affiliated to the International Association of Constitutional Law
Alea jacta est said Caesar, having crossed the Rubicon and burned his bridges. The Brexit referendum appears equally momentous and irreversible. But is it? There have been calls for Parliament simply to ignore the outcome. A fresh general election should be called to resolve the mounting constitutional crisis.
The post-referendum debate presents both straightforward and fiendish, unprecedented problems for constitutional lawyers. For the most part (save as indicated below) the questions of law are clear. The House of Commons cannot be legally compelled to follow the referendum result. That is undeniable. But would it be unconstitutional for the Commons to ignore the decisive popular vote for Brexit (held under an Act of Parliament)? Although a few referendums have been held in Britain in the past forty years (of three UK-wide referendums, two concerned EEC/EU membership), the situation is quite without precedent. Never before has the electorate endorsed a position that a large majority of the House of Commons firmly opposes. Hence the chasm between popular will and the representative democracy in the House of Commons. There are therefore no helpful precedents for what should happen in this situation. There is nothing approaching the settled practice and widely-accepted answer necessary for even the semblance of a convention of the constitution. We are in uncharted waters. Navigating the way ahead would ideally be done cautiously and with great deliberation. But the matter is urgent, the nation (literally) divided, and the political climate overwrought. So an answer must be found quickly.
Other suggested courses of action can be briskly dismissed. Most would think that the first EU referendum was divisive and ill-tempered enough. A second referendum would be worse. The petition’s supporters believe that the electorate gave the wrong answer. That is scarcely reason to put the country through it again. There are certainly (somewhat Brechtian) precedents for electors being required to vote again, in other countries, after rejecting an EU proposal in a referendum. These should not be followed, surely.
Assuming that a second referendum will not happen, is Parliament required to follow the first one? David Lammy MP and Geoffrey Robertson QC have suggested that the referendum was advisory only and cannot bind Parliament to support HM Government’s decision to trigger the Article 50 process (or, if it be necessary, to enact a statute triggering Article 50), or to repeal the European Communities Act 1972. In strict law this is clearly correct. But it would cause a serious constitutional crisis were the House of Commons to reject the will of the electorate expressed directly in a national referendum held under the very recent European Union Referendum Act 2015 —in which the turnout was considerably higher than at last year’s general election.
Against the view that the Lammy/Robertson position would be unconstitutional there is the long-accepted Burkean conception of a Member of Parliament exercising his or her own “mature judgement” rather than acting as a mere delegate for his or constituents. An MP is not a cipher for the electors’ views. Can MPs really be obliged as a constitutional matter (there is no question of legal compulsion) to support a policy that all major parties firmly opposed at the last election, and throughout the referendum campaign, and which individual Members still believe utterly catastrophic?
Awkwardly therefore, while there are powerful reasons for Parliament to consider itself constitutionally bound by the referendum’s outcome, there are opposing reasons, deep-rooted in our tradition of representative democracy, why MPs could properly decline to do so according to their “enlightened conscience” (Burke), although they would of course be accountable to their constituents for their judgements at the following election.
Holding a general election sooner would resolve this dilemma. We can presume that the newly chosen Conservative Prime Minister (whoever it is) will form a pro-Brexit government. Arguably this represents such a major change of Conservative party policy that the new government should go to the country to have it endorsed—i.e. call a general election with just one momentous issue at stake. A telling (although hardly exact) precedent is the second election of 1910 in which Asquith successfully appealed to the electorate to support the Liberal government’s scheme to abolish the House of Lords’ power to block Bills; this electoral test played a significant role in convincing the peers to acquiesce in the Parliament Act 1911.
In such a fresh election (held in late 2016 or early 2017), if the Conservatives (and UKIP and Northern Ireland Unionist parties), campaigning for Brexit, emerged victorious there could be no question that the new Parliament would support the Government’s policy, and the referendum vote to leave the EU. Conversely, if some combination of Labour, Liberal and Scots/Welsh Nationalists won a snap poll, on a platform of remaining in the EU, their mandate could properly be seen to supersede the referendum. The Brexit camp could not easily object to a new Labour/Coalition Government cancelling the Article 50 notification in the event of such an electoral victory. After all, the single most powerful argument for EU withdrawal was to protect, and indeed revive, the sovereignty of the Westminster Parliament.
Of course, the Fixed Term Parliaments Act 2011 presumptively sets the date of the next election as 2020—much too late for these purposes. The Act was arguably a short-term political fix to regulate the internal workings of the 2010-15 Liberal-Tory coalition; as the respected former Clerk of the Commons Lord Lisvane correctly predicted prior to the referendum result, its constraints cause difficulties in the wildly different constitutional situation unfolding before our eyes. The 2011 Act is not absolute. Perhaps two-thirds of MPs could be persuaded that it is in everyone’s interest that the referendum result be tested, urgently, at a fresh election. Perhaps enough Conservative MPs would join the opposition parties in formally voting No Confidence in a (say) Theresa May Government that an early election would be triggered that way. More radically still, the 2011 Act could simply now be repealed by an ordinary majority in the House of Commons (although the Lords would need to agree smartly too, for their residual one-year delaying power under the Parliament Acts would be as a good as a veto over a snap general election). The Prime Minister’s traditional right to request the Queen to dissolve Parliament would then be reactivated. (Although some have suggested that the “dissolution prerogative” has been abolished outright by the 2011 Act, the better view—surely—is that it is only in abeyance and would of necessity revive were the 2011 Act repealed. Hopefully the courts would not be dragged into this question, i.e. not be asked to rule on the lawfulness of a prerogative dissolution of Parliament, were the 2011 Act to be repealed. This is one of the many questions in the Brexit debate simply too politically controversial to admit of a happy judicial resolution.)
It is hoped that cross-party support will build for a fresh general election in 2016. The country would be given the opportunity to endorse (or reject) the new Prime Minister’s concrete plan for Brexit, and to mandate their MPs to support it (or not). This would compare favourably with the entirely abstract question posed in the referendum. The implications of Brexit are already clearer than they were a week ago. The alignment of Parliament with the will of the people should not wait until 2020 (by which time Brexit would be irreversible). A fresh general election with a real choice about EU membership is desirable. A single-issue election would be the parliamentary equivalent of a (second) referendum, as Richard Ekins has suggested (although he does not advocate a new election). To hold a general election in the coming months would ensure that the ultimate choice about leaving the EU (and on what terms) would be made through Parliament and elections to it, consistent with the constitutional tradition of the United Kingdom.
Jonathan Morgan, Senior Lecturer in Law, Corpus Christi College, University of Cambridge
(Suggested citation: J. Morgan, ‘A Brexit General Election?’, U.K. Const. L. Blog (9th Jul 2016) (available at https://ukconstitutionallaw.org/))