Brexit – when is advisory compulsory?
The referendum result, as we are told by those elements in the media that favoured Remain, is advisory. Meaning that it is not binding and has no force in law. Which means that Parliament can refuse to play along. Would it? Should it? There’s an interesting discussion on the constitutional issues in The Independent here.
Even though, as Michael Heseltine said shortly after the result, a majority of around 350 MPs opposed Brexit, it would take a great deal of courage on the part of individual members to put their jobs at risk by defying the “will of the people”.
Personally, I would like to have seen a different process.
Across the Atlantic, the founding fathers of the USA imposed a requirement that a change in the constitution requires a vote of at least two thirds of both houses of Congress to carry. I find it hard to accept that the change delivered by Brexit is of less importance than the 23 amendments, which include the abolition of slavery.
There is an interesting additional requirement in the US process. If Congress passes a constitutional amendment, at least three quarters of the member states must then approve it. If we had taken a leaf out of America’s book, we might additionally have prescribed that Brexit would not take place if more than one of the four constituent parts of the United Kingdom – England, Wales, Scotland and Northern Ireland – voted against it. The last two voted Remain. Therefore Brexit would have been scuppered.
It’s all very well to say that David Cameron should never have allowed the referendum to be determined by a simple majority. The fact is that he didn’t. But would it now be against the spirit of our democracy for Parliament to say “yes, we know a majority voted in favour of Brexit. But you, the electorate, entrusted us with the power to pass laws that are in the country’s best interest. We happen to believe, all things considered and in the light of subsequent developments, that Brexit is contrary to the nation’s interest”?
There is an interesting parallel in the Labour leadership crisis. 172 out of 229 Labour MPs have publicly expressed no confidence in Jeremy Corbyn’s leadership. They must know that he might well win a new leadership race, and that their own jobs might therefore be at risk at the hands of his vengeful supporters. Yet they are prepared to defy those supporters who overwhelmingly elected him last year.
So the question is, should we let our politicians act in what they think is the best interest of their party, as in the case of Labour, and their nation, in the case of Brexit? Or should they slavishly follow the wishes of the electorate even if they know that the consequences will be disastrous?
There will most likely be a new Labour leadership contest. If the new leaders of the two main parties are sufficiently far-sighted, they will debate the Brexit question at their autumn party conferences, or if necessary, at emergency conferences called as soon as they are in place. They should then call for a Leave/Remain resolution on a free vote in the House of Commons.
If Parliament rejects Brexit, the Prime Minister should call an immediate general election. Party positions should have been established at the conferences, but candidates should be free to state their own views on Brexit in the election.
The newly-elected parliament should then vote definitively on the issue.
Impractical? Complicated? Unacceptable because of the lengthy period of uncertainty involved? Maybe. But such a process would restore the primacy of Parliament and defuse objections that MPs voting against Brexit were ignoring the will of the voters.
And if the new leaders are in place by mid-September, an election could be held by mid-October, at which point Article 50 of the EU treaty could be invoked, or otherwise Brexit put to bed. Is a delay of twelve to fourteen weeks too much to ask before we take the final step? I think not.
Sharper minds than mine are working on ways to force a re-think. I hope they succeed.
Whichever way it goes, and especially if Brexit falls over, it’s equally important is that we address the concerns of the 37% of the electorate who voted Leave.