Brexit Diary – one hurdle surmounted, but another gets more awkward

14th March 2017

Yesterday the Bill to enable the Prime Minister to make the Article 50 notification passed both Houses of Parliament.  The parliamentary page for it is here.

The Bill should soon have royal assent, if it has not already.  (Contrary to urban myth, royal assent is not given by the monarch personally, but on their behalf.)

The Bill has not been amended from the version first presented by the government.  In essence, the Bill places the government in the position it was in before the High Court ruled that it would be unlawful for the notification to be made without parliamentary approval.

(My Jack of Kent post yesterday on MPs as ‘delegates’ not ‘representatives’ is here.)

But as that obstacle to Brexit falls away, another very much came into view yesterday – not an obstacle as such to Brexit but to a ‘hard Brexit’.  This, of course, was because of the the speech of the Scottish First Minister.

This can be read here.  The First Minister announced that there will be an independence referendum when the Brexit proposals become clear.

The (intended) effect of this speech is to place UK government policy on a wire.  If the outcome of Brexit is too ‘hard’ then there will be an independence referendum for Scotland which may support independence.

(My piece on the constitutional context of the speech is at the FT.)

The one immediate effect of the speech is that the buzz about an Article 50 notification being sent this week has been quashed – the notification will now be sent by the end of this month.

Brexit continues to be fascinating.

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Are MPs now delegates rather than representatives?


13th March 2017

One of the stock answers which a new Member of Parliament learns is that they are representatives not delegates.

Certain MPs will go further and invoke solemnly the words of Edmund Burke in his famous speech to the electors of Bristol (1774):

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.

There is sense in this approach.

Electors can get rid of MPs at elections.  MPs can in the meantime vote as they wish.  There is thereby a pressure valve between the voters and the matters before a legislature.

If a MP goes against what his or her voters want then a new MP can be elected at the next election.

This valve is a feature of the UK’s “parliamentary democracy”.

And, in turn, “parliamentary democracy” is a principle of the (uncodified) British constitution.

Against this principle is now this relentless and alien doctrine of the referendum mandate.

The 2016 referendum on EU membership was not legally binding: MPs could have legislated for this but chose not to do so.  MPs instead chose for the Brexit referendum to have advisory power.

But it is now being treated by many MPs as having total power: things are being done in the name of the “mandate”.

Today in the House of Commons there were two votes on sensible amendments to the Article 50 notification bill.  These amendments had been inserted by the House of Lords.  But they were voted down by the majority for no good reason.

Perhaps there was a good reason which was not easy to detect.  Perhaps.

But it seems to me that many MPs who vote on Brexit are betraying – instead of serving – their constituents, when they sacrifice their judgment to their constituents.

Maybe this is a good thing.  Maybe “parliamentary democracy” is better circumvented than observed.

That is a matter of opinion.

But is also a matter of principle: either “parliamentary democracy” is taken seriously as a principle or it is not.

And when a MP next reaches in his or her mind for the stock Burkean response to being asked about why they are not voting as their constituents would prefer on a particular issue, they will find the words are empty.

On Brexit, many MPs are voting as – and behaving like – delegates not representatives.

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Brexit Diary: recent news on the “high politics” of Brexit in Westminster and Whitehall

(These Brexit Diary posts collect recent news and commentary.)

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Today’s Brexit diary contains recent news on the “high politics” of Westminster and Whitehall.

Brexit is not inevitable, says former civil service chief, Guardian, 27 August 2016

Few things are inevitable in human affairs, and this was a statement of the obvious by O’Donnell.  This observation, however, was useful as a peg to hang the civil service stories below.

The following two links are also not really news: the government’s long-standing position is that Article 50 can be triggered without a parliamentary vote.  This contention will be tested by the High Court in October, with a likely Supreme COurt hearing in December.

Theresa May will trigger Brexit negotiations without Commons vote Telegraph 27 August 2016

Theresa May ‘acting like Tudor monarch’ by denying MPs a Brexit vote Guardian 28 August 2016

The following links are news.  What is significant is that there is still no settled government position on the shape of Brexit.  There can be no surprise that in the absence of such a policy, splits are emerging.

Theresa May calls Brexit meeting amid reports of single market split Guardian, 28 August 2016

Chancellor blamed as cabinet splits over single market Sunday Times, 28 August 2016

The prime minister tells civil servants to “get on” with implementing a policy which does not exist yet:

Theresa May tells pro-EU civil servants to get on with the job of delivering Brexit Telegraph 28 August 2016

The prime minister also tells her cabinet to come up with a Brexit policy:

Theresa May, the Brexit enforcer, orders her Cabinet ministers to come up with blueprint for EU exit Telegraph 28 August 2016

And already the civil service (on whom the success of Brexit will depend) are being attacked for not implementing a policy which does not exist yet:

Whitehall must not try to block Brexit Telegraph, 28 August 2016

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The problems with referendums in general, and the Brexit one in particular

17th June 2016

 

There are two problems with the current EU referendum.

