The EU referendum and some paradoxes of democratic legitimacy

Nat-le-Roux

In parliamentary democracies referendums generate alternative, competing sources of legitimacy. This has been clearly demonstrated by the EU referendum result, with the public voting to Leave despite a clear parliamentary majority for continued membership. Nat le Roux discusses this paradox and suggests that it would not be unreasonable for some MPs to choose to vote against the invocation of Article 50.  

In a parliamentary democracy, referendums are potentially destabilising because they generate alternative, competing, sources of democratic legitimacy. A majority of elected representatives may hold one view on a matter of major national importance. If a referendum demonstrates that a majority of the public hold the opposite view, which manifestation of democratic legitimacy should trump the other?

In Britain, parliamentary sovereignty is the governing norm of the constitution: it would seem to follow that a parliamentary majority can always overturn a referendum result. The reality, at least in the particular circumstances of the EU referendum, is less clear cut:

  • The referendum result will be implemented, effectively irrevocably, if Britain invokes Article 50 of the Treaty on European Union. It may be that the Prime Minister can do this without consulting parliament. If that is so, it can be argued that we now have a new constitutional principle under which, at least in particular cases, popular sovereignty as expressed in a referendum trumps parliamentary sovereignty.
  • On the other hand, if the invocation of Article 50 does require legislation, we should ask under what circumstances, and by what arguments, MPs can overturn the directly expressed views of the electorate without severely damaging the democratic legitimacy of parliament itself.

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What role will parliament have in triggering Article 50 and shaping the terms of Brexit?

robert_hazell (1)Jack_Sheldon

Constitutional lawyers have been engaged in a major debate over whether parliamentary authorisation is needed for Article 50 to be triggered and the process of negotiating Brexit to formally begin. In this post Robert Hazell and Jack Sheldon move the discussion on, asking how parliament might debate the triggering of Article 50 and, once it has been triggered, what role parliament might play in scrutinising the negotiations that follow.

There has been an outpouring of blog posts discussing whether there is a legal requirement for parliamentary authorisation before the Prime Minister can trigger Article 50 and start the formal negotiations to lead to the UK’s withdrawal from the EU. However, it is probable that regardless of the legal position, the political realities will require some form of parliamentary consent. This post moves the discussion on, to ask in what ways parliament might debate the triggering of Article 50, and, once it has been triggered, what role parliament might play in scrutinising the Brexit negotiations that follow.

Controlling the use of Article 50

Whether the government wants it or not, parliament is likely to have an opportunity to express its support for or opposition to the triggering of Article 50. This could take the form of either legislation, which would formally bind the Prime Minister and government, or a debate on a resolution about the triggering of Article 50 and the conduct of negotiations.

Legislation

Some have argued for the passage of legislation to govern the Brexit process. A court action has been launched to test whether legislation is required before Article 50 can be triggered. Undoubtedly much primary and other legislation will be necessary over the coming years to achieve separation. To explain the different options, this post assumes the court action will fail, so that legislation prior to triggering Article 50 is optional, and not a legal requirement.

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Will Theresa May call an early General Election? And would it resolve things if she did?

robert_hazell (1)

Theresa May has ruled out an early general election, but that has not stopped predictable calls for her to trigger one on the grounds that her elevation to the premiership without a general election is undemocratic. Robert Hazell suggests that in saying that an early general election is not necessary she is entirely correct: the idea that Prime Ministers need a personal mandate is a misunderstanding of our parliamentary system. Were she to want to hold an election it would not be impossible for her to do so, but the Fixed-term Parliaments Act makes this more complicated than it has historically been and, in the context of Brexit, it is unclear what an early election would resolve in any case.

Does a new Prime Minister need a democratic mandate?

As soon as it was announced that Theresa May would be elected unopposed in the second stage of the Tory leadership race, and so would become Prime Minister, the predictable cries went up that this was undemocratic. No one had voted for her, it was said, other than the 35,000 electors in Maidenhead who voted for her at the 2015 general election, and the 199 MPs who voted for her in the final ballot amongst Tory MPs. The 150,000 members of the Conservative party had been deprived of any choice in the matter, let alone the 46 million electors in the country at large.

Theresa May has herself ruled out the need for an early election. Constitutionally she is entirely correct: the idea that prime ministers need a personal mandate is based upon a fundamental misunderstanding of our parliamentary system. Only in presidential systems is the head of the government directly elected. In parliamentary systems we elect a parliament, not a government. Parliamentary elections are a two stage process: after we have elected a parliament, the new parliament then determines who forms the government. And it is not uncommon for the head of government to change part way through a parliament, and not to call a general election.That has happened five times since the Second World War: when Harold Macmillan succeeded Eden in 1957, when he in turn was replaced by Alec Douglas-Home in 1963, when James Callaghan succeeded Harold Wilson in 1975, when John Major followed Margaret Thatcher in 1990, and when Gordon Brown succeeded Tony Blair in 2007. So far as I can recall, only in the last case was it suggested that the new Prime Minister needed to call a second election.

