Brexit would be constitutional and economic suicide

 29th June, 2016

With the horrific shock of the Brexit referendum result now a few days old, a clearer picture is beginning to emerge, from which possible paths can be outlined to keep the United Kingdom from disintegrating, constitutionally, economically and, yet more importantly, as a moral force for good in the world.

There should be no doubt in anyone’s mind, regardless of their party affiliation, that we are facing the most serious crisis since the fall of Singapore at the hands of the Japanese in 1942, or perhaps even since the Civil War. Britain is in danger of reverting to the state in which it was before it set on the path to become a first-rate power, at the outset of the eighteenth century, eventually playing, as the metropolitan base for an Empire on which the sun never set, a pivotal role for moral and economic progress, fairness and peace on all five continents.

I’m not certain that the end of the British Empire was inevitable, since it was principally caused by America’s undisguised hostility to its continuation. But after the Suez crisis that became a moot point. The decline that set in after the collapse of British power1 occurred sufficiently long ago for anyone with a bare minimum of lucidity to realise that we were only lifted out of that morass after we joined what was then the European Community and is now called the European Union.

Neither the utopian federalist stance, nor the little-Englander approach of the Leavers, stand up to examination

The change of name should not deceive us: the only realm in which Europe has been a success — and a resounding one — was as the world’s largest and most dynamic free trading bloc. Margaret Thatcher perfectly understood this when she took an uncompromising stand in favour of the Single Market in the face of fierce French opposition.

That the Leave camp should have ignored such self-evident truths during the electoral campaign, misleading the British people into believing Brexit would somehow allow us to return to a mythical greatness, should mark them for ever as the guilty men whose folly brought the United Kingdom close to destruction, not least because of the vastly increased risk that the Scottish Nationalists, who adopted an openly two-faced position in the referendum debate, could use the result as a pretext for forcing secession from the Union.

I feel all the more angry at these men because many of those who actively campaigned for Leave sincerely shared my pride in Britain’s heritage and greatness. Like them, I am irritated by the unnecessary addition, above the Royal Arms, of the phrase European Union on my passport; like them, the blandness of the so-called European flag2 evokes nothing for me other than technocratic emptiness. Like them, I do not for a moment believe in the feasibility or, indeed, desirability of a European superstate.

And I conversely emphatically do not share the view of many of those who most vocally supported Remain on the basis of a toxic belief in the inherent moral superiority of that same yet-to-be-enacted European superstate. These extreme integrationists, with their dream of an ever closer union, have often made building their utopian Europe the overriding goal of their lives, becoming even more frenetic in the years after the fall of the Berlin Wall, which saw many of their other ideals destroyed.

For the most vocal Remainers, freedom, openness, the pursuit of happiness, hope, friendship between peoples depended primarily, indeed exclusively, on Europe. For the Leavers, exactly the reverse held true. Most of the more articulate actors in the referendum campaign, unfortunately, have come from these two equally flawed and equally extreme camps.

I still believe the Prime Minister was right to call the referendum, given the intractable hold that opposition to membership of the European Union had established since the late 1990s, threatening to destroy the two-party system owing to the emergence of UKIP. If anything I believe that decision is retrospectively vindicated by the realisation, evidenced by the heavy Leave majorities in Labour areas, that Brexit is, in all likelihood, a more poignant poison for Labour than it is for the Tories.

In reality, British membership of the European Union amounted to no more than participation in the world’s most dynamic free-trade zone

The mistake, therefore, was not to base the Remain campaign on a common-sense argument that Britain’s membership of the European Union is essentially confined to participation in a free-trade zone: the opt-outs we secured, as I stressed in the post I wrote just prior to the referendum, mean we are protected from the whole range of cooperation areas which, for various reasons, do not appeal to us.

Moreover, while utopian European integrationism is not dead yet, as witnessed by the reactions of many continental observers whose response to Brexit was a demand for deeper integration, the reality is that the construction of a European superstate stopped dead in its tracks well before Brexit. Public opinion has turned against it even in the countries that had historically been most enthusiastic about it. The wise British encouragement of enlargement in Eastern Europe, which on the whole shares the high value the British place on national identity, has also to a large extent contributed to this. Far from been seen as the start of some undefined liberation, as the Leave camp would have us believe, the Brexit vote will most certainly be viewed by our allies in the European Union as a betrayal that leaves them in the lurch.

