off politics by New Labour, speaks to the return of politics after a long winter of depoliticized technocracy. The electorate has shown it can no longer be taken for granted and the shaken political elite has been forced to try to reconnect with the voters.

Peter Ramsay

Off with Henry VIII’s Head! The Need to Reclaim Brexit from the Executive

Nine months after the UK voted to leave the EU, the government has now invoked Article 50 of the Lisbon Treaty, signalling Britain’s intention to depart and beginning two years of complex negotiations. TCM has supported Brexit as a necessary step for reviving Britain’s degraded representative democracy, and thereby popular control over politics, against the twin perils of technocracy and populism. We have never been under the illusion that Brexit would instantly achieve this goal, still less create some leftist paradise. Whether representative democracy is revived depends on how political forces act now. The Brexit process involves two major challenges to popular control: the Article 50 negotiation process itself, and the “Great Repeal Bill”, both of which risk centralising power in the hands of a narrow, technocratic elite.

First, the Article 50 process re-submits the UK to anti-democratic EU processes. Against those Brexiters who argued, in a populist manner, for the immediate triggering of Article 50 after the referendum, TCM warned that this was a technocratic trap. Article 50 was deliberately designed to make it difficult for member-states to leave. The cacophony of voices now warning that a deal cannot be done in two years merely illustrates the point: by imposing an unrealistically tight deadline, Article 50 clearly seeks to deter anyone from even daring to leave. More importantly, the negotiating process will convert the democratic moment of the EU referendum into a technocratic process. In keeping with an institution that has transformed public policymaking into nineteenth-century-style secret diplomacy, the negotiations must be conducted in private, with representatives of the Council and the Commission. We wanted as much democratic contestation over the terms of Brexit before UK officials entered this technocratic process to decide our future.

Remainers have squandered this collective opportunity to shape the process by indulging in pointless fantasies of parliamentary revolt against the electorate. The last nine months have not seen substantive debates over what form Brexit should take, but rather an anti-climactic struggle over who – the executive or parliament – has the right to pull the Article 50 lever. This legal battle was only waged in the hope that parliament would refuse to pull it; but parliament could not deliver. Parliament’s “victory” was empty because it was a gift of the courts. It was the government that retained the democratic mandate of the referendum, and parliament had nothing of substance to add. The government was forced to produce a White Paper, but this provided scant detail. The main commitments made were on leaving the single market and the jurisdiction of the European Court of Justice, but little else of substance has been discussed, and the bill was not seriously opposed in the Commons despite widespread disquiet about these terms. MPs finally seemed to realise that they could not oppose Brexit, but they completely failed to offer any vision for it.

Parliament therefore passed a pro-forma act, authorising the triggering of Article 50 but not imposing any significant conditions on the negotiations. The government merely pledged to report regularly to parliament – necessary, but hardly sufficient for popular control over the process – and to permit a final vote on the outcome – which, as we have argued, does not create real democratic choice. Most bizarrely, it was only after the bill was passed that the sclerotic Labour Party issued a list of “conditions” that the final deal must meet to gain their support in 2019. Remainers taunt Theresa May for having no plan for Brexit, but in reality it was they who had nothing substantive to offer, and therefore – feebly and irresponsibly – released the executive into Article 50 talks with the freedom to negotiate whatever it likes.

Parliament’s inability or unwillingness to take any real ownership of the process bodes very badly for the so-called “Great Repeal Bill”. The government plans to leave the EU by first domesticating the entire body of EU laws (the acquis communitaire), which parliament can then amend or repeal. This would be an appropriate restoration of parliamentary sovereignty. However, the executive is seeking a so-called “Henry VIII clause”, which would allow ministers to issue “secondary legislation” (edicts) that would amend this primary legislation. This is justified partly in technical terms: there is a lot of law to enact (over 170,000 pages), and much of it needs tweaking for the UK context.

The threat to representative democracy is obvious enough from the sinister “Henry VIII” label. Allowing ministers to dictate primary legislation is incredibly dangerous and amounts to a massive “Whitehall power grab”. Parliamentary sovereignty would be restored with one hand, then stolen away with the other.

