Members of parliament will soon be faced with an impossible choice. Either reject the outcome of the Brexit referendum; or comply with the public’s instruction but simultaneously, exceed the scope of their mandate. That conundrum has not yet entered the public narrative; it urgently needs to do so.
Brexit will not progress until we have a new prime minister. The first question she/he will face, is when will Article 50 be triggered?
That is not the PM’s choice. The referendum was only advisory; it did not grant legal power on the government to initiate Brexit. Our European Union membership is created, and the public’s EU rights are bestowed, by the European Communities Act 1972. Under the British constitution, the government has no power to unilaterally withdraw our EU rights as bestowed by parliament, without parliament’s consent. Furthermore, any purported Article 50 notice given without parliamentary approval would be ineffective under the terms of Article 50 itself.
Some MPs have realised this, begging an interesting political trilemma. Do they vote to trigger Article 50 in accordance with:
- The overall referendum result?;
- How the majority of their constituents voted in the referendum? (It is not clear if this would result in a different outcome to the referendum; the Electoral Commission has not yet published such data); or
- Their conscience.
MPs are free to do the latter and many will be thinking about doing so. What they may not have realised, is that they will all have to do so because of the legal mechanics of Article 50.
Article 50 implements a two-year notice period for Brexit. Once given it cannot be revoked and the notice period can only be extended if all member states agree (unlikely). During that time, the 27 remaining member states have to attempt to agree, by qualified majority (as set out in Article 238(b)), the terms of our withdrawal. Article 50 expressly forbids us from participating in the European Council’s deliberations. There is no obligation for the 27 Member States to agree on terms. Although we can lobby the EU, ultimately we would be presented with a take it or leave it offer, or nothing at all.
The government would prefer to agree Brexit’s terms with member states prior to triggering Article 50. However, Jean-Paul Juncker has already said ‘no negotiation without notification’; the EU’s trade commissioner reiterated this on Newsnight last night; and the other member states appear to be towing this line. Ukip; the public; and the pressures of uncertainty on the economy, will increase pressure for implementing Article 50 as soon as possible. Even if a deal could be reached beforehand, there is no obligation on the EU to stick to it unless the treaty itself is formally amended (unlikely). The exercise of Britain’s Article 50 rights formally hands over the future of Britain to the rest of the EU; the single biggest transfer of power in our 40+ years of membership.
It seems likely that when MPs do vote on Article 50, they will have two options. Refuse to give consent in defiance of the overall referendum result. Or give consent and in so doing, initiate an unprecedented transfer of sovereignty without public approval. No one voting Remain or Leave ever had that in their minds. This is a dilemma even for Douglas Carswell.
This dilemma urgently needs to be part of the public narrative. It could form the foundation for a second referendum. I have started tweeting my MP daily asking her voting intentions. Perhaps you can too, attaching a copy of this blog?
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Mark Rowney is a solicitor, writing in a personal capacity. He tweets at @markrowney
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An “impossible” choice? No, it’s very easy. More people voted to leave than voted to remain. Which part of democracy do some people not understand? The rules were fair to all. Although the result isn’t legally binding, we’d be telling the Leave side to accept the result if we’d won, so I think some of us ought to accept this result with some dignity, instead of throwing our toys out of the pram. Although I was disappointed with the result, at least I was able to have a say this time. Back in 1975, I missed the cut for voting by a mere 6.5 years. By the way, there was no referendum in 1971 or ’72 about joining the EEC. We joined on New Year’s Day, 1973, and that was that.
MPs don’t have consciences. They merely have opinions, which are usually completely self-centred.
There is a third alternative. MPs can vote to give notification under Article 50 provided that the conditions are acceptable to Parliament. This could require the government to have a guarantee that the assertions of the official Leave campaign can be met: full access to the single market, and end to free movement of people, no contribution and freedom from the jurisdiction of the European Court. This should all be quite easy to achieve.
Sorry won’t work. Once article 50 is triggered we’re out after 2 years. What would be needed before article 50 is the legislation outlining the chosen path, but that gives our negotiators no hand to play. Also, the problem is that there are 3 separate factions Brexit ( WTO rules), Brexit (EEA or similar) and Lexit ( Left). The positions are irreconcilable so it isn’t clear how the UK negotiators would be able to get a position through parliament with current members that wouldn’t split Labour and Conservatives. Only after a GE with new members with a higher brexit base and a dominant model might that be possible. I’m beginning to wonder if my grandchildren will see article 50 in their lifetime. Look at Institute for Government’s blog on the negotiating process. Also the trade negotiations can only happen after we’ve left..
Surely continuing trust in the ‘guardians’ is at stake. Deviating from the spirit of the chosen outcome would end belief in the political system for some time to come. It would also challenge the value of one’s vote for future elections – what would be the basis of the argument that the nation’s vote counts as supreme.
As a quick look through the pages of history will show, when people have no trust in ‘democracy’ or ‘conventional politics’, they feel that they have nowhere to turn but fascism or communism. People in this kingdom have a longstanding aversion to extremist or far out politics. I just hope the British state doesn’t give us any reason to abandon that honourable tradition.