These considerations, however, are now unfortunately water past the bridge. The primary case for Remain was always economic: chaos was rightly predicted, and now that the warning has been ignored, chaos has ensued. The government’s task now is to find a way to get us out of this mess.

Constitutionally, the Brexit referendum result does not bind the Government

The first consideration to bear in mind is constitutional. Referenda are alien to our political tradition. Our Mother of Parliaments is unquestionably the world’s most functional instance of representative democracy. Plebiscitary democracy is thus wholly alien to the British Constitution and it is political expediency alone that motivated the three referenda that had been held before Brexit3. The fact that the result in all three cases conformed with the wishes of the government of the day and crucially implied no fresh legislation for the electorate’s verdict to be complied with meant that there was no need to examine the constitutional implications.

In this instance, however, the Government is confronted by a result that confines on economic and political lunacy. It is thus bound in duty to examine what provisions must be made to preserve the national interest and while its margin for manoeuvre will be limited politically because the result of the referendum cannot be entirely disregarded, decision-making authority in this country remains vested in the Queen in Parliament, which is free to choose any course of action.

Only the Queen in Parliament can act to trigger the Article 50 procedure for withdrawal from the European Union, and is free not to do so

The implications of this were very clearly set out by Nick Barber, Tom Hickman and Jeff King in a remarkable article published on 27th June by the UK Constitutional Law Association, Pulling the Article 50 Trigger: Parliament’s Indispensable Role:

In this post we argue that as a matter of domestic constitutional law, the Prime Minister is unable to issue a declaration under Article 50 of the Lisbon Treaty – triggering our withdrawal from the European Union – without having been first authorised to do so by an Act of the United Kingdom Parliament. Were he to attempt to do so before such a statute was passed, the declaration would be legally ineffective as a matter of domestic law and it would also fail to comply with the requirements of Article 50 itself.

There are a number of overlapping reasons for this. They range from the general to the specific. At the most general, our democracy is a parliamentary democracy, and it is Parliament, not the Government, that has the final say about the implications of the referendum, the timing of an Article 50 our membership of the Union, and the rights of British citizens that flow from that membership. More specifically, the terms and the object and purpose of the European Communities Act 1972 also support the correctness of the legal position set out above.

The authors of the article argue that the provision in Article 50 of the Lisbon Treaty4 that any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements cannot be interpreted as meaning that the power to make a decision to withdraw falls within the Royal Prerogative as exercised by Her Majesty’s Government. In support of this position, they quote a recent statement of this principle can be found in the Fire Brigades Union Case in 1995, where Lord Browne-Wilkinson stated that:

…it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament as expressed in a statute and, to an extent, to pre-empt the decision of Parliament whether or not to continue with the statutory scheme…

We are members of many other international organisations such as the Council of Europe, from which the Government is free to withdraw using the Royal Prerogative. As the authors of the article point out, everything depends on the terms, object and purpose of the statute in question. The Human Rights Act 1998, for instance, incorporates the European Convention on Human Rights in a very different way. (Though unfortunately, the Government did not act on its declared intention of repealing the Human Rights Act, which would quite possibly have saved it from the calamitous Brexit vote.)

Those to whom the conclusion that only Parliament can act to empower the Government to invoke Article 50, which makes the process of withdrawal irrevocable, is unwelcome will argue that the referendum result, while not legally binding, is binding politically which in practice is the same thing. The Prime Minister wisely chose not to challenge that interpretation directly, at this stage, by stating that the result of the referendum would be complied with, but he also crucially informed the other member states, to their undisguised dismay, that the decision to invoke Article 50 would not be taken until October. That choice was not just dictated by the understandable wish to pass the buck to his successor, but also by the need to postpone a decision that he knows will have irreversible and disastrous consequences until all the parties involved have had time to consider its full implications at their leisure.