This is clearly unacceptable, but it also underscores a key reason for leaving the EU. It is precisely because law-making has been transferred from parliament to internationally-networked executive agencies that this problem exists. For decades, laws and regulations have been initiated by the unaccountable European Commission, then adapted and finalized via secret negotiations between national ministers and European Parliament representatives in so-called “trilogues”, far removed from either public scrutiny or political debate (see here, pp.37-41, for more details). The vast acquis that now governs our lives – and must now be either retained or discarded – has been made primarily through the secretive exercise of executive power, not through our elected representatives. The proposed “Henry VIII” clause seeks to perpetuate this misallocation of authority by allowing UK ministers to decide which laws will stand or fall, or how they should be adapted to the UK. Nonsensically, it posits excessive executive power as the solution to a problem caused, in large part, by excessive executive power facilitated by EU structures.

The failure of parliament to influence the Brexit process so far, and the risk that it will be further sidelined, speaks to the degradation of representative democracy that was both expressed in, and accelerated by, the EU’s formation. As TCM’s Chris Bickerton has argued, as part of a general crisis of political representation, European governments retreated from their citizens into secret negotiations with one another behind closed doors, creating structures that further undermined democracy. European states thereby became “member-states”. As Britain leaves the EU, it casts off the legal form of member statehood, but the rotten content still remains: a political class disconnected from the masses, a parliament unused to exercising popular sovereignty, and an executive and bureaucracy accustomed to unaccountable rule.

The rot is most obvious in the party that ostensibly “leads” the official opposition. Jeremy Corbyn, betraying his own Eurosceptic principles, lost the opportunity to lead a progressive Brexit campaign. Labour, fatally alienated from the working classes it claims to represent, could not lead Remain to victory. Corbyn’s residual democratic principles, plus straightforward electoral calculus, meant Labour lacked the spine to oppose the referendum result; yet it now has absolutely nothing meaningful to offer on Brexit. Its total disarray, its inability to lead – borne of its decades-long alienation from ordinary citizens – is what allows a political pygmy like Theresa May to dominate the political scene, and the polls. She at least seems to grasp that there is a solid block of opinion requiring representation and leadership, and is seeking – however objectionably – to provide it.

The next few months will be decisive in determining whether there is anyone in the UK willing to recognize and then tackle this rot directly. Parliament needs to recover its function in representing social constituencies, take charge of the Great Repeal Bill, and exercise meaningful oversight over the executive’s conduct of the Article 50 talks. If the Remainer opposition merely persists in sneering from the sidelines, hoping to thwart Brexit two years hence, it will squander any chance of influence and, more importantly, the enormous opportunity for democratic renewal that Brexit has created.

Lee Jones

Give them British citizenship!

The British government is not treating EU citizens resident in the UK as a bargaining chip in the negotiations with the EU. On the contrary, it is the EU that is treating those citizens, and British citizens resident in Europe, in this way. Theresa May has already sought a deal allowing EU citizens resident in the UK to remain here following Brexit, if EU governments will do the same for British citizens in their countries. EU leaders have refused to make any agreement until Article 50 has been invoked and its secretive negotiation process has begun.

The UK government should respond to this with a very public message that it is committed to the rights of those who live here. It should unilaterally declare that EU citizens have a right to remain in the UK after Brexit, and urge European governments to reciprocate. Indeed the British government should go further. It should make a point of inviting those EU citizens to become British citizens, and reduce the significant barriers to them doing so that exist at the moment.

The Prime Minister is not wrong to insist that she must put the interests of British citizens first. And EU governments may refuse to reciprocate. In Greece those governments have demonstrated that their attitude to European citizens can be almost as vicious as their treatment of African and Asian migrants. But the significant costs that might be caused by EU intransigence on the rights of British citizens abroad will be far outweighed by the long-term benefits to all British citizens.  We would be citizens of a state that has the confidence both to insist on its accountability to its own people (its democratic political sovereignty) and its openness to others (its internationalism). Such a state would earn worldwide respect from many millions of ambitious, talented and public-spirited individuals who are crying out for a break with the stale politics of the past. That would be an asset beyond price.

Opinion poll evidence suggests that there is overwhelming popular support in Britain for allowing EU citizens to remain in the UK after Brexit. A huge opportunity exists here for Theresa May really to lead the world. There is, of course, no evidence that she has either the political imagination or courage to take the opportunity – her long tenure as Home Secretary suggests the opposite. Only those committed to an internationalist politics of sovereignty are likely to be willing.

