BY JAMIE FOSTER
The question has been raised by a legal challenge as to whether, following the referendum on June 23, it should be the government or parliament that decides whether to trigger Article 50 and formally inform the EU of our intention to leave. Before I suggest a way of considering this issue I must renounce any claim to any sort of ‘expertise’ on the matter. I can only offer my view, based I hope on logic and reasoned analysis. I claim no authority. My intention is to promote discussion, not to determine the issue or demand that you accept my view as anything more than the opinion of one man who has given this question some thought.
The referendum campaign opened a box that I don’t believe can ever be shut, despite the desperate attempts of those who held the balance of power before the vote took place. It signalled a new and potentially superior relationship between those who govern, legislate and judge; and those who are governed and subject to the law. The idea of a silent mass whose voice is reduced to a cross on a ballot paper once every five years is now a relic of history. Like it or not we have begun to reinvent the forum. In order to persuade, our politicians and judges will now need to engage. In my humble opinion this can only be a good thing.
This new openness forces us to consider the basis of our constitutional settlement. In brief we were once ruled by monarchs, the source of whose power was considered divine. That power has, over time, been ceded to a government, a parliament and a judiciary that wields power with the consent of those who are governed and judged. John Locke, in his Second Treatise on Government, published in 1688, expressed this transition to government for the people by the people far more eloquently than I could. His view helped to shape the US constitution with its focus on the liberty of the subject. For the Americans it was easy to find a moment to describe a new constitutional settlement because they had fought a war in order to achieve one. For us a similar transition took place without such an obvious moment arising in which to recognise it.
The reason that I say this is that, if parliament is sovereign, there are really only three ways in which it can be. The first is essentially the historical theocratic model in which the power to rule derives directly from God. I do not believe there is anyone who currently argues that the UK government is there by the grace of god. The second, democratic model, posited by Locke, is government by consent. The electorate agree that laws must be made, spending decisions arrived at and rules enforced. The electorate therefore consents that the power to do these things is vested in a government, a parliament and a judiciary. The source of that power is the people. A constitutional settlement arrived at under this model determines what powers have been delegated by the people and guards the extent of those powers. The third model can best be described as tyranny. Under this model the government, parliament and the judiciary, those who wield power, decide how much power they should have and over which areas of life. Regardless of whether or not the electorate are allowed to vote under this model. the result is not democratic, nor can it ever be.
As a result, whether or not we have admitted it openly, I believe that here, as in the US, our government wields power at the behest of the people. Our constitution is based on a fundamental safeguard provided by the separation of the historic power of kings into three branches. The Government, as the executive, has the sole responsibility for executive action. Parliament, as a legislator, drafts laws and holds the government to account. The Judiciary interprets the laws that have been enacted. It is an accepted principle that the independence of each of these three branches must be jealously guarded.
This leads us to the constitutional problem that our membership of the EU threw up and which Brexit must resolve. There is much debate over how much power our government gave away to the EU, but no sane commentator argues that none was given away at all. If you take the time to read Lord Pannick’s argument in the Art 50 case (which can be found here it is clear that those who wish parliament to make the decision accept that power was surrendered to the EU on joining. The fact that the EU was entitled, by dint of our membership, to make some of our laws and our spending decisions makes it impossible to argue that some of the power that had previously vested in parliament had not been given away. Herein lies the problem. The principle of parliamentary sovereignty is based on a particular set of powers which the people agree are vested in the three branches of government. Those powers entitle parliament, the executive (confusingly referred to as the Government) and the judiciary to operate. Think of them as a job description for three powerful employees with a great deal of autonomy. The employees can do anything that the job description allows them to, except change the job description without reference to their employer.
This is exactly what happened when we first joined the common market. Our employees, in the form of the government of the day and parliament chose to change the nature of their job description, by giving away some of the powers and duties that we had entrusted to them, without asking us if it was ok. They essentially acted as if the responsibility that we had given them for managing our property entitled them to give it to someone else. I do not believe it did. Our employee, the judiciary, stood by in silence while our other two employees took this decision.
The referendum that followed a decision to join the Common Market was not in any way a government consulting the people on a fundamental change to the constitutional settlement. It was an employee who had given away the cow for a handful of magic beans asking for an ex post facto acceptance that we all now wanted beanstalks.
Difficult though referendums are, it is impossible to conceive of another system for ensuring that changes to the constitutional settlement avoid the tyranny of a government deciding on the extent of its powers to govern or a legislature deciding the extent of its powers to legislate. In June a proper question was put to the UK electorate. “Do you want the powers back that you lent us and we gave away?”A resounding answer was forthcoming.
Article 50 provides a mechanism for dealing with a decision made by a member state to leave the EU. It mandates any state that has made that decision to inform the EU, following which the EU will take steps to disapply the treaties that form the basis of the EU constitution to the member state that is leaving. There is a timetable for negotiations to mitigate any difficulties that may arise from leaving, but in essence that is all that Article 50 does. It forces us to tell the EU we wish to leave and provides the mechanism by which they kick us out.
Lord Pannick has eloquently argued that the process of leaving would remove certain rights granted to the British people by dint of our membership which parliament consented to the EU creating. He therefore argues that only parliament should be able to take those rights away. I respectfully disagree. Parliament cannot take away these rights. Only the EU can by kicking us out having been informed that we wish to leave. More fundamentally than this, however, it is my view that the Supreme Court, in deciding this issue, should recognise that the effect of leaving the EU will be a change to the extent of constitutional power wielded by government, parliament and the judiciary. As a result the decision must be one for the people, who determine the extent of the power we are willing to allow these three branches of government to wield on our behalf. Theresa May should be the person to trigger Art 50, not because she has decided that it should be triggered, but because we the people have decided to leave. Following that her government should negotiate a new trading relationship with the EU as they would negotiate a new trading relationship with any other country. Parliament should be allowed to vote to either accept her negotiated deal or to prefer that trade continues according to WTO rules, as they would in any trade negotiation.
The real opportunity that flows from leaving our formal membership of the EU and its institutions is that it allows us to renegotiate any part of our relationship with the EU whenever we feel it is sub optimal or simply not fit for purpose at any time. It is the opposite of the situation that we were faced with as members, where that relationship was set in stone, unreformable and insulated from change. Ultimately I believe it will be good for both us and them. We must first hold hard to the principles that have formed our democracy and then use the freedom that those principles afford to forge a new future together. I would be very interested to hear what you think.