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What if Labour splits?

Meg-Russell

In the post-referendum turmoil facing the Labour Party, there are increasing questions about whether the party might split. Despite shadow cabinet resignations and a Parliamentary Labour Party vote of no confidence, Jeremy Corbyn seems determined to hang on, and to force a contest if necessary. If that proceeds, a split looks very likely. But what would this mean in organisational terms: both inside parliament and beyond? Meg Russell investigates.

Events in the Labour Party over the last week have been extraordinary. Accused of a lacklustre performance in the Brexit referendum, party leader Jeremy Corbyn has lost the majority of his frontbench through resignations – sparked by his dramatic sacking of Shadow Foreign Secretary Hilary Benn. Labour MPs have now agreed a motion ‘That this PLP has no confidence in Jeremy Corbyn as Leader of the Parliamentary Labour Party’, by 172 votes to 40. Yet still Corbyn seems determined to hang on, and to force a contest in the wider party, hoping to retain the support of his activist base. As noted in a previous post this follows rule changes turning the Labour leadership contest into a fully ‘one member one vote’ process, and giving voting rights to ‘supporters’ who signed up for just £3. Left-wing activists flooded into Labour to vote for Corbyn, with the unprecedented consequence in British politics that a parliamentary party was left with a leader which it did not support. The problem in the referendum was not only that Corbyn campaigned half-heartedly, and was even accused of actively undermining the Labour Remain campaign, but that his presence from the very outset meant that the media and public had ceased taking Labour seriously.

The prospect of a contest raises the very serious possibility of a Labour Party split. If there were a contest and Corbyn won, the majority of his MPs might well feel forced to abandon the party. If he lost, he and his supporters might be forced out. Indeed a split might even be seen by some in the party as preferable to a contest – which would run all summer and could only have a messy end. But how would a Labour Party split work in practice? What, in particular, would be the immediate parliamentary consequences? What are the wider organisational repercussions? This post focuses particularly on the former, but touches on the latter – concluding that they are far more difficult.

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The road to Brexit: 16 things you need to know about the process of leaving the EU

me 2015 (large)

The UK has voted to leave the European Union. So what happens next? How, in practical terms, will Brexit actually happen? Alan Renwick explored some key elements of the withdrawal process before the referendum campaign began. Here, he gives a point-by-point overview of what the road to Brexit will look like. This is an updated version of a post published on 20 June, which is available here.

The effect of the referendum

1. The UK remains a member of the EU for the time being. In purely legal terms, the referendum result has no effect at all: the vote was advisory, so, in principle, the government could have chosen to ignore it. In political terms, however, ministers could never have countenanced that. The Prime Minister has said that voters’ will ‘must be respected’ and indicated the start of a process of withdrawal. We should presume that the vote to leave means that we will indeed leave (see point 16) – though there is scope for various complications along the way.

2. The immediate effects of the result are political rather than legal: the Prime Minister has announced his resignation, and a motion of no confidence has been submitted in Labour leader Jeremy Corbyn. There was speculation before the referendum that David Cameron would be out of Downing Street within days after a vote for Brexit, but his decision to stay until his successor has been elected reflects much more than just personal preference. The Cabinet Manual is clear (at paragraph 2.10) that he cannot go until he can advise the Queen on who should form the new government. Conservative party rules set out a two-stage leadership election process: first, the parliamentary party, through successive ballots, whittles the field down to two candidates; then the party membership, by postal ballot, chooses between these. Recent experience suggests this would take two to three months.

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The road to Brexit: 16 things you need to know about what will happen if we vote to leave the EU

me 2015 (large)

As the referendum on the UK’s membership of the EU draws closer, the result is impossible to predict. Many are asking what, in practical terms, would happen if we vote for Brexit. Alan Renwick explored some key elements of the withdrawal process before the referendum campaign began. Here, he gives a point-by-point overview of what the road to Brexit might look like.

**An updated version of this post was published on 24 June in light of the referendum result**

The effect of the referendum

1. We will not immediately leave the EU if the result on 24 June shows a majority for Brexit. Indeed, in purely legal terms, the referendum result has no effect at all: the vote is advisory, so, in principle, the government could choose to ignore it. In political terms, however, ministers could not do that. We should presume that a vote to leave means that we will leave (see point 16) – though there is scope for various complications along the way.

2. The Prime Minister would very likely announce his resignation quickly, but would stay in post until his successor was chosen. There is much speculation that David Cameron would be out of Downing Street within days, and it is true that his position would probably become untenable. But the Cabinet Manual is clear (at paragraph 2.10) that he cannot go until he can advise the Queen on who should form the new government. Conservative party rules set out a two-stage leadership election process: first, the parliamentary party, through successive ballots, whittles the field down to two candidates; then the party membership, by postal ballot, chooses between these. Recent experience suggests this would take two to three months.

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