The battle continues: Brexit, the UK constitution and the Labour Party
The European Union (Notification of Withdrawal) Bill has passed through the House of Commons unamended. Barring any highly unlikely maneouvres in the House of Lords, the Bill will be enacted and the now famous Article 50 notice letter sent by Theresa May to the European Council ahead of the stated 31 March deadline. It is worthwhile pausing for breath for a moment away from the constant treadmill of the news cycle to look at where we are, both legally and politically, and the situation facing the Labour Party in particular.
The Supreme Court ruling and its aftermath
We should start by remembering that it took a legal challenge by several groups of concerned citizens, the businesswoman Gina Miller most prominent among them, for the Government to accept that an Act of Parliament was required to authorise notification to leave the EU under Article 50. This Act will, in many ways, be highly unusual. Looking back at the legal arguments of the judgment helps to clarify the background to the current political situation.
In short, the Supreme Court judgment of 24 January said that on a matter of such constitutional significance, leaving the European Union, power lies in the hands of Parliament. In essence, it upheld the centuries-old doctrine of Parliamentary supremacy, one that advocates of Brexit argued had been slowly but surely shackled by EU membership and jurisdiction of the ECJ. The irony of some of these Brexit supporters criticising the judgment that upheld the same principle they invoked during the referendum campaign was not lost at the time.
The judgment however managed to reconcile what I think remains something of a paradox. The core issue that gave rise to the case, namely the authorisation to give notice under Article 50(2) TEU, is in itself a specific and preliminary event. But the claimant’s case for why this authorisation could only be granted by Parliament, and a common assumption of both parties during the proceedings, was that this event would inexorably lead to the much wider outcome of the UK leaving the EU and the related loss of rights by UK citizens derived from the body of EU law. This was the rationale methodically laid out in the Supreme Court judgment itself.
So on the specific question before the court, the authorisation to give notice under Article 50, the judgment raised problems for Parliament along with opportunities. It ruled that Parliament must pass an Act authorising the Government to give notice under Article 50. But the justification for this requirement implied that such authorisation contains within it the authorisation to conclude an agreement on withdrawal from the EU and also potentially on a future trading relationship, or to withdraw without any agreement. Parliament was thus required to authorise something very narrow and yet very wide at the same time.
The Bill and the Labour Party position
The Bill that was presented to, debated and voted on by the House of Commons over the past few weeks covered, in words, a matter very specific and in effect, a course of action much more profound. Crucially however the Bill authorises this course of action, it does not mandate it or set it in stone. The curious nature of Parliamentary supremacy is that whatever Act Parliament passes can be repealed by a future Act. The UK Parliament is, in this way, both a legislative and permanently constitutive body.
Those who voted against the Bill on the grounds that they objected to the Government’s plans for the destination it seeks at the end of the negotiation process were, quite reasonably, countered with the point that all this Bill does is give authorisation for the Prime Minister to begin the process. To begin this process was mandated by the British people in the referendum last year, however disappointed and distraught many who voted remain (including myself) were by this outcome.
Against this context, the Labour Party took the view that it should not block this Bill, seek to amend it in numerous ways, but ultimately vote in favour of it. Of course quite a sizeable number of MPs defied this ‘whip’ from their leader Jeremy Corbyn. The majority, but not all, of these MPs justified this based on the majority Remain vote within their constituencies. This decision was no doubt made easier given the whip came from a party leader many MPs sought to depose after the referendum, and who himself defied the Labour whip countless times as backbencher. Had a more centrist candidate won the September 2015 leadership election and their Labour Party faced the same situation, I would suggest the calculation of many of these MPs may have been different. And in the current climate, I cannot honestly imagine that an alternative leader, say Andy Burnham as an example, would have taken a drastically different line.
But this is the situation we find ourselves in. Following the vote, Corbyn tweeted that the ‘real fight starts now.’ The derision of this comment was widespread, and swiftly compiled by the Guardian.
I would suggest the choice of words was not the right one, and given Corbyn’s history on Brexit, fuels further criticism of his leadership. But given what was legally required in the Bill as a result of the Supreme Court judgment, it is hard to see how, in the end on the final vote, Labour could have acted differently. Had it voted against the Bill it would have been seen as blocking the will of the public in the referendum, and given that 70% of Labour constituencies voted Leave this option was seen as politically impossible. For the Liberal Democrats, SNP and Caroline Lucas to vote against the Bill was rather easier, knowing that their vote would not affect the overall outcome. Labour as an aspiring party of government had to act differently. Whether the reason for Corbyn’s approach was the need to take his responsibilities as leader of the official opposition seriously on the biggest current issue facing the country may be debated, but this was the approach pursued. The time to criticise Corbyn was in his lacklustre effort in the referendum campaign, rather than during the Bill put before the Commons as a result.
The consequences of the Bill and the battle ahead
As and when the Bill is enacted, as a matter of law, the Government has the authority to conclude a withdrawal agreement with the EU and, depending on the process of negotiations, a future trading relationship. The corollary is that as a matter of UK law (separate from the EU law question of revocability of Article 50) it may also decide to withdraw the notice and remain in the EU. The Bill confers powers on the Prime Minister to notify. The essential sentence under s1(1) reads “The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU” [emphasis added]. The current Bill does not instruct the Government to continue down a certain path no matter what, but merely begin a process which results in a number of permitted outcomes. This is where constitutional law ends and pure politics begins. Whether Brexit does indeed happen, and if so how, remains in the hands of Parliament.
For those seeking to keep a range of options open as the real Brexit process gets underway, the broader argument of the Supreme Court judgment must be evoked. That is that on this most fundamentally important issue, Parliament remains in control. And therefore the role of the opposition in Parliament must surely be to make its arguments and its case on how this process will be conducted, what will come out at the end, and what is both in the interests of the British people and the right thing do once the alternatives become clearer.
The doctrine of Parliamentary supremacy is both all-encompassing and all-flexible. It is up to this Parliament, and whatever new Parliament emerges after the next General Election to decide on the course of action. After all the UK Parliament, our elected representatives, are, whether they wanted to in this manner on this issue or not, taking back control. They should seize this opportunity with both hands.
When the reality of the negotiation process starts to bite and the genuine (not mythical) alternatives of EU membership for the UK begin to emerge, it may be that public opinion shifts. If the deal negotiated is put to a vote in the House of Commons as promised and is rejected, it is hard to see how Theresa May could continue as Prime Minister. In this scenario, the case for a General Election would be overwhelming. Labour must be at the frontline of the debate on the implications for the UK of Brexit, how Labour principles can be fought for in the outcome and what will emerge afterwards. The battle continues.
The next article will look at the general principles Labour, and all progressives, should argue for as the negotiations get underway
