Labour must lead an all-party alliance committed to preventing an Article 50 notification of intention to leave the EU
Writing this in New York just before a US presidential election of global significance, it’s easy to overlook the importance and implications for Britain of the judgement of the High Court requiring the government to get parliamentary approval before it triggers the Article 50 procedure leading to our self-expulsion from the European Union. This article assumes that the High Court judgement will be upheld by the Supreme Court next month, as most (but not all) legal experts expect.
The court’s judgement has been predictably and reprehensibly vilified by right-wing Brexiteers from the prime minister to the Daily Mail, sometimes in terms clearly intended to undermine the independence of the judiciary, a vital ingredient of democracy. It has been misrepresented as a betrayal of the 52% of the electorate who voted for Brexit in the June referendum and an attempt to overturn their vote for leaving the EU. The court’s ruling is nothing of the sort. But it is already prompting shrill demands that parliament must “respect” the referendum result and do nothing that might hinder or delay the government’s Article 50 notification leading inexorably to Brexit. But parliament is under no such obligation, legally, politically or morally, and it’s absolutely imperative that Jeremy Corbyn and the Labour party as a whole should make that crystal clear.
The case for resolutely opposing any article 50 trigger rests on two fundamental assertions: first, that the referendum was legally advisory only and could not override the sovereignty of parliament by binding it to take any specific action in the event of one result or the other; and, secondly, that members of parliament owe us, the electorate, not their obedience to the opinions of a narrow majority in a referendum or otherwise, but their own best judgement of the nation’s best interests, giving due weight to — but not being obliged to conform with — the referendum result. If, as is probably the case, a majority of MPs and peers remain convinced that Britain will be much worse off in almost every way outside the EU than in it, then they have a solemn legal, political and moral duty to vote accordingly, i.e. against any Bill whose purpose is to authorise the government to trigger Art. 50.
It will require considerable courage for Labour to commit itself to opposing any Bill authorising an Article 50 trigger, thereby provoking screams of fake outrage from the right-wing media. But there are two reasons why this position will be perfectly proper notwithstanding the referendum result. First, since the referendum it has become clear that Mrs May’s government is determined to aim for a ‘hard’ Brexit, giving priority to reducing immigration from the EU even if that means Britain losing its tariff-free access to the biggest single market in the world – a policy decision by a new unelected prime minister that no-one can have foreseen at the time of the referendum. Other information, such as the attitudes to Brexit of major EU leaders, has also come to light since the referendum that legitimately affects one’s judgement of the pros and cons of Brexit. Secondly, Labour, committed like other parties to remaining in the EU, was narrowly defeated in the referendum, but political defeat in no way prohibits a party or an MP from continuing to campaign for what it or he/she continues to believe. When Labour loses an election to the Tories, no-one suggests that it then has a duty to support the policies of the Tory government just because it won a majority in the election. Conversely, suppose that Labour won a general election on a manifesto pledge to nationalise all the UK banks (obviously against furious Tory opposition). Would anyone claim that the Tory Opposition MPs thereupon had a constitutional and democratic obligation to vote in favour of nationalising the banks just because more people had voted for it than against it in the preceding election, and regardless of their own beliefs and judgement? Such a demand would rightly be regarded as nonsensical. Labour should stick to its guns: Britain is infinitely better off in the EU than out of it, and Labour has a clear duty to vote accordingly in parliament.
If a Bill to authorise the government to trigger Article 50 were to be defeated in parliament, even if only in the house of lords, the government’s obvious course would be to call a general election on the issue, perhaps in the hope of being able to override the house of lords’ negative vote in the new parliament. If this were to be fought on conventional party lines, it would almost certainly go badly for those of us who believe that everything possible should be done to keep Britain in the EU, since (a) Jeremy Corbyn is unlikely to commit Labour to an unambiguous policy of staying in the EU if Labour were to win the election, even though only that would give the electorate a clear up-to-date choice, and (b) even if he did, Labour under Mr Corbyn’s leadership is almost certainly incapable of winning an election on its own, since only a small minority would vote in such a way as to make Mr Corbyn prime minister. There would therefore be a need for a progressive pro-EU, anti-Brexit alliance to fight the election on a platform of denying the government the power to trigger Art. 50, with support from across the Westminster parties. The Labour leadership should begin now, without waiting for the result of the government’s appeal to the Supreme Court, to talk informally to the LibDems, the SNP, and other pro-EU elements including in the Conservative party, about the mechanics of preventing an Article 50 trigger now that the courts have proclaimed parliament’s right – and thus its duty — to do so.
If however parliament can’t ultimately be prevented from authorising Mrs May to trigger Article 50, the legislation containing that authority must include the condition that parliament must first be satisfied that even after Art. 50 has been triggered, the UK’s notification can be withdrawn (with the agreement of the rest of the EU) if, for example, the agreement negotiated post-Art. 50 turns out to be unacceptable to parliament, or to the electorate voting in a fresh election or referendum on the acceptability or otherwise of the terms of the agreement. Without that vital proviso, parliament would be giving Mrs May and her hard-line Brexit negotiating team carte blanche to sign up for any agreement with the rest of the EU that will satisfy the most extreme Europhobes on the Tory back benches and the shrillest of the xenophobic media, with parliament and the people completely powerless to do anything about it. So the first of many possible conditions to be attached to any Bill authorising Mrs May to trigger article 50 should be that the UK government must first seek an opinion from the European Court of Justice on whether an article 50 notification, once lodged, is irrevocable or whether it could be revoked by the notifying government.
In short: official Labour party policy has long been, and is still, that Britain should remain a full member of the EU. That policy can’t be casually and unilaterally reversed by an ill-considered statement or diktat of Jeremy Corbyn or even Sir Keir Starmer, hitherto apparently a safe pair of hands. An advisory referendum whose result contradicts the considered views of two-thirds of Labour voters, as well as being contrary to established Labour policy, can’t possibly oblige the Labour party to reverse its own policies, any more than it can force individual voters to abandon their long-held belief that Britain’s future lies in Europe,. All of the 48% of the British voting public who believe in Britain’s membership of the EU, and who are convinced that Brexit would constitute a tragic mistake on every level, now have a clear duty to do everything possible to avert that disaster. That includes voting against any Bill seeking to authorise the government to lodge an article 50 notification, now or ever. Any other policy constitutes an unforgivable betrayal of the European vision and of the British people.
8 November 2016
Note: an edited and earlier version of this article appears on LabourList here, where it has already attracted the expected firestorm of criticism from those who think that the referendum result has the status of Holy Writ, as well as some thoughtful support.