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.

Brian Barder
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.

12 Responses

  1. Pete Kercher says:

    Well put, Brian: How could I disagree? But is it really feasible that Labour can lead any such move right now? I’m afraid I am rather sceptical. I shall be watching the evolution of the Luxembourg ALDE MEP Charles Goerens’ proposal before the European Parliament for citizens of ex-member states (naming no names of course) to be entitled to retain their EU citizenship, but as a reserve I shall be applying for Italian citizenship as soon as work commitments allow me to stay at home for a couple of weeks, so that I can do the background paperwork.
    Shall I keep my UK passport? At the moment, that depends very much on whether your successive governments’ antics continue to make me feel as utterly embarrassed to have such a government as my nominal representative as the incompetent shower led by May. I truly never thought I’d live to see the day when the UK was led by such a band of hopeless, clueless charlatans. They make even some of Italy’s recent governments look professional by comparison (yes, even Berlusconi: at least he knew which way he was going, even if I didn’t like it!).

  2. Tony Westhead says:

    When a majority of the public have clearly voted in favour of Brexit, I think it would be wrong and foolish for politicians  to vote against it and attempt to obstruct the Government’s decision to trigger Article 50. There may be a case for someone like Ken Clarke to vote against it on the ground that he was opposed to the Referendum in the first place ;  his constituency voted Remain ;and he has personally consistently been pro EU. Likewise the SNP might be justified I voting against, but if it was voted down there would have to be a General Election and the country would vote for Brexit again ! However , possibly we might be given a better idea of what Brexit means . I think it very unlikely that the High Court decision will be overturned by the Supreme Court. Basically it was an action for Judicial Review to ensure that the Government proceeds in a legally correct manner without affecting the policy issue  either way .

  3. Tony says:

    I am afraid that Parliament really cannot afford to ignore the result of the Referendum on 23rd June. What would be the point of holding a Referendum if our rulers can ignore the result ? The fact is that Brexit won.

  4. Pete Kercher says:

    Oh dear, there we go again with this ridiculous mantra: “a majority of the public have clearly voted in favour of Brexit”.

    What, exactly, constitutes “the public” in this case? In a democratic society, I suggest that the relevant constituency comprises all those people whose lives are directly affected by the outcome. That constituency is correctly not identical with the constituency entitled to cast a vote for a national election, because this second constituency comprises those who pay their taxes to the UK exchequer, thus should rightly have a say in how their taxes are spent, and whose everyday lives are governed by the laws enacted by the UK Parliament.

    So the referendum constituency should have included UK citizens who are long-term citizens of the EU and EU citizens who are long-term residents of the UK (this second group, in my opinion, should be entitled to vote for Parliament anyway). I found it most revealing that EU citizens from Cyprus, Ireland and Malta were entiled to vote, but not those from the other 24 member states, thus perpetuating the UK’s ridiculous and anachronistic pretence at Empire within the EU.

    As a UK citizen who has been living outside the UK for 38 years, established in another EU member state on the basis of the rights accruing to me by virtue of the EU treaties, so directly interested, I was disenfranchised in this referendum, my rights and interests ignored and trodden down shamefully for a country that purports to be the home of democracy. So I beg to differ at least in this regard.

    Then of course there is the not unsubstantial issue of what constitutes a majority: in my opinion, something under 52% of those voting hardly constitutes the kind of rock-solid foundation on which to rebuild a society after the trauma of Brexit (or non-Brexit, whatever happens in the end) and the attitude of blatantly sweeping aside the 48% who voted for the other alternative (not to mention those who either did not vote or, as in my case, were unjustly deprived of their right to vote) is hardly tailored to generate social harmony in the future. Utter folly.

    “Clearly voted in favour Brexit”? Really? Watching from abroad, and occasionally visiting, I find myself encountering about as many versions of Brexit as there are people espousing it: the complete lack of clarity is astounding and is bested only by the gall of those who assert that there is any clarity whatsoever in this embarrassingly ramshackle procedure.

    What many of Brexit apologists in Labour fail to realise is that they have swallowed the Tory party’s ploy hook, line and sinker: while Labour berates itself about majorities and some supposed democratuic mandate to force the country to commit harakiri, the Tories will use this to reconsolidate a party that was coming apart at the seams. That is and has always been the only thing that interests them in this shameful exercise and far too many in Labour cannot even see that far as to get their act together and oppose it!

    Which is why, although (nor for the first time) I support an admirably sensible suggestion from Brian, I am afraid that, in the real world, the initiative will have to come from elsewhere, because Labour is in no position to tackle, let alone solve, anything at all at the moment.

  5. Peter Martin says:

    If Labour takes this advice it will be making the same mistake as the US Democats. Many on the “progressive left” are puzzled about the rise of Trump and the vote for Brexit. They are part of the same problem.

    It will all look clearer from a historical perspective in about 50 years time! But, right now I think both are linked to what Prof Bill Mitchell has written about as “the Demise of the Left”.

    So instead of the Labour Party, and at least to some extent the Democratic Party in America, being parties for the workers they’ve become what I would term progressive liberal parties.

    In a social context, it has meant that we’ve made great strides towards eliminating racism and homophobia in society but, in an economic context, that has translated into neo-liberalism. ie the uncritical acceptance of the “market” and capitalism.

    This has left many in society becoming confused and just wondering who it is that truly represents their interests. It doesn’t take many switching sides to have the end result we now see.

  6. Peter Martin says:

    @Peter Kirchner,

    “As a UK citizen who has been living outside the UK for 38 years, established in another EU member state…”

    Presumably you’ve been there long enough to acquire voting rights there? I too have lived and worked outside the UK and although I was entitled to a vote, as anyone is for a certain time (maybe ten years?), I chose not to exercise it as I wasn’t paying taxes or any making other contribution.

