Mike Gordon: Brexit: The Constitutional Necessity of an Early General Election

In the stunning aftermath of the Brexit referendum, intense debateamong constitutional lawyers has focused on Art 50 TEU, and the domestic legal (or constitutional) requirements for a decision to leave the EU. In this post, I want to step back from this debate – important though it has been, and continues to be – and reflect more directly on the normative underpinnings of these arguments. I want to suggest that when we bring some of these normative ideas to the surface, and consider them head on, a greater priority emerges than establishing (or perhaps manipulating) claims as to the legal authority for triggering the Art 50 withdrawal process. Instead, I will argue that our normative instincts are best channelled towards pressing the constitutional case for an early general election, which is necessary to determine the kind of exit from the EU we ultimately experience in the UK.

Normative Instincts in the Art 50 Debate

The most obvious normative urge underpinning the Art 50 debate to this point has been a desire to see Parliament centrally involved. Arguments as to the necessity of a new Act of Parliament to provide legal authorisation for a decision to exit the EU, whether on the basis of the ultimate effect of such a decision on the European Communities Act 1972, or by analogy with a particular reading of the purpose of the European Union Act 2011’sapproval provisions, seem clearly to reflect the normative ideal that the sovereign UK Parliament must have a core role in commencing the path to Brexit. Further, debate about whether the royal prerogative, in the absence of a new Act, is sufficient to provide a legal basis for the government – on the instructions of the electorate as established by the referendum result – to make the formal legal decision to leave the EU, or whether an existing statutory power has displaced the prerogative in these circumstances, is similarly influenced by the desirability of having some parliamentary involvement in, and scrutiny of, this decision.

There may be a further normative instinct which is not as immediately apparent in these debates. In addition to wanting to see Parliament centrally involved in this process, we may see some of these claims as serving to create space in which the referendum result can be challenged, and perhaps even potentially reversed – there is a fine line, after all, between scrutiny and formal approval, and the legally sovereign Parliament stepping in effectively to displace the outcome of the referendum with the outcome of its own deliberations. This normative idea may be manifested explicitly in suggestions that parliamentary sovereignty might be so exercised, free of the democratic or political limits that the referendum result might appear to impose (or, alternatively, in pursuit of political or democratic imperatives – such as a parliamentary duty to the national interest – that might appear to clash with the outcome of the Brexit vote). Yet it might also be implicit in the notion that if enough constitutional barriers are created, a decision for the purposes of Art 50 notification will be delayed to the point that it is either overtaken by events, or somehow slips from the national consciousness.

Given the magnitude of a decision to leave the EU, and the potential negative consequences for the UK which are becoming increasingly tangible, these normative instincts are entirely understandable. And they may be felt especially acutely given that many with the much maligned ‘expert’ knowledge of the UK’s relationship with the EU are likely to disagree with the decision to leave in itself, and consider it to have been procured by a campaign about which there was much to dislike, and indeed lament.

Nevertheless, I think we need to acknowledge these underlying normative factors more openly, but also try to separate them out from the legal questions concerning Art 50. And in so doing, we can both be clearer about the legal position in relation to a decision under Art 50, and – more importantly – see a greater priority for constitutional discussion in the midst of this crisis.

Authorising an Art 50 Decision – Separating Normative Instincts and Legal Necessity

Once we recognise more directly the normative ideas which are influencing and shaping the Art 50 debate, I suggest we are better placed to reach clear conclusions about the legal position. The notion that a new Act of Parliament is required to authorise a domestic decision to exit the EU seems flawed. The effect of a decision taken by the government under the royal prerogative power to conduct foreign affairs and international diplomacy, following the instructions of the electorate at the Brexit referendum, does not have any direct effect on the domestic legal validity of the European Communities Act 1972 – this will be valid as a matter of UK law unless or until repealed by Parliament, as of course it certainly would be at the conclusion of withdrawal negotiations.

