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MPs and Peers need to protect Parliament’s powers in quest for People’s Vote

The Government has misunderstood the shift away from the old power politics of distant hierarchy to a new age of interconnected individuals and social movements write Clive Goldthorp and Tim Beyer Helm. 

This emerging era needs enhanced representative democracy – with updated referendum rules – plus stronger parliamentary scrutiny of Ministerial decisions: a true sovereignty of the people.

Back in 1968, protesters took to the streets of Europe to challenge the established order.  Fifty years on, pro-Europeans will gather in London to demand the People’s Vote.  On the second anniversary of Brexit (Saturday 23 June) the largest ever pro-EU march will call for a say on the final deal.  Whether this is through a General Election or a referendum, the British electorate deserves the right to exercise sovereignty and to take control of their own destiny.

Before then, battle lines are being drawn for further Government confrontation within the House of Lords.  Defeats in the House of Lords on the thorny issue of Britain’s withdrawal from the EU daily raise the stakes for British PM Theresa May, who now prefers the Cameron Commons gambit of abstaining rather than risking defeat.

Brexit brinkmanship will continue for as long as politicians persist in placing party before people and fail to act in the national interest.

The British electorate, business community and Continental friends want clarity, honesty and certainty.  Instead, Brexit raises more questions than answers over human rights, free movementEU citizen rightsthe Irish border, economic turbulence, and loss of British influence beyond Brussels.  Even the Government’s determination to stay outside the Customs Union and Single Market seems less strong and stable as the economy falters and new research shows firms are unprepared for Brexit.

With parliamentary ping pong between Peers and MPs probable, one should remember that the unwritten British Constitution has two fundamental principles: the Sovereignty of Parliament and the Rule of Law.  The Government, MPs and Peers forget these at their peril.  Preserving parliamentary sovereignty should form common cause for all British Parliamentarians: it is central to both the people’s and the nation’s future.

The June 2016 EU Referendum was, as a matter of law, advisory.  Yet, as a matter of policy, David Cameron deliberately chose to be politically bound by the outcome.  By maintaining this questionable stance, Theresa May sacrifices the UK’s globally-respected representative parliamentary democracy in the name of Brexit.  Including unacceptable wide-ranging delegated (Henry VIII) powers in the European Union (Withdrawal) Bill (abbreviated to the Bill below) compounds this constitutional affront.

This week, the House of Lords debates seven significant political and constitutional amendments to preserve Parliament’s sovereign powers – giving Peers a unique opportunity to re-assert the Sovereignty of Parliament and primacy of the Rule of Law.  Since this session of Parliament runs from 2017 to 2019, the Government’s use of the Parliament Acts 1911 and 1949 is curtailed.  In addition, arguably, the Salisbury-Addison Convention does not apply to minority Governments: moreover, the Henry VIII Clauses are so “constitutionally unacceptable” as to justify their Lordships adopting a robust position on the Bill.

During the passage of the Bill through the House of Lords – putting aside the polite formalities and good humour normally associated with the upper house – nearly all Peers see the Bill as threatening the UK’s current constitutional settlement.  Five groups of amendments to limit the Henry VIII powers are tabled for debate during the current Report Stage.  If passed, these should effectively address that issue.

Supported by all sides, the Amendment 49 new Clause provides for crucial “Parliamentary approval of the outcome of negotiations with the European Union”.  The Amendment 50 new Clause providing for “Parliamentary motions on a referendum” has been tabled by the Liberal Democrats, but is not backed by Labour.  Amendments 51 to 55 relate to the existing Clause 9 (as amended in the House of Commons by Amendment 7 – the “Grieve amendment”).  In particular, Amendment 51 is a cross-party amendment led by Labour’s Lord Monks requiring the seeking of parliamentary approval for the Government’s Phase 2 negotiating mandate.

Amendments 49 and 51 should (if both are enacted) address the problem with Clause 9 highlighted in the Institute for Government’s (IfG) recent Voting on Brexit paper.  However, Amendment 50 poses two problems: aside from “time constraints on a new referendum” which the IfG has identified, there is growing disquiet about the Electoral Commission’s ability to oversee the referendum process.

As Cambridge Analytica whistleblower Christopher Wylie recently wrote in The Guardian, the real issue is “about upholding the [R]ule of [L]aw.  The UK is about to embark on the most profound change to its constitutional settlement in a generation.  We must be absolutely certain that this is being done on a proper legal basis”.

Ongoing investigations into the conduct of Vote Leave during the 2016 EU Referendum and potential breaches of the Political Parties, Elections and Referendums Act 2000 (PPERA) should not be ignored.  Given the backdrop of whistle-blowing and investigative reporting, there can be no certainty that either Amendment 50 or any new standalone Referendum Bill would command a majority in Parliament.