An early general election would give the next Prime Minister a fresh political mandate to keep Britain in the EU

There is considerable evidence that a large number of voters who were misled by the Leave campaign into voting for Brexit now bitterly regret their choice and wish they could take their vote back. Even the former Sun editor Kelvin MacKenzie has revealed he regrets voting for Brexit. The horrendous fallout from the referendum thus means there is no longer a valid political mandate for Brexit. Indeed, there arguably never was one: as Kenneth Rogoff pointed out, our lack of familiarity with the intricacies of referenda allowed us to embark on the Brexit consultation without safeguards against the absurdly low bar for exit, requiring only a simple majority. Given voter turnout of 70 per cent, this meant that the leave campaign won with only 36 per cent of eligible voters backing it.

In the circumstances, Mr Cameron’s successor would be acting with perfect constitutional propriety if he were to seek an early general election, which would require the consent of two-thirds of MPs or repeal of the Fixed Term Parliaments Act5. The exceptional gravity of the constitutional crisis confronting the country as a direct consequence of the Brexit débacle provides ample justification for acting in this way.

Some Conservative MPs would be dismayed at the prospect of cutting short what was until last week expected to be the first real Conservative government since 1997 and some have even informed prospective candidates for the leadership that they would make their support contingent on an undertaking not to seek to dissolve Parliament. Yet given the current state of the Labour Party, which is close to implosion as a result of Jeremy Corbyn’s inept leadership, I believe the risk is worth taking.

Owen Jones, one of the more lucid members of the Labour Party, could not have described its situation more forcefully:

The Tories — and the country — are in crisis and their prime minister a lameduck, but today a poll gave them a 4 point lead. Yesterday a poll put Labour neck-and-neck with the Tories, but read the small print: 53% of people who voted Labour in 2015 want Jeremy Corbyn to resign. The Tories are set to elect Boris Johnson — whether we like it or not, one of the country’s most popular politicians — as their leader, riding a wave of post-referendum euphoria on the part of the majority who voted to leave the European Union. Yes, Labour won mayoral elections in London and Bristol, and I expect it would do relatively well in a general election in major urban centres, particularly among the minority of younger people who can currently be mobilised to vote, not least in diverse communities. Elsewhere looks to be different. In smaller working-class towns, the danger of a re-energised UKIP doing an SNP and storming Labour heartlands is a very obviously clear danger. The prospects of winning support in Scotland in a few months are nil.

The resulting general election would clearly hinge essentially, possibly solely, on the issue of whether the Brexit referendum result is to be carried through. It is in my view unlikely that the result of such a general election, held several months after the electorate was made aware of the consequences of withdrawal from the European Union, would produce a majority for going ahead with withdrawal in the House of Commons. In any event there is now nothing left to lose in trying.

That is not to say that the fallout from the vote held last week would be entirely cancelled: the embarrassment, ridicule and some of the political and economic impact would doubtless remain. But the United Kingdom would have pulled away from the brink. And the rest of Europe would probably emerge stronger and more effective from the experience.

  1. Barnett, Correlli. The Collapse of British Power. William Morrow, 1972. ↩︎

  2. Until 1985, the European Community quite appropriately had no flag of its own. It then adopted the flag that had previously been used by the Council of Europe. It should be borne in mind that the design of the European flag2, created in 1955, actually incorporates an emphatically noble element: in 1987, Arsène Heitz, its creator, revealed that his inspiration was the crown of twelve stars of the Woman of the Apocalypse, often found in Marian iconography. ↩︎ ↩︎

  3. The 1975 referendum on membership of the European Economic Community, and the 2014 Scottish referendum, were purely advisory. The result of the Alternative Vote Referendum held in 2011 In consequence of a pledge made to the Liberal Democrats was made binding, but only because this provision was incorporated in the Act of Parliament which instituted it. ↩︎

  4. Before the Treaty of Lisbon entered into force on 1 December 2009 no provision in the treaties or law of the EU outlined the ability of a state to voluntarily withdraw from the EU. The European Constitution did propose such a provision and, after the failure to ratify it, that provision was then included in the Lisbon Treaty. ↩︎

  5. The Fixed Term Parliaments Act, adopted in 2011 at the insistence of the Liberal Democrat party as a condition of participation in the coalition government, provides that Parliamentary elections be held every five years, unless a motion of no confidence is passed or the House of Commons, with the support of two-thirds of its total membership (including vacant seats), resolves ’That there shall be an early parliamentary general election’. ↩︎