What if the government wanted to stay in the EU?

Theresa May, prime minister - what if she changed her mind?

Theresa May, prime minister – what if she changed her mind?

The referendum on 23 June was only advisory. A majority of those who voted may have voted to Leave, but that result was not binding.

Had the vote in the electoral reform referendum been in favour of AV, by contrast, the legislation that created the referendum would also have implemented the result. That referendum had a binding outcome.

There was no such automatic provision in the legislation for the EU referendum. There could have been, but there wasn’t. It is the absence of this provision that has led to the current court case on whether the government has the power to implement the result of the referendum on its own, by triggering Article 50, or whether a parliamentary vote is needed first.

The reason for the fight is that the government had declared that it will implement Article 50 and take Britain out of the EU even though a large majority of MPs were on the Remain side. It would be pushing it to say that all those Remain MPs are still against Britain leaving the EU, in the light of the 52-48 result, but even so, parliament (and the House of Lords in particular) is certainly less favourably disposed to Brexit.

The issue at stake in the court case is a fundamental constitutional principle. I think we can usefully illustrate it by reversing the facts.

Imagine that parliament was in favour of leaving but that the government was not. The prime minister was endlessly finding reasons not to trigger Article 50 – weeks and months were passing with Britain remaining an EU member, subject to the jurisdiction of the unelected European Court of Justice, depriving the NHS of £350 million a week. What could parliament do?

The answer, if we consider this from the point of view of constitutional principle, is nothing. To exercise the royal prerogative is a matter for the government and not the parliament. If the government refuses to act on the matter, then there is nothing to be done.

The people have spoken, parliament agrees, but constitution says no.

Wouldn’t that be a democratic scandal? Wouldn’t that be the negation of electoral democracy?

And if it’s true one way, it must be true the other. We are talking about a constitutional principle, here, and not a matter of political tactics.

If the government is really interested in parliamentary democracy – and there are times when I wonder – then this legal case shouldn’t even be a fight.

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