Brexit: The Constitutional Problem

There is a great deal of misleading discussion across the media and, indeed by MPs and government ministers, about the constitutional failure of the government and of parliament.

The May-led government has undoubtedly made catastrophic misjudgements in its desire to hold together an almost irretrievably fractured Conservative party in attempting (and so far failing) to find an acceptable form of Brexit. The problem of securing a parliamentary majority for ‘May’s deal’, a conflation of the Withdrawal Agreement (WA) and the Political Declaration (PD), appeared to be made more difficult by this conflation. However, separating the two (both of which have to be approved by parliament) and having a third vote solely on the WA also failed.

The government line (echoed across the media) is that MPs are only able to articulate what they are against and their intransigence has made agreement on the government’s form of Brexit (whatever that is in terms of the future) impossible. This week may indicate a possible coalescence around a customs union type/soft Brexit. However, even if this is managed by MPs, voting with and across party divides, it is impossible for this to be enacted, without government approval (which will not happen) by the April 12th deadline, and in any case leaves passing the legal WA still highly improbable.

However, MPs cannot simply blame the government. Every MP has accepted the position, implicitly by voting for invoking Article 50 and supporting an attempt to implement some form of Brexit by the two major parties, manifestos in the 2017 general election. Many MPs, also suggest, mistakenly in view of their role as representatives, that they must vote in line with the majority view of their representatives (though presumably this position is constrained by their party policies). Moreover, the suggestion from the vast majority of MPs is that they must follow the narrow majority view of the public as expressed in the 2016 advisory referendum. It is here where the underlying constitutional problem arises. It should e recalled that the UK Supreme Court clarified that it was for parliament to decide what is the ‘will of the people’.

The UK constitution (uncodified though it is) rests on the rock of representative parliamentary sovereignty, unless it is voluntarily transferred to the people by parliament. Despite claims to the contrary by government ministers and MPs this was not done in 2016. The 2016 referendum was advisory only (as indeed was the 1975 referendum).

The constitutional problem is hence the direct clash between the purported direct democracy engendered by the referendum and the continuing representative democracy of parliament. In constitutional terms there is no possibility of departing from the position that the decision how, or indeed whether or not, e.g. via revoking article 50, to proceed with Brexit, unless we change our constitution in this respect.

It will be argued that though that is the case, there is a political communications problem for the UK political class to persuade the UK public that going down the route of a de facto plebiscitary democracy lies the potential for dictatorship. One way of resolving the political problem would be to revoke Article 50, to be followed by citizens’ juries/assemblies to be held in every UK constituency.

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