    I wouldn’t criticise anyone who took a different view, especially if they intended to be away temporarily, but 38 years? Come on, get real. What do you expect? A  lifetime of two sets of votes? One in your country of birth and another where you choose to live?

  7. Pete Kercher says:

    @Peter Martin
    The points you raise are interesting and deserve a response:

    1. I fully agree with your decision not to exercise voting rights in the UK, since you weren’t paying any taxes or making any other contributions. And, I would add, your everydaylife was not governed by the acts of the UK Parliament. In fact, for the same consistent reasons, I too did not exercise any voting right in the UK for as long as it lasted (15 years).
    On the other hand, as a UK citizen, I do not in fact have and have not acquired any voting rights in the country where I live, except for local (municipal) elections, in my village of 1200 souls, and European elections. This in practice leaves me (like millions of other intra-EU long-term migrants) to all intents and purposes utterly disenfranchised.
    Since I agree with you 100% on the issue of enfranchisement of those who pay taxes and contribute to the society where they vote, I have always believed (this is not recent) that long-term UK residents (shall we say a minimum of 5 years?) of other EU member states should have full active and passive enfranchisement. Obviously, the same should apply to long-term EU residents of the UK, in a properly reciprocal relationship.

    2. So it follows that in fact no, you presume wrongly: I don’t have and have never had two sets of votes. In fact, like millions of others in our supposedly democratic Europe, I only have duties, but very little in the way of civic rights… and certainly no vote worth talking about.

    3. My approach has always been based on the definition of the constituency of those affected, as outlined in my previous comment. Since I believe in practising what I preach, I have never asked for and would not now accept a vote for the UK Parliament as long as I live outside the country. What I did expect, on the other hand, was that the UK’s successive governments would have had the basic common decency and sense of democratic fair play to uphold the rights of those of us who have acted on the very words that were enshrined in the treaties signed by HMG, according us freedom of movement and establishment. I have more than a sneaking suspicion that HMG has always been far more interested in safeguarding the interests of the City, with regard to the free movement of capital and finaincial services, than the interests of the free movement and establishment of citizens, for whom Whitehall has but scant regard. As an EU citizen, I was prepared to forego my democratic rights (while campaigning for the vote for long-term residents, as outlined above), since I felt I could trust HMG not to pull the rug out from under my feet.

    Does that change your perspective of the situation in which I and many others like me find ourselves?


  8. Peter Martin says:

    @Pete Kercher,

    Well yes it does somewhat change my perspective. I would say that anyone living in a country for a certain period of time should be able to vote. In Australia the requirement that after just two years of legal permanent residency anyone could apply for citizenship which gave them full voting rights.

    I must admit I waited slightly longer than that so I missed the first couple of opportunities to vote. That was entirely my choice. I had no quarrel with their legal requirement.

    I’m sure it would be the same in the UK too. We offer everyone who is legally settled here the right to citizenship after a certain time period which gives them the same voting rights as everyone else. I doubt we’d have any quarrel with anyone from Ireland or Cyprus who chose not to take out UK citizenship and couldn’t vote as a consequence.

    So it is 15 years for overseas voting rights for UK citizens? That sounds more than generous. Does that include the right to vote in a referendum too?

  9. Pete Kercher says:

    The time cap on all voting is 15 years, Peter. While I would never have availed myself of any UK vote for its Parliamentary elections, I would have used it to vote in the referendum, because it is having a profound effect on my life. But I repeat: the principle is that this should have been a reciprocal arrangement between EU Member States. I’m sure you’ll agree that there is (for the UK, was before 23 June) a rather different relationship between the EU’s member states, with the creation of EU citizenship, than between, say, the UK and Australia, whose relations are historical and affectionate, as it were, rather than as closely institutional as those within the EU.

  10. robin fairlie says:

    For God’s sake, either connect with the vital issue raised by this post, or shut up. As Brian indicates, the question of Brexit is fundamental to the well-being of the UK and all of us who live in it. Destroying Brexit, by whatever means, is the only sane objective, and the only point worth discussing, among sane people, is the means of achieving this. The failure of Remainers to recognise this from the start is humiliating. What are we afraid of? Rupert Murdoch? The Daily Mail? Nigel Farage? We live – or so I was brought up to believe – in a representative  democracy. Edmund Burke, the highest Tory of them all, taught us what this means 250 years ago: it means MPs – and everyone else – acting, and voting for what they firmly believe is in the interests of their country, unswayed by opinion polls, referenda, parties, pressure groups, or anything else. Any other course of action is a cowardly, improper dereliction of duty. I see no hope of the Labour Party playing – as a party – any significant role in this struggle; what is required is a coming-together of all those MPs who understand the stakes, and who have enough backbone, and sense of duty, to take a stand against the hypocritical May and her laughable team of Brexiteers.

  11. formula57 says:

    Why would the MPs with the “solemn legal, political and moral duty” have abandoned their duty by asking the referendum voters to make the decision on EU membership if they then wanted or expected to make the decision themselves?

  12. Brian says:

    Parliament invited the electorate to express an advisory opinion, not a decision. Recent legislation setting up referendums has included explicit wording that made their results binding on government and parliament.  The EU referendum law did not. It was advisory only. The then party leaders who rashly promised to act on the result, by implication regardless of the size of the majority, are not now in office. The referendum has served its purpose by giving us a snapshot of the opinions of those who were sufficiently interested to vote. It demonstrated that opinion was, and probably still is, almost evenly divided. To claim that this constituted a binding obligation on a government whose party had been against Brexit to go ahead with a total reversal of the policies of all UK governing and other major parties for nearly half a century, a reversal in which they did not believe and against which they had solemnly warned, strikes me as far-fetched, to put it as charitably as I can.