 

Why this referendum was a bad idea

The first problem comes from there never having been a need – in an objective sense – for this EU referendum.

By “objective” I mean that there was no external reason – such as a new EU treaty or similar proposal – for a referendum to take place in June 2016.

As such, it can be described an objectively pointless referendum.

(The practical reason for this objective was, of course, political: it was a quick fix by the prime minister to a political problem caused by his own party and the (then) rise of UKIP.  And in launching this needless and divisive referendum campaign as a quick political fix, David Cameron showed all the political judgement of Cersei Lannister.)

This referendum is also not legally binding.  It is advisory.  There is no legal obligation on the government to do anything in response.  The all-important notification under Article 50 is in the gift of the government, and the government can make that notification at a time of its choosing, or never at all.

It is therefore an objectively pointless referendum with no direct legal consequences.  Twice as pointless, in a way, if a thing can logically be as twice as pointless.

And so, as the referendum was about no proposal in particular, the campaigns became about everything and nothing.   There was never any real focus.   And without focus, the campaigns became strident and unpleasant.

This leads us, like Prufrock, to an overwhelming question.

This is a referendum without any objective reason or focus, such as a new EU treaty or other proposal.

It is not legally binding.

So: why?

 

Why referendums are generally a bad idea

The second problem is about referendums in general.

When you have a parliamentary system, you either take the parliamentary system seriously or you don’t.

And having referendums means you are not taking a parliamentary system seriously.

And if the supposed reason for the referendum is to protect parliamentary democracy, this does not even make any sense.  You cannot sensibly protect parliamentary democracy by the extra-parliamentary means of a referendum.  It is an absurdity, if you think about it.

Referendums are rare in UK political history. Before 1975, there had been none at all.

Issues as fundamental as making war and peace, decolonisation, the welfare state, the abolition of capital punishment, the legalization of homosexuality – huge issues, time after time – were all dealt with without a referendum.

Even fundamental constitutional issues before 1975 were dealt with without referendums – such as royal abdications, measures limiting the powers of the Crown and the Lords, and all the extensions of the franchise.

There is, of course, one good counter-argument: see Scotland and devolution, and the Good Friday Agreement.  The referendums on these certainly dealt with fundamental constitutional issues – but, unlike this EU referendum – there were concrete, discrete proposals put before the voters to vote on.

 

Not again?

Let’s not have a referendum again, on anything, unless (a) it is a fundamental constitutional issue and (b) there is an actual proposal for fundamental change for people to consider and to vote on.

Ongoing UK membership after 40-odd years of one international organization when there is not any proposed significant change in the offing does not meet these criteria. (A vote on the Maastricht or Lisbon treaties may have done, but certainly not this June 2016 one.)

A referendum should never be a casual fix to a party political problem.

So here’s a radical suggestion: let’s return to being a parliamentary democracy.

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Five things about David Cameron and sovereignty

9th March 2016

Here are five things to remember when you hear the Prime Minister praise the “sovereignty of parliament”.

First, ministers and officials are encouraged to use statutory instruments as much as possible, which do not get proper parliamentary scrutiny.

Second, the government has sought to cut the “Short money” which funds the scrutiny work of opposition parties in parliament.

Third, the government is seeking to push through the Investigatory Powers Bill through parliament at speed, just as it did with the Data Retention and Investigatory Powers Act.

Fourth, when the House of Lords (sensibly) rejected cuts to certain benefits (which were later dropped), Cameron sought to limit the power of the Lords.

Fifth, when the Speaker of the House of Commons was seen as too independent, the (then Coalition) government under Cameron attempted (and failed) to get the Speaker sacked.

Take together the increasing use of secondary legislation, the attempts to cut Short money, the rushing of primary legislation, the attempt to limit the Lords, and the plans to eject the Speaker – and the evidence does not show that Cameron and his government have any sincere respect for the sovereignty of parliament.

In fact, the evidence contradicts the notion that Cameron and his government believe in the rights and prerogatives of the legislature.

And this is without the ongoing tendency for major announcements to be leaked to the press, or to be revealed on chat shows, rather than on the floor of the Commons.

In essence, it is not the sovereignty of parliament which is being claimed by Cameron and his ministers, but the sovereignty of the government once it has a Commons majority; what a former Conservative Lord Chancellor called an “elective dictatorship“.

The rhetoric may be about the sovereighty of parliament, but the practice of the current government (as with previous governments) is to undermine parliament in as many ways as possible.

It is not Brussels which is the greatest enemy of the Westminster parliament but Whitehall.

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