Friday, 19 October 2018
Is Trying to Deny Parliament a Meaningful Brexit Vote Taking Back Control?
The government is trying to bar amendments being tabled by MPs to whatever deal is struck on Brexit with the European Union (EU). MPs managed to amend the Brexit Bill to allow a ‘meaningful vote’ on the result of the negotiations, but the government seems to think that meaningful is a take it or leave it vote. The implication being that if the government loses the vote, then the default position will be to have no deal at all.
This was first revealed by Dominic Raab, the Brexit Secretary, saying that amendments will not be allowed because amending it could prevent it from being ratified. He wrote to the Commons’ procedure committee hoping to secure its endorsement of this position, but Labour party members of the committee managed to convince the committee to seek opinions from independent constitutional experts, on whether this would be unconstitutional.
I think it would be unconstitutional and I can’t really see how the government can get its way on this. This was perhaps reflected when Leader of the House, Andrea Leadsome appeared to be accepting of this when she said yesterday that, the reality before the United Kingdom would ‘amount’ to an either/or choice on May’s deal, even if the Commons were to debate possible amendments.
It is just about possible that the government will try to use the ‘Royal Prerogative’ which is part of the British constitution, and used for mainly foreign affairs matters, like deploying the armed forces and making or unmaking international treaties. Basically, the government can use this prerogative to sideline Parliament. Although, with MPs specifically previously amending the legislation to have a proper say, it is debatable whether or not the government could bar them now.
The government used the prerogative to trigger Article 50 of the EU’s Lisbon Treaty, when notice was given to the EU of the UK intention to leave the bloc. Use of the prerogative remains subject to the common law duties of fairness and reason though. It is therefore possible to challenge use of the prerogative by judicial review in most cases. This is what Gina Miller did when she took the government to court, and won.
All of which leads me to think that this route will not be attempted by the government over the final Brexit deal. Some Pro-EU MPs are considering an amendment to the approval motion to authorise a second referendum, whilst hard Brexit MPs are thinking about an amendment to limit the timescale of any transition period. This is all normal constitutional and Parliamentary behaviour, if rather inconvenient to government, but it is 'taking back control' in action.
Whatever Brexiters say about upholding ‘the will of the people,’ constitutionally, the people are not ‘sovereign.’ Indeed, the referendum itself was only advisory, as all referendums are under the British constitution. Apart from where we have pooled our sovereignty with the EU, technically the Monarch is sovereign, but in practice sovereignty in the UK is held by Parliament, not ‘the people.’ You might disagree with this, but it is true all the same.
The rather vague but effective slogan of ‘taking back control’ deployed by Brexiters at the referendum, is surely meant to mean ending pooled sovereignty with the EU and returning it entirely to the British Parliament? But the way politics and politicians work, arguments are made on the basis of whatever agenda the politicians are pursuing at the time. MPs by and large know what our constitution consists of, even if it can be vague at times and is infamously ‘unwritten,’ or least not all written down in one place.
Parliament is of course divided over Brexit, and shows no signs of coming to a sensible compromise over the issue. I have argued before that joining the European Economic Area when we leave the EU would be such a sensible compromise, but there doesn’t seem to be enough support in Parliament for this. There is also no support for a no deal Brexit. So, what to do?
The way I see it, we have two options that could move the country on from where we are today. The first, is a general election, where either the government is changed or the complexion of MPs is, one way or another. The second option is to put this back to the people in another referendum, now that all of the implications have become clearer, with the option of whatever deal we are offered, or staying on our current terms. Realistically, a general election, and perhaps a referendum, will require an extension to Article 50 beyond 29 March next year.
The People's Vote March in London tomorrow (Saturday) will demand a final say referendum. Assemble at 12 noon at Park Lane, near Marble Arch, and march to a rally at Parliament Square at 2pm. More details here.