UK Constitutional Law Association

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Kenneth Armstrong: Should Turkeys Vote (be)for(e) Christmas? An Early General Election and Article 50

Kenneth ArmstrongIn a piece published last week I set out the argument for why a general election is needed before the UK notifies a decision to withdraw from the European Union in terms of Article 50 TEU.

Writing here, Mike Gordon similarly also redirects constitutional lawyers concerns about the role of parliament in the withdrawal process, towards the same end: an early general election.

The election of a new leader of the Conservative Party – and in consequence the UK’s future prime minister – frames and dramatizes the constitutional problem highlighted by others that it will be the membership of the Conservative Party and not MPs that will elect someone to implement the 23rd June referendum result.

The demand made by those calling for an early election is to restore representative democracy to its central place in our constitutional framework by requiring all political parties to set out and contest their vision of a future UK-EU relationship.

But to avoid merely repeating arguments made elsewhere, this contribution advances the argument by suggesting that in certain ways an early general election may actually be in the interest of the political parties and their leaders.

The former leader of the Liberal Democratic Party, Nick Clegg, writing in The Guardian, has recently made the argument that an early general election should be called.

It would be easy to dismiss Clegg’s intervention as the self-interested demands of a former leader whose party lost 49 MPs in the last general election in 2015.  An early general election might be self-evidently in his party’s interest.

However, a plausible argument can be made that the discipline of a general election may not only help give direction to our political parties after a period of turmoil, it may actually help them pursue their own interests.

And with elections to the French Presidency next year already beginning to reveal their significance for Brexit, it would seem odd that elections held in other EU states could determine the outcome of negotiations more than an election in the UK.

Before setting out the political argument, it’s useful to set out briefly the fundamental thesis that underlies the claim that a general election ought to be held before Article 50 is triggered.

The referendum held on 23rd June was the start and not the end of a process through which the UK will determine its future relationship with the EU. Whereas David Cameron as Prime Minister had a mandate for a referendum that was promised in his party’s manifesto, none of the political parties have a mandate from which to define future UK-EU relations.

The internal leadership contest within the Conservative Party is no substitute for a true electoral mandate. A process is needed that allows all parties – whether of the left or the right; from all the constituent territories of the UK; and whether they were in favour or against EU membership – to set out their positions on where Brexit will take the country.

And only by a political contest can both a new parliament and government play their respective constitutional roles in the Article 50 process.

This proposal respects the outcome of the referendum but returns representative democracy to its central role in the UK’s essentially political and facilitative constitutional structure.

But is this proposal actually in the interests of the political parties?

As the governing party, it will be for the next Conservative Prime Minister to trigger Article 50. It seems likely that the leadership contest that will elect not just a new leader but also the Prime Minister will be fought between individuals on either side of the Remain/Leave camps.

If a ‘Remain’ candidate like Theresa May were to win the leadership, agreeing a position in a manifesto that Brexit means Brexit, could help ensure that the referendum was respected in substance and not just in form. It could also increase her credibility not just within her own party, but in the Article 50 negotiations themselves; important given that the Treaty rules weight the bargaining power against the withdrawing state.

If a ‘Leave’ candidate like Andrea Leadsom were to win the leadership, whatever authority they might have to initiate the UK’s divorce from the EU, they would lack any electoral mandate as to what ‘Leave’ might actually entail.

What ‘Leave’ means is really important.

One argument against the Electoral Commission’s recommendation to change the referendum question from one that would give a Yes/NO answer to Remain/Leave, was that it was not clear what voters would be voting for if they voted ‘Leave’.

For some this might simply mean having nothing whatsoever to do with the EU. For others it might mean Swiss or Canadian style trade deals. Some might even have contemplated the European Economic Area or ‘Nordic’ model. But having voted for Leave, we simply do not know which of these alternative models might be sought, as Oliver Letwin made clear in his appearance between the Common Foreign Affairs Committee on 5 July.

To put it at its simplest, a majority of the electorate has voted to leave the EU but a majority has not expressed its wishes as to where that takes the UK in its future relationship with the EU.

An early general election fought on the basis of a specific model of future UK-EU relations might also help a new Prime Minister avoid the risks associated with an outcome of future negotiations which a majority of the electorate would not support and which might give rise to demands for a referendum on the new relationship. A future referendum that rejected a UK-EU deal would likely lead to the fall of the government and leave far greater long-term uncertainty than an early general election.

For supporters of the UK Independence Party, a general election would be a means of seeking to reflect their preferences in the political process going forward. While Nigel Farage was a key figure promoting Brexit, he was not directly part of the official Vote Leave campaign. In the aftermath of the referendum result, it was suggested that Farage should have a role in the future negotiations once Article 50 was triggered. With the announcement of his departure as leader of his party, a new leader will emerge and a general election would be an opportunity for UKIP supporters to seek more direct influence over the Article 50 process through the election of representatives to a new parliament.

