The legal battle over whether Article 50 should be triggered by the Prime Minister wielding the Royal Prerogative (as the Government wants), or by an Act of Parliament (as the Remainer litigants contend is necessary) is proving to be a much tougher fight than many had predicted. The Government won a victory in Northern Ireland last week when the High Court ruled in its favour. Mr Justice Maguire ruled that Article 50 Notification would not breach the Good Friday Agreement. He tactfully declined to express any opinion on the English litigation which raises different issues. It is by no means certain that it will go the same way,
The Lord Chief Justice and his two colleagues will deliver judgment shortly, although it is virtually certain that the case will then go to the Supreme Court which has pencilled in a date in December. The outcome is unpredictable, and there is even talk that the case could be referred to the European Court of Justice to answer the potentially critical question of whether notification given under Article 50 is revocable. Although the demeanour of the judges has given little away, there is a feeling amongst some lawyers that a Government defeat is a real possibility.
At the same time the mood amongst the Brexiteers appears to be hardening. The sunny magnanimity shown by people like Daniel Hannan in the immediate aftermath of their referendum victory has been washed away in the autumn rain. The litigants are “remoaners,” they are “arrogant” and are trying to win through the courts what they have lost at the ballot box, and the Government’s duty now is to invoke Article 50 by the end of March and get on with leaving the EU. The court proceedings are at best a tiresome nuisance. At worst they are a threat to democracy itself. Such sentiments appear to be shared by the bulk of the Conservative Party. But are they right? Have the Brexiteer-dominated Conservatives, perhaps somewhat giddy with their own success, misunderstood the conservative principles that should guide their actions?
Most conservatives should in fact welcome the fact that the Parliamentarians have brought the question before the courts.
Conservatives should have a deep respect for the institution of the law. Radicals and Socialists may complain that it is but an instrument of the ruling class and so not worthy of respect: conservatives disagree. To a conservative, the rule of law is the first essential of a functioning civil society. Obviously, contracts must be honoured, wrongs righted and those accused of crimes acquitted and convicted; but above all the complex and mysterious mechanism of the British constitution, with its origins in the common law and a thousand years of history, must be respected. It is the foundation for our government and the ultimate guarantee of our whole way of life.
Unfortunately that constitution is not codified. and exists across a vast jumble of statutes, case-law, conventions and academic treatises. It has now become almost an article of faith amongst many senior Conservatives that to invite the courts to rule on this particular complex issue of constitutional law is to invite them to “overturn” the referendum result, and that to do so is therefore in some way disreputable. That is wrong. The referendum has pitched us into unprecedented constitutional territory and it is all but impossible for anyone except the judges to say what the law will allow to happen next. Conservatives should be happy for the judges to be involved and confident that they will reach the correct decision.
Secondly, all true conservatives should have a deep scepticism about any change. Of course that does not mean they should always oppose it, or that they should not campaign to leave the European Union, but they should tend towards pessimism; when the future is uncertain there much to be said for caution and considerable danger in hastiness. If, regrettably, there has to be change, it should be carefully thought through, and it should occur as slowly as possible. At every stage there should be an opportunity for hotheads to reconsider and for compromises to be sought. There is nothing conservative about a reckless plunge into the unknown. A degree of indecision is laudable. Pragmatism is a virtue. These are all considerations which militate in favour of a lengthy Parliamentary debate, and against the flamboyant Royal notification of Article 50 that many now seem to crave.
Enthusiasm for this use of the Prerogative to bypass Parliament is particularly ironic coming from David Davis, Secretary of State for Exiting the European Union. In 1999 he introduced the Parliamentary Control of the Executive Bill which, had it been passed, would have made it clear beyond any doubt that Parliamentary approval was required before invoking the provisions of any treaty, including Article 50. As the Defendant in the current litigation he is now in the uncomfortable position of having to argue that his previous opposition to the use of the Prerogative in this way was a mistake. But it wasn’t; he was right then and he is wrong now.
Thirdly, most Conservatives take great pride in the fact that their party governs for all the country, not just for a section of it. The referendum indicated a starkly and very nearly evenly divided country. Two out of the four constituent nations of the United Kingdom voted to remain. Conservatives, and especially those of a “One Nation” hue, should avoid triumphalism and seek to find arrangements that can unite the country, and that can accommodate the very different views of the people of Scotland and Northern Ireland. Quite how such an accommodation can be reached is unclear but the passage of time may help; certainly a headlong English-dominated charge towards a Hard Brexit will make it much more difficult. There is no need for such haste: to a conservative doing nothing is always an option, and very often the best option, especially when the future of the United Kingdom is at stake.
