One of the more curious aspects of the great British Brexit is that those who seemed so keen on liberating the British constitution form its incarceration in Brussels are also stunningly contemptuous of it when it produces results not to their liking. Presumably, one of the great strengths and glories of the British is their devotion to the rule of law, a principle secured at great cost against assorted tyrants – domestic and foreign – over many centuries. The independence of the judiciary is core to that; its absence implies mob rule.
The Supreme Court, like the High Court before it, has if anything strengthened the rights and privileges of Parliament against those of the crown, whose prerogatives the executive, and in particular the Prime Minister, has inherited. The justices are, to borrow a phrase, “allies of the people”. And yet...
David Davis, the Secretary of State for Exiting the European Union, to give him his full mouthful of a title, accepts the verdict only grudgingly – and continues to defy constitutional convention by refusing to produce a White Paper or adequate Plan for Brexit for the purposes of parliamentary scrutiny. It was demanded, ever so courteously, once again by the chair of the Brexit Select Committee, Hilary Benn, and Mr Davis, once the supreme parliamentary sovereigntist, brushed his concerns aside. According to Mr Davis, Britain passed “the point of no return” with the referendum on 23 June.
This is not a compelling argument. The country did indeed vote to leave the EU, in principle, by a relatively narrow margin. It did not, though, abrogate any right to change its mind about that or, more pertinently, to be consulted and have a voice on the Brexit terms once they are made clear. It was not a vote for exit at any price at all, as was apparent at the time.
Even if it were, no parliament can or should deprive the people of an opportunity on a constitutional question of this magnitude to have a final say. Instead, Theresa May has only proposed a parliamentary vote on which variety of Brexit we shall have; in effect a “Hobson’s Choice” of a vote, with the option of not leaving the EU unreasonably closed off for Parliament and public alike. That is not the democratic way.
That is why the efforts by the Liberal Democrats and others to link the vote approving the activation of Article 50 – which is entirely in line with the democratic wises of the people – to a further vote on the terms of exiting the European Union deserves widespread support. This is not a “Remoaner” argument. There are some who voted Leave last summer and some who voted Remain who have changed their minds; all of them should be allowed the chance to make an informed decision when all the facts about the real Brexit are made clear.
These can never be utterly transparent because we can never know the future; but some semblance of rational choice should be available by 2019, and it is unthinkable that some sort of ultra-hard Brexit takes place without explicit popular consent. It is not what the majority voted for last year. As things stand, both Ukip’s Douglas Carswell and the Liberal Democrats’ Tim Farron could find reasons, from different sides of the debate, to both reject the terms of Brexit in 2019 and vote against the Government’s proposal, but it would not make for a very meaningful parliamentary decision.
As to what will actually happen, much depends on the Labour Party. Sir Keir Starmer, the shadow Brexit Secretary, has struck the right balance between respect for the vote last June and a sensible – and democratically legitimate – insistence on parliamentary scrutiny and decision-making. If he and Jeremy Corbyn were to be able to find it in themselves to support Mr Farron’s reasoned amendment to the proposed legislation on Article 50, they would open the possibility of a real vote on the terms of Brexit taking place when the time is right.
It is something every democrat, whatever their views on Europe, should feel able to support. We do not know what the deal will be. It could be so advantageous that even European enthusiasts would be persuaded to leave the EU on the terms described. Or it could be so ghastly that even the most devoted Eurosceptic would have to think twice about the financial damage. That is what the choice is about. Labour has the opportunity to play a decisive, perhaps historic role. On past form, it will miss it.
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