Similarly, attempts to draw a parallel with the European Union Act 2011, while well motivated, also fail. A decision to withdraw from the EU does not have the effect of amending or replacing the EU treaties under s.2 of the 2011 Act – those treaties will be unchanged, and continue to apply to the UK until the conclusion, not the commencement, of withdrawal negotiations. Moreover, that Parliament chose not to bring an Art 50 decision explicitly within such a wide ranging scheme to authorise decisions taken at EU level is clear evidence that the statute should not be read to have the contrary effect; indeed, the statutory purpose of the 2011 Act was to prevent power and competence being passed from the UK to the EU, and not the reverse. The prospect of the courts taking a broader view of the requirements of the 2011 Act is extremely slim – in the leading case of Wheeler, the Administrative Court rejected a far less politically contentious attempt to push an expanded reading of these statutory referendum locks, endorsing a strictly literal approach to the interpretation of the legislation.

A final question is whether the royal prerogative has been displaced by a competing, existing statutory power. Whether s.2(2) of the European Communities Act 1972provides such a basis, and must be used in preference to the prerogative, largely turns on whether the ‘lawyerly deformity’ of Art 50 (introduced only in the Treaty of Lisbon in 2009) establishes a ‘right’ to withdraw from the EU, or if it simply creates an EU level process to acknowledge and channel a pre-existing national right held by all Member States. A fundamental difficulty, in circumstances of interpretive ambiguity, is that the government may be unlikely to accept that a right to withdraw exists ‘by virtue of the treaties’ (and may be justified in so doing). That to make the decision under s.2(2), through a statutory instrument laid before Parliament, would establish an avenue for some parliamentary scrutiny of the decision (even though to a lesser extent than as would be required for the enactment of new primary legislation) does not ultimately seem sufficient to remove these doubts about the legality of the use of the royal prerogative.

Crucially, however, even if the prerogative is taken to provide a legal basis for an Art 50 decision, as opposed to a new Act of Parliament or an existing statutory power, Parliament will still be centrally involved in the process of UK exit from the EU. That it could be the government which commences this process, under the royal prerogative and implementing the distinct result of a national referendum, does nothing to alter the fact that Parliament will be the appropriate forum, and possesses the necessary authority, to construct the UK’s new relationship with the EU as a matter of domestic constitutional law, whatever that may be. And it is not as if Parliament has been silent in the process to this point – it was Parliament which authorised the holding of a national referendum on the question of EU membership in the European Union Referendum Act 2015. The doctrine of parliamentary sovereignty does not require that Parliament takes every decision; rather that it has ultimate legal power to establish whatever framework for decision-making it chooses.

Efforts will no doubt be needed to ensure that there is maximum parliamentary input into the process of reshaping the UK legal system post-Brexit – rather than, say, by authorising a massive delegation of near unprecedented power to the executive to legislate across a range of substantive areas formerly governed by EU law. Yet if we approach the process holistically, it becomes clear that parliamentary control over the decision to trigger Art 50 is neither legally necessary nor exclusively determinative of the extent to which Parliament will be centrally engaged in managing the change that accompanies UK exit from the EU.

The further normative idea underpinning the Art 50 debate, that we might try to establish constitutional barriers to Brexit (of which Art 50 is just one – others include the possibility of veto or non-consent from the devolved institutions), requires a different approach once openly explored. It is clearly not the case that a rejection of the referendum result underpins all (or perhaps many) of the differing positions which have been advanced so far – indeed, the argument of Barber, Hickman and King which started this debate makes no such claim. Yet the constitutional arguments can be utilised by others who do wish to explore whether we might block Brexit, and so far as this idea is reflected in wider debates about Art 50, I think it must be rejected.

A referendum has been held at Parliament’s instigation, on the basis of a manifesto commitment from an elected government. The result was relatively narrow but decisive, and on a significant turnout: at 72.2% it was higher than at any general election since 1992, higher than the turnout of 64.6% at the 1975 referendum on continuing EEC membership, and very considerably higher than the turnout of 42.2% at the 2011 referendum on an alternative voting system for the House of Commons. It did not reach the levels of the 84.6% turnout at the Scottish independence referendum in 2014, but the Brexit referendum exceeded most expectations as to the ultimate level of popular participation. The democratic credentials of this referendum must be understood to afford the result a clear constitutional authority.

The consequences of a failure to recognise this may be significant – there is emerging evidence that the result of this referendum must be understood as part of a broader‘anti-politics’ narrative, and that suspicion of domestic, European and international elites drove many to reject the status quo. The disjunction between political elites and the broader electorate is a profound constitutional problem – not just in the UK, but across democratic states – and it is essential to avoid action which has the potential to inflame or exacerbate this situation. And this is to say nothing of the specific impact that challenging the referendum result could have on political debate in the UK, guaranteeing (even more) anti-European sentiment in perpetuity.

