The decision of the High Court to demand that Parliament rather than the Government/Executive must invoke Article 50 (to leave the EU) has, understandably, produced a negative reaction especially from elements of the press. This ranged from accusations of frustrating the ‘will of the people’ to treason. The greatest fear was that it would delay or even sabotage Brexit.

In reality, although Parliament could on paper reject Article 50, no-one thinks that likely. Some 421 out of 574 English and Welsh constituencies voted to Leave and that will be a factor in those MPs minds. If the Tories impose a three line whip plus the added votes of the DUP and individuals of other parties, will easily pass the relevant motion. Labour are threatening to vote against that motion unless there is a commitment to access the single market. This of course is disingenuous since everyone believes that would involve some form of freedom of movement and that is anathema to millions of voters. Such a move could backfire on Labour. In any event, the post-Brexit relationship between the UK and the EU/27 members will be the result of negotiations and not just imposed by the former. It will all depend on May’s resolve to get the motion passed without compromise.

The Government had previously, albeit reluctantly, agreed that Parliament would have a say in the terms of Brexit after Article 50 was invoked. The High Court action has simply added another level of Parliamentary, as apart from just Government, involvement. Whether the Government’s negotiations will be hampered by a pro-EU/Soft Brexit Parliament prior or after A50 is invoked remains to be seen.

SUBVERSION?

There has been criticism that the judges’ actions were an attempt to subvert the ‘will of the people’? Whilst that may be been in the mind of some of the plaintiffs and backers, the question the High Court was asked to decide upon was whether the Executive or Parliament had the right to invoke Article 50? Because the UK doesn’t have a written constitution, ultimately what is ‘legal’ is not clear. Whilst we might be unhappy with the implications of the HC’s decision to fall on the side of Parliament this time, there may be many other occasions where we would oppose a Government’s unfettered power. Indeed we should always be opposed to unfettered Government power.

WILL OF THE PEOPLE

The larger question is: where does the ‘will of the people’ e.g. referendums’ fit in all this?

The UK traditionally talks about the ‘Sovereignty of Parliament’. The High Court action was essentially a resolution, on this one issue only, of the perennial tension between Parliament and Government. Whilst the UK has no Constitution (a complicated issue itself) this will always be possible and indeed the High Court decision itself is being appealed at the Supreme Court.

If the UK continues to use referendums, and we demand that it must, to decide upon, presently major, national issues it requires a position within our system. In other words, whether it is advisory or statutory, who (can) call it and how the results are interpreted and implemented.

We would put the ‘will of the people’ i.e. referendums at the top of any system, followed by an elected legislature, and finally Governing bodies. Essentially ‘Direct’ rather than ‘Representative’ Democracy would predominate. We would support the introduction of a bespoke version of the ‘Swiss model’ of democracy.

SWISS MODEL

In Switzerland, statutory Referendums are held on any proposed constitutional changes and advisory referendums/Initiatives on other matters. Their Parliaments (national and cantonal) are elected via PR and their Government is essentially run by a National Council based upon the strength of the political parties i.e. as a consensual body.

In effect, there would be no need to involve the Courts to decide upon the results of referendums if it were clear what their place was in our system.

There have been a greater use of national votes but also at a local level too over the last few years. We don’t expect the thirst for more to dry up. Clearly however there are MP’s who oppose referendums, seeing it as a threat to their parliamentary power, and now some citizens who cannot accept being losers. However, the majority of citizens would support greater use of referendums.

Now is the time to not only increase the number of referendums but to put them on an equal statutory footing with legislatures so that we can begin to introduce real democracy into the UK.