Westminster must choose between leaving the EU and retaining the UK

What is more in Westminster’s interest – to follow through the result of the referendum by leaving the EU, or to secure the survival of the United Kingdom? Jo Murkens continues his discussion on Britain’s constitutional arrangement arguing that the power-sharing with Scotland, Wales, and Northern Ireland since 1997 has changed the UK constitution, allowing space for each nation to see itself as politically autonomous. History shows that the Union can be preserved only by building bridges, not by burning them, he warns.

Westminster, London. Public domain.

Can Parliament lead Britain out of the Brexit mess? At the first Prime Minister’s Questions after the referendum, PM David Cameron told parliament that ‘keeping the United Kingdom together is an absolute paramount national interest for our country’. Ironically, EU withdrawal cannot be said to be in the UK’s interest. The next prime minster would be well advised to pay special attention to the different outcome of the referendum in Scotland and Northern Ireland if he or she wishes to keep the UK together.

Constitutionally, the Westminster parliament is the sovereign law-maker of the United Kingdom. It is the sole institution empowered to repeal the European Communities Act 1972, which makes EU law binding in the UK. Parliament also maintains the authority to amend the devolution legislation for Scotland and Northern Ireland, which would be required in the event that the UK withdrew from the EU.

Politically, however, the days where Westminster can legislate on behalf of Edinburgh and Belfast, and expect to get away with it, are over. The day after the result was announced Deputy First Minister Martin McGuinness called for a border poll on a united Ireland. First Minister Nicola Sturgeon immediately talked up the prospect of a second referendum on Scottish Independence.

It is therefore incumbent upon the Members of Parliament to interpret the referendum result. MPs are not delegates who merely implement a decision made by others. If they were, they could not be held accountable for decisions made by parliament. Rather, MPs are representatives. They make decisions by weighing constituents’ views with the long-term good of the union as a whole. That exercise of political judgment explains why they are politically accountable. Before authorising the next prime minister to trigger Article 50, our MPs should be fully conscious that the future of the UK is at stake.

Strictly speaking, our MPs could even ignore the result of the referendum altogether. After all, they had the choice to make it either binding or non-binding. The 2011 UK-wide referendum on electoral reform, for example, contained an obligation on the government to legislate in the event of a ‘yes’ vote. No such provision was included in the EU referendum legislation. Parliament left it non-binding precisely to retain ultimate and independent legislative authority.

Parliament cannot so easily ignore the result, however, as a political matter. A better path would be for MPs to read the indeterminate referendum result in a different way.

MPs must recognise that the UK is split about withdrawal. A slight overall majority of people voted to leave (52-48), but that tally fails to reflect Britain’s established constitutional arrangements. First, the UK is a ‘family of nations’: two nations voted to leave, but two voted to stay. There is, therefore, an alternative argument to the dominant narrative that a majority of people voted to leave. Second, an argument based on ‘the will of the people’ cannot plausibly be invoked to renounce the constitutional doctrine of parliamentary sovereignty. Parliament is sovereign, and it must exercise its legislative power by considering the ambiguous referendum result as well as the long-term integrity of the UK.

We have been here before. In 1764, the British government imposed the Stamp Act (a new form of taxation) on the American colonies. It led to protests and unrest. Confusing the constitutional right to pass a law with the political wisdom to do so, the British government proceeded to make a bad situation worse.

The repeal of the Stamp Act was followed by the Declaratory Act 1766. It re-stated British sovereignty over America by asserting that parliament ‘had hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America … in all cases whatsoever’. The rest, as we know, is history.

Richard Bourke argues compellingly that the British could have continued to include American membership of the Empire through some form of constitutional accommodation. Instead, he notes that ‘successive British governments stoked the mood of intransigence, animated by an overblown sense of imperial pride’. Instead of making political concessions, the government demonstrated its constitutional strength: ‘the more the metropole opted to display its might, the more it undermined its moral authority. Imperial militancy thus led to imperial impotence’.

What lessons can be drawn from history? The power-sharing arrangements with Scotland, Wales, and Northern Ireland since 1997 have changed the UK constitution. Legislative powers have been transferred from the Westminster Parliament to assemblies in Cardiff and Belfast, and the Scottish Parliament in Edinburgh. Although the Westminster parliament retains the right to pass laws for any part of the UK, the reality is that those regions see themselves as politically autonomous.

In 1766 the priority of the British government was to secure the empire. In 2016, the priority for the next prime minister ought to be to secure the United Kingdom. Asserting the constitutional right of Westminster to withdraw Scotland and Northern Ireland from the EU ignores the reality that Westminster is no longer politically capable of enforcing that right. The more Westminster asserts its strength, the more it will lose its authority. The Union can only be kept together by building bridges, not by burning them across the English Channel.

Note: This article was originally posted on Open Democracy. It gives the views of the author and not those of Democratic Audit or the LSE. Please read our comments policy before posting.

—

Jo Murkens is Associate Professor in Law at the LSE. He was previously a researcher at the Constitution Unit, UCL, where he led the research on the legal, political and economic conditions and consequences of Scottish independence.