Forget about the online petition. We do not have government by petition, particularly not when we don’t know how many of the online signatories are even British, or are duplicates, or computerised bots or in some other way bogus. No matter how many signatures the petition garners it will not result in a re-run of the referendum, and nor should it.
Forget too about members of the Scottish parliament metaphorically flooding down from the Cheviots, sgian-dubhs flashing in the pale northern sunlight, rushing to save the Sassenach’s from the consequences of their folly. The argument – publicised and explained here by the ever-lucid Jolyon Maugham – is rather complex and explained better by him than by me but essentially it is this:
The Scotland Act 1998 contains a provision that the Scottish Parliament cannot do any act inconsistent with EU law. Under what is still called the Sewel Convention (even though Sewel himself is only slowly recovering his reputation since he was photographed wearing an orange bra and snorting cocaine in the company of a prostitute) and is now S.28 (8) of the 1998 Act:
‘it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.’
Withdrawing from the EU would affect ‘devolved matters, thus any legislation to do so would (normally) require the Scottish Parliament’s consent. First Minister Nicola Sturgeon said in very clear terms that she would encourage it not to give this consent, and indeed it seems inconceivable that Holyrood would do so if asked. Accordingly, runs the argument (if I have grasped it correctly), the UK Parliament could not lawfully pass the legislation that would be necessary for it to leave the EU.
(As a strict matter of law legislation is not needed to ‘leave the EU.’ Britain is a member by virtue of treaties, and making and breaking international treaties is a matter of Royal Prerogative, exercised by the prime minister, not by parliament. On the other hand legislation would be necessary to repeal the European Communities Act 1972, otherwise Britain could conceivably find itself in the bizarre position of being outside the EU yet bound to follow EU law.)
Maugham himself does not think much of the Sewel Convention argument: he points out that S.28 (8) contains the weasel word ‘normally,’ and withdrawal from the EU would be a highly abnormal state of affairs. I am sure he is right, and there there is surely an even more fundamental objection. A cardinal principle of British constitutional law is that a parliament cannot bind its successors. The Sewel Convention, embodied in statute though it now is, is still just a convention. Should the Westminster Parliament decide to pass a statute inconsistent with it, it could certainly do so. At most the legal effect of S.28 (8) might be to create some sort of rebuttable presumption that Westminster does not intend to legislate on devolved matters unless it does so expressly; but of course any Act effecting withdrawal could, and no doubt would, make that intention express. It could, for example, include words such as ‘without prejudice to S.28 (8) of the Scotland Act 1998 ….’ It could even repeal the Sewel Convention.
That said, Holyrood’s refusal to consent to withdrawal legislation might have some political effect. Pro-EU Westminster MPs could perhaps argue that imposing this unwanted legislation on Scotland was constitutionally improper because it ignored the Convention. I suppose that might encourage a few of them to vote against withdrawal, notwithstanding the referendum result.
Similar arguments apply to Northern Ireland which also voted to Remain. There might even be constitutional arguments for saying that, in the absence of consent from the Northern Ireland Assembly, Westminster ought not to impose withdrawal on the province. Ultimately, however, there is no doubt whatever (in my mind at any rate) that it has the power to do so.
So neither Scotland nor Northern Ireland will, on their own, be able to keep Britain in the EU if the UK Government decides to leave.
A completely different, and much more powerful argument has been advanced by David Lammy, the Labour MP for Tottenham. He points out, as have many others including the doyen of legal bloggers David Allen Green, that the referendum itself has no legal force. It was advisory only. Ironically, given that Parliamentary sovereignty has featured so prominently in the Leavers’ arguments, he invokes that principle to argue that MPs are under a duty to make up their own minds, and in his case ignore the referendum result:
‘Wake up. We do not have to do this. We can stop this madness and bring this nightmare to an end through a vote in Parliament. Our sovereign Parliament needs to now vote on whether we should exit the EU.’
Of course he is right as far as the constitutional role of an MP is concerned. He or she should listen to the advice of the electorate, but is not obliged to follow that advice. On the other hand, he is unlikely, for the time being, to persuade many MPs to join him in voting against the clearly expressed wishes of the country as a whole.