This is not to say, however, that the referendum has definitively settled everything – on the contrary, there are important democratic issues regarding Brexit which remain outstanding. Yet in focusing in such depth on Art 50 – the start of the formal process of leaving the EU – we may be in danger of neglecting discussion of what happens when we enter that process. And there are important issues of constitutional principle that need to be addressed sooner rather than later, including the question of a further mandate, not for Brexit itself, but for the negotiation of the kind of Brexit we ultimately experience.

The Process of Brexit – The Constitutional Necessity of an Early General Election

The referendum on EU membership has established a mandate for UK exit from the EU. Yet no clear vision of the UK’s future relationship with the EU was articulated with any consistency by the leading members of the leave campaign, and there is of course an array of options. At one end of the spectrum we see continued membership of the EEA, with single market access obtained through financial contributions and acceptance of free movement; at the other, a complete separation with trade governed under international WTO rules. Democratic input is essential to determining how we choose between these options, and the many variations imaginable (at least in principle) in between.

A second referendum would not be an appropriate way to achieve this. There would be the practical problem of timing – would such a referendum be held at the conclusion of negotiations to endorse the outcome? What if the outcome was then rejected? The UK’s bargaining power is already likely to be weak, and rejection of a deal by the electorate would be unlikely to persuade the remaining EU members to offer better terms. Yet a pre-negotiation referendum to establish the UK’s ideal post-Brexit outcome would also be very problematic – it could give the appearance of undermining the result of the initial referendum, there would be difficulties in framing an inevitably complex question with sufficient precision, and perhaps most significantly, the EU is already moving on without the UK. While some delay in triggering Art 50 is understandable, excessive delay risks testing the patience of those with whom the UK must eventually negotiate, and runs the risk that our future position may effectively be defined for us, in our absence, by the 27 remaining Member States.

Instead, an early general election is required to provide this essential democratic input into the process of negotiating UK exit from the EU. The government that leads the Brexit negotiations must do so on the basis of a set of manifesto commitments endorsed by the electorate at a general election, setting out a clear direction for the UK’s future relationship with the EU, on the basis of which it can be held to account in Parliament. This is a necessity, given the scale and significance of what is to come, the range of potential options, and the UK’s relative lack of bargaining power (even if only to a minimal extent, that the negotiating government has a fresh mandate for its starting position can only assist it in discussions with the rest of the EU). And it is a constitutional necessity, because this argument for an early general election is rooted in the constitutional significance of Brexit as a political event, rather than the political arguments for an early general election as a device to boost the authority of whichever candidate ultimately replaces David Cameron as Prime Minister.

The precise details as to when an early general election should be held remain open to debate. It seems likely that the next Prime Minister might first wish to trigger Art 50, to guarantee that there can be no way back from the result of the Brexit referendum. Yet this also has the disadvantage of starting the clock running on the (potentially extendable) two year withdrawal negotiation period set out in the TEU. Nevertheless, it is important that the constitutional necessity of an early general election, whether later in 2016 or even early in 2017, is examined now. First, because the candidates to be the next leader of the Conservative Party, and therefore next Prime Minister, are alreadyadopting positions on this issue. While it may be most convenient for them to argue for the avoidance of an early general election, they must at the very least be prompted to justify their rejection of this in constitutional terms. Second, we can expect to encounter claims that the Fixed-term Parliaments Act 2011, in limiting the circumstances in which an early general election can be held, somehow constitutes a legal barrier to this occurring. While the 2011 Act is of course not an absolute barrier to an early general election, debate may be required as to whether an early general election might best be triggered using the process set out in s.2(1), requiring two-thirds support of a motion in the House of Commons, or the repeal of the Act outright.

We may not wish to start from here, but there must be recognition of where the UK now stands following the referendum vote to leave the EU. Potential legal challenge is likely to be futile, based on the strength of the contrary arguments and the need for judicial sensitivity with respect to intensely contentious democratic political questions; it also presents an unappealing path to further unwelcome conflict and uncertainty. Instead, operating within the legal framework of the UK constitution, a normative priority emerges in place of those which appear to underpin (or are being projected into) the Art 50 debate: an early general election should be seen as a constitutional necessity.

Dr Mike Gordon, Senior Lecturer, University of Liverpool


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