The situation in the Labour Party is more complex. The Labour leader Jeremy Corbyn has lost the confidence of his parliamentary colleagues. A leadership election may well ensue. The contests within the party are not just about leadership but also between different political wings and factions.

Left-wing Brexit supporters or sympathisers criticised the power taken from national control and argued that outside the EU, a Labour government could tackle the politics of austerity.

Those Labour supporters who backed the Remain campaign tended to see European cooperation as a mechanism of managing the forces of globalisation and a means of providing regulatory standards for workers, consumers and to protect the environment.

A general election would be an opportunity for the Labour Party to define a clearer vision of what Brexit means from a Left perspective. This would also give the party an opportunity to speak directly to the aspirations and fears of younger voters who not only are an important constituency of its membership but were also more likely to have voted for the UK to remain in the EU.

In short, if the referendum campaign suffered from a failure to articulate both Left and Right versions of Remain/Leave, then a general election could compensate by contesting these different versions of UK-EU relations.

The Scottish National Party was the big winner in the 2015 general election, winning 56 of the 59 constituency seats in Scotland.  In itself, this result tells us how much referendums change politics and why general elections are important in reflecting those changed realities.

With such dominance of the Scottish seats that it contests, the SNP may have little incentive to go into another general election compared with the position of the Liberal Democrats. But for the same reasons as apply to UKIP – the desire to have voice and influence in future UK-EU negotiations – an election in which the SNP set out a clear vision of Scotland’s place in Europe might go some way to allow the SNP to navigate between respecting the outcome of the Scottish independence referendum and protecting Scotland’s relationship with the EU.

More radically, it could be the pretext for seeking an electoral mandate for a second independence referendum given that 62% of voters in Scotland voted for the UK to remain in the EU. Although a general election would not be without its risks – the SNP lost seats at the more recent elections to the Holyrood parliament – the lure of a second independence referendum might yet make an election an attractive prospect.

Like Scotland, a (smaller) majority of voters in Northern Ireland backed continued UK membership of the EU.

Brexit has significant implications for Northern Ireland and key questions need to be answered about how to respect the Good Friday Agreement and whether border controls will be needed between a Northern Ireland outside of the EU and an Ireland that remains a Member State. Political leaders have already set out rather different visions of what future negotiations should look like, with the SDLP suggesting that talks include representatives of the Irish government. A general election is the obvious mechanism through which to allow these different visions to be contested.

In Wales, the key issue for the future is the significant amount of EU funding which it receives under the EU Cohesion Funds. Understanding how the withdrawal of such funds will affect Wales and the positions of the different parties in terms how such a loss might be compensated would be at the centre of a Welsh general election campaign.

European leaders may well complain that a general election would further delay formal withdrawal under Article 50.

This proposal envisages that a general election could be held in late Autumn with a view to a UK Prime Minister being in a position to notify the December meeting of the European Council of the UK’s intentions under Article 50. It is not, therefore, necessarily the case that a general election would unduly delay the start of the withdrawal process.

There is one final reason why I believe a general election might be in the interest of the political parties.

No one can be in any doubt about the enormous ramifications of the referendum result. Politics is in a state of flux and, to a certain extent, in disarray. With leaders resigning or under threat of replacement there is a growing sense of a political vacuum emerging between the referendum result and its implementation with no one having or taking responsibility for taking things forward.

The discipline of a general election is perhaps the most natural response to focus the minds of our political parties and to fill the vacuum.

Kenneth Armstrong is Professor of European Law, University of Cambridge.

(Suggested citation: K. Armstrong, ‘Should Turkeys Vote (be)for(e) Christmas? An Early General Election and Article 50’, U.K. Const. L. Blog (11th Jul 2016) (available at https://ukconstitutionallaw.org/))

2 comments on “Kenneth Armstrong: Should Turkeys Vote (be)for(e) Christmas? An Early General Election and Article 50

  1. John Andrews
    July 11, 2016

    I’m increasingly feeling some sympathy with the old “what do you think about the discovery of 3 lawyers dead in the sea?” “A slow start”. These posts are too much about hypothetical issues and personal judgements.

  2. Dear Professor Armstrong,

    You write: “To put it at its simplest, a majority of the electorate has voted to leave the EU but a majority has not expressed its wishes as to where that takes the UK in its future relationship with the EU.”

    Is the first part of the sentence correct? Isn’t the core definition of “electorate” those who have the right to vote and are registered to vote?
    In the 23 June referendum a majority of those who cast ballots voted to leave. But they were not a majority of the electorate: they were 17.4m (37.4%) of the electorate of 46.5m. Meanwhile, 16.1m (34.7%) of the electorate voted Remain, and 12.9m (27.9%) of the electorate did not vote. Put another way, 62.6% of the electorate did not vote Leave.

    This consideration surely only strengthens your point that “a majority of the electorate has not expressed its wishes as to where [the Leave vote] takes the UK in its future relationship with the EU”?

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