Sunday, July 10, 2016

27% is not a Majority, and Leaving the EU Requires an Act of Parliament

Update some years later: The UK finally did leave the European Union on Jan 31st 2020. After 2 General Elections and several bumps in the road, the decision to leave was enacted by Parliament, and the particular worry that the referendum result might encourage Britain to ignore Parliamentary Sovereignty has been put to rest.

It's now a couple of weeks since the Brexit referendum. The question on the ballot was "Should the United Kingdom remain a member of the European Union or leave the European Union?" and a majority of the votes cast were for "Leave". Since democracy is the rule of the majority, and the majority voted to leave, some say that the decision to leave the EU has been made democratically, and any objections to this decision are anti-democratic sour grapes.

I disagree, and I've been asked (in this case, by my mother) to explain why I disagree. Here are the reasons why leaving the EU without an Act of Parliament would be both undemocratic in the short term and destructive to the UK's democratic constitution in the long term.

Of course, our constitution is unwritten, and so the process for changing it isn't formalised. We go by tradition, precedent, common law, and common sense.

The mandate for constitutional change is insufficient

In the referendum, 17.41 million votes were cast for "Leave" and 16.14 million were cast for "Remain". The population of the UK is 64.1 million (World Bank estimate). So about 27% of the population voted to Leave, about 25% voted to Remain. Moreover, the largest disenfranchised group (those under 18) would probably have voted strongly to Remain.

So the statement "A majority of the people voted for Brexit" is not true, not even close. If we had a formal constitution and an official process for changing it, I would wager that a popular vote of 27% to 25% would not be enough. (In the USA, for example, one of several conditions such as "ratified by three quarters of the State Legislatures" must be met.)

The campaign and result could probably not be repeated

We're used to election campaigns involving contested claims and exaggeration, but this one was extreme. This has been pointed out many times already, so I'll be brief. There's no £350 million a week coming back, immigration is not being curtailed, for those who wish to curtail immigration the path is entirely unclear, but the House of Commons has voted by 245 to 2 to guarantee that EU citizens living in the UK will have the right to remain. Given the obvious public unravelling of the Leave campaign's promises and its leadership, and some already clear economic damage, it is very unlikely that the referendum result could be repeated.

The referendum is not a mandate for a particular policy

In the weeks since the referendum, the UK's position is less clear than ever. It's clear that a deal with the rest of the EU to maintain free movement of goods but not of people is very unlikely, and that there are a baffling array of options in between staying in the EU and abandoning free trade between Britain and Europe altogether. The Leave vote is not a vote for anything except "not being in the EU". It did not set forth a particular option for relations with the rest of Europe, and almost every member of Parliament was elected on a manifesto that advised staying in the EU. The British people may have voted about something that's not wanted, but have not voted about what is wanted.

The only legitimate way forward involves Parliament

There isn't much precedent for using referenda in Britain, but what precedent there is says that referenda can be used in conjunction with Parliament, not instead of it. In the process whereby the UK joined the EEC in the 1970's (the only real precedent), the referendum result was much stronger (67% majority), but it was never used instead of passing laws in Parliament.

So far the only legal alternative to Parliament I've read about is the idea of using Royal Prerogative to pass laws relating to leaving the EU, apparently suggested by government lawyers. You don't need to be a constitutional lawyer to know that in theory the Crown can pass and rescind whatever laws it likes, but a monarch who does this in practice risks losing a Civil War, getting their head chopped off, and bringing down the monarchy. Of course I don't mean this as a threat, I certainly don't want it to happen! But the Queen is probably more aware of her role than anyone else alive, and the idea that she may make an exception from her well-known avoidance of politics and abolish an Act of Parliament without consulting Parliament, on an issue so controversial that England and Wales might go one way and Scotland and Northern Ireland another - well, even if that's legal it's still preposterous. If the government or the monarchy wants to nullify laws passed by Parliament, they have a perfectly legal and practical way of doing it - by asking Parliament.

This does leave the option that the Government might try to invoke Article 50 (giving notice of an intent to withdraw from the EU) without Parliament's consent, presuming that Parliament will cooperate later in repealing the 1972 European Communities act and many other pieces of legislation. But presuming that Parliament will comply with all this is a very risky alternative compared with asking first!

What if Parliament doesn't cooperate?

Let's briefly consider the reasons for not consulting Parliament.

  •  Parliament might vote against triggering Brexit by invoking Article 50.
    • It might. The alternative, "Don't ask Parliament because they might disagree", sounds utterly illegal and contrary to  Parliamentary Sovereignty, which is the very first principle of British politics.
  • Parliament might vote in favour of triggering Brexit, but that's against the manifesto promises of most MPs.
    • MPs are representatives, not delegates. If they choose to vote differently from their manifesto promises, that is legal and has many precedents.
  • The Government needs to negotiate with other EU countries before it can bring a bill before Parliament.
    • Nonsense. There is nothing stopping the Government from bringing forward a bill that asks for permission to negotiate.
  • It might lead to enough controversy to bring down the Government in a vote of no confidence, triggering a general election.
    • If the Government can't pass its most important legislation through Parliament, that's exactly what a general election is for. General elections are a costly, uncertain, and time-consuming process - but given that the whole Brexit process is already all of these things and more, the notion of doing something unconstitutional instead of holding a general election is crazy.
Can these arguments be dismissed as motivated reasoning? Something like "You wanted Remain to win anyway, of course you'll throw obstacles in the way of a Leave victory". Well, I do want the UK to remain part of the EU, but in this case that's not the point. The point is that overriding Parliamentary Sovereignty using an unlikely alliance between a 27% referendum vote and Royal Prerogative would set a terrible precedent. If the Government passes proper legislation to leave the EU, I'll be disappointed, I admit that. But if the bill is honest, properly worded, sensibly debated, and passed by Parliament, I'll be the first to accept its legality.

The Crown can be asked to dissolve Parliament, but not to ignore it. The people have the right to replace Parliament, but not to ignore it. These are the cornerstones of Britain's rather ad hoc but surprisingly robust democracy. It's not perfect by any means, but over the centuries it's done pretty well, particularly at avoiding the worst forms of oppression. Let's not give up our most cherished principles because of a narrow vote on a single day.

What should you do?

If you agree with this conclusion, please feel free to share and promote this article. But much more importantly for those living in the UK, write to your local MP. If you're below voting age, or a foreign national not allowed to vote in the referendum, they are still your local MP and you should write to them. This is not just for Remain supporters - if you're a Leave supporter, please write to your MP and say that Parliament should immediately put its authority behind the referendum result. This is one of those times in our history when Britain urgently needs Parliamentary leadership.