The Electoral Commission’s fitness for purpose to supervise the EU Referendum in June 2016 is being questioned by the Judicial Review Proceedings brought by The Good Law Project.  Subsequent disclosures in the House of Commons of the “Cambridge Analytica Files” – plus to the Electoral Commission and the Information Commissioner’s Office – have heightened public unease with current referendum rules.  As Lord Rennard has warned “Before we have another [G]eneral [E]lection or another referendum, we must put our electoral laws right because they are clearly not fit for purpose.”

Although the House of Lords looks set to reinforce the meaningful vote and lay down a timetable for action, more should be done to ensure the Government listens to the people and Parliament.  Outlined below is a belt and braces approach that, in an era of falling Government standards, provides additional open options in contrast to the current Government obfuscation and opaqueness.

These would involve tabling a new version of Amendment 49 modelled upon S2 of the Fixed-terms Parliament Act 2011 (FTPA) to trigger a People’s Vote.  This can be invoked when the initial “meaningful” vote on the Withdrawal Agreement package takes place so the Government is required to return to the negotiating table instead of dragging the nation over the cliff edge.  The Motion could also be tabled once the Government has completed any re-negotiation in order to maintain full parliamentary scrutiny and proper consultation throughout the process.

The House of Lords can amend the Bill to ensure that, to quote the Prime Minister’s Mansion House speech (2 Mar 2018), “Parliament would remain ultimately sovereign”.  The House of Commons can get “meaningful” votes on the Withdrawal Agreement package (as defined in Amendment 49(9)) and promote the People’s Vote.

By requiring the People’s Vote if the Government cannot obtain a parliamentary majority for the final Withdrawal Agreement package or for any attempted re-negotiation, this revised Amendment 49 ensures Parliament and the people are sovereign.  Moreover, as the former Irish Taioseach John Bruton stated in January, the British Government can also request an extension to the two-year period in Article 50 TEU at any time between now and the UK’s supposed departure from the EU at 23h00 pm GMT on 29 March 2019.

To underline the Sovereignty of Parliament, a statutorily-binding fifteen key tests for the Withdrawal Agreement package could be included.  Furthermore, following calls by former Prime Ministers Sir John Major and Tony Blair plus former Foreign Secretary David Miliband, Amendment 49 could be modified to provide specifically for free votes.

Political parties can always seek a mandate for a further referendum on the terms of any post-General Election re-negotiated Withdrawal Agreement package.  But that may only be possible after a comprehensive review of the Electoral Commission’s composition and powers followed by, if necessary, the amendment or replacement of the PPERA.  Areas to consider include turnout thresholds, robust independent fact-checking and demographic impacts.

European Research Group chair Jacob Rees-Mogg MP already told The Guardian’s Anushka Asthana a possible vote on a Customs Union Clause in either the Trade Bill and/or the Taxation (Cross-border Trade) Bill could not be “a confidence issue”.  Rees-Mogg added: “It can’t be a confidence motion.  The [G]overnment would have to take specific action beyond that vote which may not demand the support of MPs.”  The only way to pass a no confidence motion, under the Fixed-term Parliaments Act, is to vote on exactly that motion in the House of Commons.  Rees-Mogg and the other 61 ERG MPs should therefore have no objections to creating constitutional clarity by the inclusion of a No Confidence Motion provision in an amended version of Amendment 49.

DExEU Ministers The Rt Hon David Davis MP and Steve Baker MP both confirmed MPs can amend the Government’s motion on the final Withdrawal Agreement package.  This admission means the Government has little or no alternative to be both legally and politically bound if the revised version of Amendment 49 was included in the Bill –  providing all interested parties with a clearer steer on eventual outcomes.

Any attempt by the Government to table a No Confidence Motion pursuant to Ss 2(3) and 2(4) of the FTPA in rejection of the Bill as amended by the House of Lords would be met with political derision.  The only way in which a General Election could be called at that stage of the Brexit process would be under Ss 2(1) and 2(2) of the FTPA – in that scenario, “the motion is passed on a division, [if] the number of members who vote in favour of the motion is a number equal to or greater than two thirds of the number of seats in the House (including vacant seats)”.

The House of Commons can thus take control of the Brexit process by denying the Government the requisite two-thirds majority and so prevent a General Election from being called before the EU-UK negotiations on the Withdrawal Agreement package are finally concluded.

This Brexit process is a multi-dimensional game of legal, political and psychological chess in which the British people are too often pawns on ideologues’ boards: consequently,we should seek a parliamentary checkmate and a People’s Vote.  As the clock ticks towards Continental midnight, the way to avoid disaster is by extending Article 50 to gain extra time.  Time for reality to sink in with more young people plus disenfranchised British expats joining the electoral register, and for excluded EU citizens to be embraced.  The millions living in limbo deserve to be heard and British parliamentary democracy needs to be restored.

Clive Goldthorp is a former public sector lawyer who now provides advice about the legal aspects of the Brexit process on a pro bono basis. Tim Beyer Helm is currently on sabbatical from being an adviser in the European Parliament.

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