[Ed: Part I of this two-part series was published here, on Saturday November 19th 2016.]
The logic of referenda
Whatever the status of the prerogative there are also the logical implications of holding a referendum. Parliament voted overwhelmingly for the Act (316 for, 53 against) which authorised a referendum on EU membership. There was no question of it only being advisory because the Act which sanctioned the referendum contained no such clause and politicians during the campaign did not say it was only advisory.
Apart from the fact that there is no mention of it being only advisory in the Act which legalised the referendum, there was plenty of evidence to establish beyond doubt that the intention of the government was to treat it as a vote binding on the government. The then Foreign Secretary Philip Hammond opened the second reading debate on the Referendum Bill on 9th June 2015 by stating:
“This is a simple, but vital, piece of legislation. It has one clear purpose: to deliver on our promise to give the British people the final say on our EU membership in an in/out referendum by the end of 2017.”
He followed it up with this:
“Few subjects ignite as much passion in the House or indeed in the country as our membership of the European Union. The debate in the run-up to the referendum will be hard fought on both sides of the argument. But whether we favour Britain being in or out, we surely should all be able to agree on the simple principle that the decision about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber. The decision must be for the common sense of the British people. That is what we pledged, and that is what we have a mandate to deliver. For too long, the people of Britain have been denied their say. For too long, powers have been handed to Brussels over their heads. For too long, their voice on Europe has not been heard. This Bill puts that right. It delivers the simple in/out referendum that we promised, and I commend it to the House.”
The government reiterated the intention and status of the referendum when they sent a leaflet to every household in the United Kingdom.
The page entitled “A once in a generation decision” ran:
“The referendum on Thursday 23rd June is your chance to decide if we should remain in the European Union.”
“This is your decision. The Government will implement what you decide.”
All that being so, logically Parliament surrendered its power to make decisions about leaving the EU after the Referendum Act was passed.
Finally, the claim that Parliament is at present sovereign is clearly a nonsense because Parliament will remain subordinate to the EU, and UK law subordinate to that of the EU until the UK has left the EU. The use of the prerogative is necessary to once again make Parliament sovereign.
The danger of betrayal by the government
An all too plausible scenario is that there will be months of Parliamentary debate of one sort or another, perhaps taking the country well into the New Year with Article 50 still not activated. At some point Theresa May says, well, there has to be compromise – and agrees to attach limits to the negotiations her government can undertake. These will almost certainly include membership of the single market.
Why is that plausible? Because May is a remainer, as are most of her cabinet. Three of the four great offices of state are filled with remainers – PM (May), Chancellor (Hammond), Home Secretary (Rudd) – while the fourth, the Foreign Secretary (Johnson) is a shameless careerist who could turn remainer at the drop of a hat if he thought that would improve his prospects of becoming PM. Such an outcome might well suit a majority of the Cabinet.
Already there are the ominous signs that, despite the vote to leave, attempts are being made to stitch the UK back into the EU: the UK has opted to go back into Europol and Boris Johnson is seeking to retain the UK as the host for the European Capital of Culture in 2023. The danger is that this type of piecemeal tying of the UK back into the EU may continue without adequate protest because the ordinary British voter may understandably not be aware of the significance of each individual hook which re-attaches the UK to Brussels.
It is true that two of the three ministers who have formal responsibility for the detailed management of Brexit – Liam Fox and David Davis (Boris Johnson is the third) – do have strong Brexit credentials but they are second rank ministers. Obvious choices of rock-steady Brexiteers to be involved at secretary of state level such as Bill Cash and John Redwood have been left out of the government.
There is also an almost blanket support amongst the opposition parties for a resistance to leaving the EU. On the Labour side Corbyn has already announced that a commitment to maintaining the UK’s access to the single market is the price for Labour’s support for the Activation of Article 50. (This after saying on 24 June that it should be triggered immediately!) In addition, a senior Labour MP (Hilary Benn, a remainer) is chairing the Select Committee for Exiting the EU. Although he has said he will not try to block the activation of Article 50, he will still have a good deal of power to influence matters.
Most of the rest of the Commons is also opposed to leaving the EU. The LibDems have said that their manifesto at the next election will contain a promise to rejoin the EU if the UK has already left before the election. The SNP and the Welsh Nationalists are both intent on either the UK remaining in the EU or having some form of special arrangement for Scotland and Wales to remain in the EU, or some other close relationship.
But the Supreme Court case is not the only attempt using the law to delay and confuse the move towards Brexit. The Crown Prosecution Service stands poised to enter the Brexit fray, viz:
“Alison Saunders, the director of public prosecutions, is considering a complaint of “undue influence” on the referendum by the Vote Leave and Leave.EU campaigns.‘The complaint centres around a claim that £350 million per week could be spent on the NHS if Britain left the EU and a leaflet which read “Turkey is joining the EU”, along with assertions that “Britain has no border controls whilst in the EU”.
It is truly extraordinary that those with power within our justice system are so pantingly anxious to get themselves involved. This complaint was not made by the police as is the normal way for a prosecution to be laid before the CPS, but directly to Steadman who made the decision to consider the complaint on her own authority.
There are the irritatingly predictable suggestions from the media that “Theresa May will call a general election”. This is no longer in her power. The Fixed Term Parliaments Act schedules the next election for 2020. Unless May would be willing to make something a vote of no confidence in her government and contrive to lose the vote, an earlier election would require two thirds of the House of Commons to vote for it. That is 417 members out of 650. The Government would need all its MPs plus another 90 or so from other parties to vote for a dissolution of Parliament, something very unlikely because the Labour Party is in disarray and the SNP would gain nothing by having another election. There would also probably be quite a few Tory MPs who would be reluctant to risk losing their seats with only 18 months of the Parliament gone.
What does this solid mass of resentful remainers mean for UKIP and, indeed, every person who voted to leave on 23rd June? It means that the government must be harried all the way till the time Brexit is achieved in fact as well as name. It means that opposition parties must be left in no doubt that if they attempt to thwart Brexit this will have dire electoral consequences for them. It means that every individual MP with a constituency which voted to leave should tremble in their boots at the thought that if they attempt to delay the activation of Article 50 their constituents will eject them at the next General Election.