Opposition to Brexit is now often framed, surprisingly, in terms of vindication of parliamentary democracy and the UK’s traditional constitution. The use of a referendum to settle whether the UK should leave the EU is decried, after the fact, as a betrayal of representative democracy (alongside calls for a second referendum to correct the errors of the first). The Supreme Court’s intervention in the Miller case was necessary, so the argument runs, to prevent the executive from ignoring Parliament and violating parliamentary sovereignty. This is a sign of things to come, many say, with the UK’s withdrawal from the EU set to radically empower the executive rather than Parliament. On this view, the EU Treaties are a valuable restraint on an over-mighty executive and it is the duty of Parliament to assert itself and move to block withdrawal from the EU, whether by rejecting any agreement the Government negotiates with the EU or by legislating for a second referendum.
It is welcome, if a little disorienting, to see opponents of Brexit proclaiming their loyalty to parliamentary sovereignty and appealing to Parliament to vindicate their rights. True, these appeals are often strategic and insincere. And insofar as they are sincere they are often confused, misunderstanding how the executive relates to the legislature, how the legislature relates to the people, and how EU membership has distorted these relationships, as well as failing to appreciate the legal dynamics of the UK’s withdrawal from the EU. Parliament has a vital but bounded role to play in securing the UK’s exit from the EU, a role that it has been and is now discharging in accordance with our constitution but which does not entitle it simply to call the whole thing off.
The twin pillars of the Westminster constitution are parliamentary sovereignty and responsible government. Parliament enacts statutes and forms governments, supporting them and holding them to account. The Government frames the legislative agenda and exercises statutory powers and prerogative powers, for which it is accountable to Parliament. Our constitution makes provision for a strong but responsible government, one which has to work at maintaining a parliamentary majority if it is to survive and if it is to be capable of decisive action. Parliament represents the realm, bringing the political community together in a form and forum capable of reasoned deliberation and choice. No institution is its rival but it acts for, and deliberates in conversation with, the people. The case for its sovereignty is precisely that it makes robust national democracy possible.
EU membership has always been an ill fit with this constitutional scheme. The EU is a treaty-based organisation, participation in which empowers governments rather than legislatures, making Parliament ever less central as the focus of self-government. The temptation for successive British governments, as for their counterparts elsewhere in Europe, has been to steal a march on their domestic political opponents by securing at the EU level legal commitments that are thereby immunised from domestic political challenge. This mode of governing is democratically unjustifiable. It is also a risky game, for EU membership exposes member-states to the actions of EU institutions, which have an agenda of their own and are almost impossible to discipline or direct. All this tends to hollow out trust in domestic political institutions, which have surrendered their capacity – their effective freedom – to respond to the concerns of the public.
Whatever its merits, the question of whether the British people consented to participation in the European project was not a minor detail. Parliament was right to enact the EU Referendum Act 2015 and thereby to invite the British people to decide whether the UK should leave the EU. This was a responsible choice, made with overwhelming support from across the Houses of Parliament. The legislation would not have been proposed but for competitive electoral pressure, which prompted the Conservative Party to contest the 2015 general election on a promise to hold a referendum. In a representative democracy this is how public concerns make their way, over time, onto the legislative agenda. Strikingly, when the question of whether to hold a referendum was finally and openly put to Parliament, very few MPs or peers were able in good conscience to oppose it. The case for putting the matter to a popular vote was very strong. And this was consistent with the practice of other mature parliamentary democracies (e.g. Australia, New Zealand), in which the referendum is an intelligent technique to be used from time to time to settle fundamental constitutional questions.
The referendum vote was not self-executing. However, the Government had promised expressly, in the referendum campaign, to give effect to the outcome of the vote. It should have been no surprise then when Government made clear that it would keep its promise and use its prerogative powers to trigger Article 50 of the Lisbon Treaty and put in motion the UK’s withdrawal from the EU. The outraged cry that went up from some lawyers – that triggering Article 50 would be unlawful unless Parliament enacted new legislation – was either confused or, worse, a ploy to delay in the hope of frustrating the UK’s withdrawal from the EU. The Government was right to resist Gina Miller’s challenge in court and the Supreme Court was wrong to uphold it.
