The big lie of the Brexit Bill

Theresa May has, belatedly, agreed that Parliament will have an opportunity to vote to accept the eventual Brexit deal that David Davis manages to strike with the Commission (assuming he does indeed manage to strike a deal, which is still entirely uncertain).

However, as you may have inferred from my careful phrasing, the proposal appears to impose a strict limit on Parliament’s options. May’s position appears to be that, if Parliament votes to reject that deal, the government will make no attempt to negotiate an alternative, but will simply allow the Article 50 countdown to expire, ejecting the UK from the EU by default. We should object to this approach on several grounds:

  1. In simply declining even to seek an alternative deal, the government is abdicating its responsibility to protect the electorate’s interests to the best of its ability;
  2. In threatening not to seek an alternative, the government is choosing to present parliament with an arbitrarily constrained choice which amounts to blackmail;
  3. In leaving open the possibility that the vote might not even be held until it is too late, practically, to negotiate an alternative, the government is showing the same procrastination and dilatory mismanagement which has characterised its time-wasting approach since the referendum. That’s not a sane way to justify leaving the EU.

There is also a democratic deficit, here, in offering Parliament the choice between “bad deal” and “no deal”, when those are not the only two viable or rational options. Clearly, the choice should include “no Brexit”… so why isn’t this being offered?

Part of the issue goes back to the referendum itself, which, as a House of Commons research report amply explained, was not binding on the government. Here’s part of the text (my emphasis).

“This Bill requires a referendum to be held on the question of the UK’s continued membership of the European Union (EU) before the end of 2017. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution.”

“Ah”, say the pro-Leave lobby, “but David Cameron said he would implement the result of the referendum, so we must leave”. Oh, well, if a politician said something in the run-up to a vote, that’s a cast-iron constitutional guarantee, isn’t it?

No. To give David Cameron’s promise equal weight to the constitutional force of the referendum is a gross misinterpretation. It fails to distinguish between a political commitment and a legal or constitutional one. Cameron simply had no authority to behave as though the referendum result was something it was not – particularly in view of the fact that he bailed out rather than take responsibility for his actions.

So, legally and constitutionally, the government was perfectly entitled to regard the referendum result as a piece of input which could influence, but need not over-ride, what it thought it should do in the interests of the country, given all the policy options at its disposal (of which, of course, burning bridges with the EU was only one).

For the government to treat the referendum as its sole and binding option was misguided. To deny Parliament a full and genuine choice between “bad deal” and “no Brexit” is not just misguided, it is undemocratic. “Leave” campaigners made a lot of noise about parliamentary sovereignty – let’s see them put their democratic money where their demagogue mouths are.