May’s repeal act will ensure that Parliament does vote on Brexit

Posted on 2 October 2016

Knowing how to count is the first rule of politics. That favourite maxim of President Lyndon Baines Johnson may rarely be far from the mind of Theresa May, writes Sunder Katwala. A majority of 12 will tend to concentrate the mind of a prime minister, especially when Brexit is the biggest political challenge any British government has faced for half a century, and brings back to centre-stage the issue that has divided the Conservative party historically like no other.

Yet applying LBJ’s maxim overturns some initial post-referendum assumptions about the parliamentary politics of Brexit.

So far, it has been those disappointed by the referendum verdict who have pushed the case for Parliament to have a say, and those who wanted a Leave vote who have stressed the popular verdict, despite their long-standing commitment to parliamentary sovereignty. Novelist Robert Harris had written that: “Presumably the only reason the Govt won’t allow a Commons vote on Article 50 is they fear they might lose it. An astonishing thought”.

Count the votes and it looks very different. Hence Theresa May’s decision to open her first Conservative Party Conference as party leader by announcing that the next Queen Speech will contain a Bill for Brexit. Her decision reflects that there is now a comfortable House of Commons majority for Brexit. Over the party conference season, it has gradually become clear that this majority might be considerably wider than many had initially anticipated.

The proposed Great Repeal Act is as much about the symbolism as the substance of leaving the EU. The prime minister is proposing that Parliament would vote to repeal the European Communities Act, but that would only come into force when Britain formally leaves the European Union – and one purpose of the act would incorporate EU law into British law. And the inclusion of the Bill in the Queen’s Speech would not in itself actually begin the formal process of Britain leaving the EU: negotiations of the departure will begin once the UK government formally notifies the EU institutions and governments of our intention to leave, which it intends to do sometime next year.

But what the Bill will do is to ensure that Parliament is not absent as Brexit begins. Theresa May’s government has defended the principle that triggering Article 50 falls within the government’s Royal prerogative powers. The UK Supreme Court will determine that this Autumn, enabling the government to choose when to deliver the notification of Britain’s intention to leave in the new year. Yet if that decision does uphold the Prime Minister’s right not to involve the House of Commons, she is right to decide that it would be in the interest of both her government and the country to have parliament involved from the beginning.

There was no constitutional need for a House of Commons vote on the Iraq war in 2003. Some years later, many MPs had changed their minds, with the benefit of hindsight about the missing WMD and the lack of post-war planning. But it was important for democratic accountability that every MP had the chance to hear and contribute to the argument – and that every elected representative had to make their own choice and put it on the public record at the time that the decision was made.

Ensuring a central role for parliament in the Brexit process is still more important for three major reasons.

Firstly, involving Parliament closes the argument about the relationship between our representative democracy and the occasional use of direct democracy within it. The referendum was the product of our representative democracy: the House of Commons voted by 544 votes to 53 votes to hold a public referendum. That naturally has created a legitimate expectation among the voters that the majority view will be upheld. Still, a debate and a vote on the principle of leaving the European Union on the second reading of the new bill would give those who believe that an advisory referendum should be ignored the chance to convince their elected representatives of that case. A majority of MPs will clearly accept the public verdict – at which point the argument about the status of the referendum is surely over.

Secondly, this would give Parliament a significant role at this historic moment. Parliament will want to hear the government’s initial vision for Britain after Brexit, its vision of our relationship with our European neighbours, and their priorities for the negotiations to come. While MPs and peers will understand the need for the government to have room to negotiate with EU governments, it will also be an opportunity to agree on processes of democratic accountability and scrutiny during the two years to come.

Thirdly, the key debate and vote on the principle of the Bill, at second reading, should be a significant cathartic moment, that would both reflect on the lessons of the referendum, but also to now move to the next debate about the form that Brexit takes. It is not surprising that many people, on both sides, have found it difficult not to keep re-running the campaign arguments over whether Britain should leave or remain.  It was a polarising campaign, so it was bound to take some time for people to move beyond it, especially during the vacuum between June’s vote and this party conference season, with a vote to leave but as yet few formal steps to begin the process of doing so.

Though it would be a major Parliamentary occasion, the outcome is not in serious doubt. The government will expect the vote on the principle of the Bill to be carried comfortably, even though three-quarters of MPs supported Remain before June, though the parliamentary politics on the details of Brexit may well often be less predictable, both in the Commons and the Lords.

But the votes for the core principle are no longer in doubt. Theresa May and her Chancellor Phillip Hammond are just the most prominent examples of the ex-Remain commitment to all being Brexiteers now. Ken Clarke is now a lone Conservative voice in remaining committed to opposing Brexit by any parliamentary means possible. The most pro-European Conservatives, such as Anna Soubry, now want to influence the form that Brexit takes rather than to reopen the referendum. George Osborne is clear that there was a majority for Brexit which must be respected, while making clear that he wants to avoid a ‘Hard Brexit’

Labour’s re-elected leader Jeremy Corbyn upset some of his party by appearing fully at ease with the result by the morning of June 24th, though he later withdrew his breakfast television call for an immediate triggering of article 50 as a premature mistake. Those of his colleagues who were more invested in the case to Remain spent last week in Liverpool moving towards bargaining and acceptance, with the debate shifting to the red lines which Labour should have, and its position on market access and immigration reform. The case for accepting the referendum result was made by voices across the different party tribes – from former leader Ed Miliband to Liz Kendall on the party’s right to Lisa Nandy on the soft left.  Backbencher Emma Reynolds, former Europe spokesman, has called for a Commons vote onArticle 50, saying she would vote for it.

The LibDem eight would vote against, and the SNP may take more than fifty votes into the no lobby too, given Scotland’s vote to Remain, unless negotiations over Scotland’s voice and opportunities to deepen devolution were traded for support. May would expect the support of the pro-Brexit DUP and the ex-Remain UUP, which now accepts the United Kingdom’s verdict, though the SDLP would oppose moves to leave the EU, citing the Northern Irish majority for Remain. Some individual Labour MPs may choose to cast a vote against Brexit, such as David Lammy who was among the first to suggest a parliamentary revolt against the referendum outcome. But the government’s majority would clearly be secure. How the Lords will respond is harder to predict, but peers would trigger a democratic legitimacy crisis if trying to oppose both a referendum outcome and the view of the Commons – and are much more likely to want to scrutinise the details than to try to overturn the core principle of the vote to leave.

The announcement of a parliamentary bill means that those who wanted a vote on Brexit have won the argument – though this might now prove a somewhat bittersweet victory for those Remain campaigners who hoped that might provide a major impediment to leaving the EU.

Since the government does have the votes, because of the public verdict, it is important to show both the country and the continent that there is now broad political agreement that Brexit will happen – and that the challenge now is how we can get the best Brexit for Britain. The government has said it wants to build a national consensus around its plans for Brexit. Starting the process in parliament is the right way to begin.

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