The Government was not riding roughshod over Parliament in proposing to honour the referendum vote by using its existing lawful powers – it beggared belief to compare this to the royal abuses that Parliament resisted in the seventeenth century and which provoked the English civil war. The Government remained at all times accountable to Parliament for its plan to trigger Article 50, and the Commons made clear by resolution that it supported the Government’s plan. The merits of withdrawal were canvassed extensively in both Houses. It was open to the Commons to unseat the Government if it concluded that Article 50 ought not to be triggered. The Supreme Court’s ruling did not somehow enable Parliament to control the Government, but it did require the Government to secure the consent of the Lords as well as the Commons, and to do so in a form that was open to amendment. In the end, the Commons decisively supported the Government being free to act and the Lords were not willing to defy MPs or to delay matters by forcing the Parliament Acts to be invoked.
Article 50 having now been triggered, the Treaties will in due course expire, at which point the UK will have left the EU. The Government is seeking an agreement with the EU that will address UK-EU relations after exit day and Parliament is questioning the Government about those negotiations. Select committees are undertaking a multitude of inquiries into the implications of Brexit and Parliament is considering the European Union (Withdrawal) Bill 2017, which will retain much, but not all, EU law after exit day. This is vital legislation, without which there will be legal chaos. It is controversial in part, not least in relation to the lawmaking powers it confers on ministers. There are good reasons for broad powers in this context but it is important that they be subject to close parliamentary scrutiny and indeed the Bill has been amended to make this more likely. The powers in question are time-limited and their purpose is to help ensure a smooth transition on exit day. The Government has undertaken to advance major policy changes only by way of primary legislation and MPs and peers will need to be vigilant to make sure that this reasonable commitment is indeed upheld.
None of this vital parliamentary work concerns whether the UK should stay in the EU. And for good reason: that decision has already been made, by the electorate itself as Parliament intended, and Article 50 has been triggered accordingly, with Parliament’s express support. But might not Parliament still choose to reject the deal the Government negotiates with the EU? Yes, but this strictly has nothing do with whether the UK leaves the EU: the Treaties expire and the UK ceases to be a member-state regardless of whether an agreement is concluded. How then could Parliament stop Brexit, if its members were tempted to defy the referendum and, in the case of Labour and Tory MPs, to betray their manifesto commitments? Parliament cannot legislate to cancel Brexit. Legislation changes domestic law; it cannot change international law, in which the UK is now, but soon will not be, party to the EU Treaties. This would hold even if Parliament enacted legislation requiring a second referendum on the same question as the first and if a majority voted to remain in the EU. Parliament could induce the Government to try to revoke its Article 50 notice. Whether the UK is free to withdraw that notice is unclear, with the EU’s position thus far being that there is no freedom. Perhaps one could negotiate terms on which the UK might call Brexit off, but this would be a negotiation, with the UK’s budget rebate, its opt-outs from various EU schemes, including the Euro, the Schengen Area, and immigration and asylum law, all highly vulnerable to cancellation. In other words, the UK would, in this scenario, be choosing effectively to join the EU on worse terms than when it had chosen to exit.
The UK’s decision to leave the EU was an intelligible choice to restore national parliamentary democracy. That choice was taken in line with and has been implemented consistently with our tradition of parliamentary government. It is encouraging in its own way that attempts to frustrate that choice are taking the form of appeals to Parliament. But while Parliament has had and continues to have a vital role to play in the Brexit process, it no longer legally has the capacity to cancel the UK’s exit from the EU and it would be wrong in any case for it to attempt to do so.
Richard Ekins is Associate Professor in Law at the University of Oxford