Fourthly, most conservatives value the sovereignty of Parliament very highly. As the greatest living Conservative philosopher Sir Roger Scruton put it in his 2014 essay What do Conservatives Believe :
“The nation state requires the sovereignty of Parliament.”
“Take back control” was the slogan that won the referendum. Most people, and certainly most conservatives, surely thought that meant the British Parliament taking back the sovereignty that it had delegated to Brussels.
How peculiar then, that a Conservative government is determined to invoke Article 50, thereby setting in motion – probably irreversibly – a monumental constitutional change, without any meaningful reference to Parliament at all. Fine words about the importance of Parliamentary sovereignty ring somewhat hollow when practically the only thing that is clear about the Government’s Brexit strategy is that it wants to reduce the involvement of Parliament to an absolute minimum.
“I and many others did not exercise our vote in the referendum so as to restore the sovereignty of this parliament only to see what we regarded as the tyranny of the European Union replaced by that of a government that apparently wishes to ignore the views of the house on the most important issue facing the nation.”
It will not do, as Mr Phillips realises but many of his more senior colleagues do not, for Conservatives to invoke the alien concept of a “people’s sovereignty” that trumps Parliamentary Sovereignty.
There is no such concept in British constitutional law, which – from a conservative point of view – is just as well. A referendum cannot “mandate” an MP to do anything, and it is a profoundly un-Conservative idea that it should do so. The orthodox Tory view of an MP’s duty is the Burkean one that he betrays rather than serves his constituents if he substitutes their opinions for his own judgement.
Sir Roger has a more subtle argument, which tries to reconcile the conservative idea of Parliamentary Sovereignty with the argument that the Prime Minister alone should invoke the notification:
The referendum on Brexit was not simply a way of by-passing Parliament. It was Parliament itself that agreed to it and the government that proposed it. And it was proposed not as a sondage, a way of finding out about the feelings of the people, but as a delegated decision. Parliament said: ‘we have considered this matter, and recognize that it is for the people to decide. And we will be bound by your decision.’
The difficulty with this is that it is simply not true. I wouldn’t necessarily use Sir Roger’s word “sondage” but the referendum was much closer to “a way of finding out the feelings of the people” than it was to a delegated decision. Parliament often delegates decisions, whether to Ministers, local authorities or indeed the EU. It certainly could have delegated the decision to the electorate by including a section in the Referendum Act to the effect that in the event of a leave vote the Prime Minister “shall give notice under Article 50 within 12 months of the referendum.” Something very similar was included in Section 8 of the Parliamentary Voting System and Constituencies Act 2011, the Act that provided for the Referendum on the alternative vote system. The European Union Referendum Act 2015 very pointedly contained no such provision.
The Government, it is true, repeatedly promised that it would abide by the result, but the Government is not Parliament. In any case, when governments promise to do something it is implied that they will only do so it if it is constitutionally possible. Many government promises founder on the rock of Parliamentary Sovereignty.
Certainly there is a convention that MPs will support a government carrying out promises in its manifesto. The 2015 Conservative Manifesto did promise to “honour the result” of the referendum. Awkwardly, at the same time it also said that the Conservative policy was “Yes to the Single Market.” The promises can be reconciled: membership of the Single Market is perfectly possible without membership of the EU. Unfortunately Cabinet ministers such as Liam Fox have made it clear that membership of the Single Market will not be an object of the Brexit negotiations, something that would seem, on the face of it, to be a breach of a clear manifesto promise. If the Government wants to break one of its manifesto commitments there is no constitutional impropriety, and arguably a constitutional duty on Conservative MPs to try to prevent it from doing so. At the very least these are legitimate matters of concern, not resolved in any way by the referendum, on which it is proper for Parliament to have its say.
Finally there is the fear that if the judges decide that Parliament alone has the power to take us out of the EU, the people will not stand for the delay and compromises that this may entail. Sadly, this has the feel of a self-fulfilling prophecy. The more that Conservatives complain about the impropriety of judicial involvement, the more they undermine the very constitution that they cherish so much.
(This article first appeard in the Daily Telegraph on 31st October 2016)