Peter Ramsay

 

 

 

 

 

Too much of a good thing: arguments against a second referendum

The demand for a second referendum on the terms of Brexit seems to be gathering force. The recent by-election victory for the Liberal Democrats’ in the hitherto Tory safe seat of Richmond was widely seen as a mini-referendum on Brexit. Former Tory Prime Minister John Major has waded into the debate, with his claims that while the popular verdict on the EU should be respected, a second referendum is nonetheless justified. Even Simon Jenkins, one of the few major commentators that managed to retain his composure in the aftermath of the June referendum, has given qualified support to the idea of a second referendum. In light of the continued prevarication over Brexit, it is worth revisiting some of our broad arguments regarding referendums and representative democracy. The Brexit effect continues to reverberate through British politics: those who sneered at referendums as rabble-rousing now earnestly make the case for a second referendum – thereby risking institutionalising the referendum as a mode of governance in Brexit Britain.

It is not difficult to discern arguments for having a second referendum, not least the fact that the precedent has now been established. The terms on which Britain leaves the European Union (EU) are clearly important for the country – in terms of movement of peoples, border control, long-term trade opportunities and patterns of economic growth. If the question of membership of the EU merited consulting the public, why should the terms on which we leave the EU not merit a similar level of democratic legitimation and public engagement? It is also worth noting that debates on a second referendum cut across the ongoing tussle in the Supreme Court over managing Brexit, such as the timing and modalities of invoking Article 50. After all, regardless of when Prime Minister May triggers Article 50 and whether or not she does it with a parliamentary vote, she could still call a referendum on the outcome of negotiations with Brussels at the end of the two-year negotiating period that would follow the invocation of Article 50. In light of all this, it is worth recalling what the best arguments for holding the Brexit referendum were in the first place, and considering how they stack up against the arguments for a second referendum.

On TCM we have sought to make the political case for representative democracy – against the inter-twined threats of technocratic subversion on the one hand, and the phony politicisation of populism on the other. Despite the fact that referendums justly have a reputation as the tool of direct democracy and populist authoritarianism, and whatever David Cameron’s personal motivations for calling the referendum, I supported a referendum on Brexit. More than this, I reckoned it to be the single most important political question put before the British electorate over the last three decades. There were several reasons for holding this view.

First, approaching the referendum entailed reckoning with the parlous state of representative democracy in Britain itself. That is to say: declining rates of public engagement and political participation whether measured by compression of the ideological spectrum, declining interest in politics, collapsing membership of political parties and the long term decline in voting in general elections. With the structures of representative democracy having been so rotted through prior to the referendum, it is reasonable to supplement the process of political decision-making with direct public engagement.

Important as such factors are, these were nonetheless secondary considerations. More important was the fact that it was the nature of democracy itself that was at issue in the referendum. Should legislation be crafted and debated by elected representatives, or channelled via the executive’s prerogative over foreign policy into Brussels, to then be funnelled back to national capitals and then be rubber-stamped by national parliaments? This hollowing out of the democratic process that took place under the aegis of the EU was the strongest reason to ensure that the electorate was given a voice over membership of the Union itself. Irrespective of the outcome, the referendum energised democracy. With the Brexit vote, the possibility of restoring representative liberal democracy at the nation-state level exists. Whatever the outcome of Brexit, political elites have been put on notice by the referendum as to the fact that they can be held to account, even through the limited formal representative structures offered by the British state. Evading popular accountability has become more politically difficult since the referendum.

Yet there are also good reasons to be wary of repeat referendums. A direct national vote on the character of national democracy is a different kind of political decision than a direct national vote on the outcome of negotiations overseen by elected representatives: the latter clearly slides into plebiscitarianism. Instead of escalating plebiscitiarian rule, British political parties should take advantage of their post-Brexit boost in membership and public political engagement to rebuild democratic contestation at the national level. Doubtless opportunistic Remainers will rally behind the call for a second referendum of whatever complexion, in the hope of throwing anything they can in the way of Brexit. Yet Remainers’ criticisms of the political degradation resulting from Brexit risk becoming a self-fulfilling prophecy for which they will be complicit: if plebiscitarianism is embedded in the functioning of the British state, then a democratic shot in the arm may end up becoming a debilitating drug.

Philip Cunliffe

The High Court Undermines Parliamentary Sovereignty

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