A more typical line has been that taken by Guy Opperman, the Conservative MP for Hexham.
The people have spoken and we must accept the result. I wanted to remain in the EU, and campaigned hard locally, regionally and nationally on the issue, but fully accept the result. My job is to work day and night to make sure the country comes together, that the government gets on with the business of running the country, and we sort out the business of the renegotiation with the EU.
Referendums have a legitimate place where popular endorsement is sought for a decision that parliament has made. They are far more problematic when they are used as a tool to force parliament to do something that it would not otherwise do.
The difficulty here is that the people have said only that they want to leave the EU. They have not agreed to any particular exit agreement. For this reason Opperman’s line cannot hold very far into the future.
For example, some of the Leavers appear to want a Norwegian style arrangement involving access to the Single Market, accepting (and in some cases even welcoming) the freedom of movement that comes with that. Daniel Hannan, for example, startled many at the weekend when he said that even after Brexit there might be similar numbers of EU immigrants coming to Britain.
For others, getting rid of freedom of movement is the very reason that they voted to Leave. They would certainly accept exclusion from the Single Market as a price worth paying to keep lots of foreigners out.
Boris Johnson this morning tried to reconcile this contradiction. He called for ‘access to the single market’ and a Europe where:
‘British people will still be able to go and work in the EU; to live; to travel; to study; to buy homes and to settle down.’
At the same time, he said, the British Government would
‘take back democratic control of immigration policy, with a balanced and humane points-based system to suit the needs of business and industry.’
In other words Brits would be able to move freely around Europe but Europeans won’t be allowed to move freely around Britain, unless they qualify under his, er, ‘balanced and humane’ (and no doubt also ‘arbitrary and bureaucratic’) immigration system. Good luck with that one, Johnson.
There is no possible Brexit deal that can possibly satisfy both camps, and certainly not Johnson’s fantasy. Their objectives are mutually exclusive.
For this reason many Leavers will feel somewhat aggrieved, and probably betrayed, by any possible leaving agreement. It is at that point that parliamentarians will face a true dilemma. Does an MP like Opperman simply vote in favour of any agreement, no matter how poor he thinks it is and no matter how much he disapproves of it, merely because an advisory referendum a year or two (or four) earlier had narrowly supported the principle of leaving? Does he do so irrespective of the fact that circumstances will have changed, and in the belief that to do so will bring misery to his constituents; does he do so in the knowledge too that it is directly contrary to the wishes of half the countries of the United Kingdom, and that as a result it may well lead to the disintegration of the Kingdom? If he does, it will be an abdication of what he was elected to do: to use his own judgement in order to best further the interests of his constituents and the country as a whole.
The duty of an MP in a Parliamentary Democracy was never better put than by Burke in his speech to the electors of Bristol in 1774:
‘It ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion….
‘To deliver an opinion, is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience, these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution.’
That, of course, is the constitutional principle upon which our parliamentary democracy is based. MPs betray their constituents if they vote against their consciences. For many, that is the crowning glory of the British constitution.
When Johnson, or May or whoever it is, returns from Brussels waving a piece of paper containing what may be a very bad deal for Britain, we shall see then whether we live in a parliamentary democracy. If we do, MPs should vote it down.
On the other hand, if – on what will be perhaps the most important vote of their political lives – MPs feel constrained to keep quiet, to set aside their consciences, their backbones and their self-respect to vote in favour of something they oppose, merely because of the results of a referendum, then we will know that British parliamentary democracy is dead, its throat slashed by a referendum.
It will be scant consolation that the razor responsible will have been an all-British blade, originally unsheathed to defend that very democracy from foreign attack.
Matthew Scott is a barrister at Pump Court Chambers. He blogs at BarristerBlogger and can be found tweeting here.
For more Brexit coverage see:
‘Guest post from Herbert Smith Freehills – Brexit: After the vote’
‘LB’s Brexit take: City law’s globalisation playbook has just been shredded’
