British Supreme Court rule is a victory for Parliamentary Democracy

British Supreme Court rule is a victory for Parliamentary Democracy

With 8 against 3 votes the British Supreme Court ruled, that triggering Article 50 of the EU-Treaty to start negotiations for Brexit has to be voted in both houses of Parliament. This is first of all a victory for Parliamentary Democracy. Now it is up to Parliament to assert its sovereignty against populism and demagogy. To be clear: the Court did not rule for or against Brexit – it was all about procedure. But procedure is essential for democracy.

Some people believe that referenda have a kind of higher blessing than parliamentary proceedures. This is just wrong. To refer decisions „to the people“ is typical for authoritarian rulers who want to avoid a thorough debate based on expertise about the consequences of their proposals. Yes, sometimes democratic constitutions prescribe referenda in very special cases. In case of revolutionary change where existing constitutions become obsolete, where everything will change, referenda offer a peaceful way to change and avoid violence. Democratic Switzerland even has the majority of laws decided by referenda. The country has a long standing tradition for a thorough debate on each issue – but even then it is open for populist demagogues.

Referenda are democracy without safeguards. As long as we live in a stable parliamentary democracy and do not want to change that we should be extremely careful to give up the safeguards of parlamentary democracy. First of all it is the deliberative power of the members of Parlament that makes decisions safer. They have to debate it, they have to listen to objections from the opposition and often even from their own party. The people have entrusted their MPs with the duty to deliberate on the basis of the best possible understanding of the consequences of all decisions. Referenda are a vote of distrust in the elected parliamentarians.

Human beings can be wrong, so even in Parliament after all debates in three readings in two chambers, after all expert hearings, there may come out a majority for a wrong decision. But there is another safeguard: electoral periods are limited and the poeple can withdraw trust in those who made the wrong decision. This is a great advantage, because „the people“ cannot stage a vote of disconfidence against themselves. Mistakes made through a referendum tend to persist in error because nobody dares to confront people with their mistakes. We all know how fast opinions change in opinion polls. A referendum is a kind of an opinion poll on a certain date – and opinions could change within weeks not to speak of months or years. But after a referendum the execution is left in the hands of politicians who use that ephimeral result against due parliamentary procedure.

The case decided by the British Supreme Court was brought forward by a person who admittedly voted in favor of Brexit, but is not accepting that the government now took everything in its own hands. Now Parliament is free to debate the issue, to look at the consequences and have its democratic vote. It is important that this vote is a responsible vote. That means Parliament would give up its sovereignty again if it only ratifies the result of the referendum. Each MP does now have the full responsibility for his vote to reflect the best interest of his or her constituents. Only the extreme left believed once in an imperative mandate of parliamentarians – that was the basis of the communist soviets after the Russian revolution. Britain has a long standing parliamentary democracy and each MP knows that there is no free lunch – all results bear their own risks – whatever the majority will decide.

I firmly believe that Brexit is so damaging for the British people – including the big majority of those who voted for Leave –  that a responsible vote could only be to discard the results of a referendum based on a campaign of lies and xenophoby. If the vote is the other way round, in favour of Brexit, so be it: in Parliament this has to be accepted as well. Whatever the decision it will not be easy to defend in the constituencies without having new elections beforehand. This will be especially hard for the Labour party, where Corbyn is asking the big majority of pro-EU MPs to vote against their conscience for Brexit. But it may also make Conservative voters think twice, if they really want to support candidates that are (as John Major characterized them in 2013 at Chatham House a few weeks after David Cameron’s Bloomberg Speech) „Tory in their head, but UKIP in their heart“.

The debate in a new electoral campaign will be more informed than it was before the referendum, because now we know, that there is no Johnson’s cake to be kept and eaten at once, on the other side there is no immediate breakdown of the British economy, but surely severe consequences in mid-term, that jobs will be lost in the country, that the numbers on the Leave-campaign bus were just „alternative facts“ – the new word for ouright lies, and there will be no money left for the NHS when Britain becomes a tax haven for the rich and the wealthy only, the rest of industry being destroyed in a Thatcher 4.0 move.

In Brussels many now fear that Britain could come back and remain. A lot of people there already became accustomed to the idea of a European Union without Britain stopping ever closer union, vetoeing irresponsible budgets, not participating in the Schengen-Treaty or in the Euro. There is a price for the 27 when Britain leaves, but most are willing to pay that price to get rid of the „querelles anglaises“. The MPs in Westminster should not make it too easy for those in Brussels who begin to find Brexit quite a good idea for the remaining member states. They should vote Remain.

The ruling of the Supreme Court does not prescribe how to vote. It gives Parliament the freedom to vote Brexit, to vote Remain, or to qualify their vote with conditions. Politics means compromise, not dogma. So some of those who think Brexit is better than Remain could at least put strings on the government to safeguard the interest of the people against Tory europhobe radicals. They could make clear that they want a soft Brexit with a status similar to the one Norway or Switzerland have towards the EU. Whatever MPs decide they will have to take into account the trade-off between freedom of movement for EU-citizens in Britain (and Brits on the continent) against the big advantages of remaining part of the single market. It is now clear that you cannot have both.


8 Antworten

  1. Stephen Wright sagt:

    I agree with your criticisms of the referendum as a political instrument. But I am sorry to say that it is illusory to think that Parliament might now vote to remain. Having committed the Original Sin of authorising the referendum on the EU of 26 June, and thereby abnegating its own sovereignty, Parliament will not now vote against the referendum result. (To do otherwise would be to provoke yet further popular disillusionment with the democratic process). There is therefore no doubt that Parliament will authorise the Government to initiate the departure process by invoking Article 50 of the EU treaty (it seems likely that the only dissenter on the Conservative benches will be Ken Clarke).
    Parliament will have more scope to dissent when it sees the outcome of the Article 50 negotiation in (?) late 2018. It is quite likely that this outcome will appear very unsatisfactory to a wide range of UK opinion, especially after two years in 2017-18 of rising prices and interest rates and falling employment. But if Parliament votes down the outcome of the negotiation at that juncture what options will then be open to the UK Government – to cancel the invocation of Article 50 and remain in the EU (highly dubious on legal and political grounds)? to ask for further negotiation with the EU to improve the package (why should the EU agree?)? wait for the EU to impose its own terms (ie humiliation)? or just pull up the drawbridge and decide unilaterally about the terms of the UK’s own withdrawal?
    We shall have to wait and see.

    • GBoom sagt:

      As a matter of fact I have no illusions that Parliament will not vote against the result of the referendum. But still the argument of many parliamentarians that after the Original Sin of authorizing a (non-binding!) referendum there is no way of voting against the result does not convince me. It is the duty of the members of Parliament to debate the advantages and disadvantages of their decisions. The argument that rejecting the result of the referendum would lead to further popular disillusionment must certainly not be discarded. However Parliament should from the start be sovereign enough to look into all other arguments as well. At least there must be a debate about the consequences of Brexit now. If these consequences are seen as damaging for Britain then a member of Parliament could try to tell his or her constituents that they should be disillusioned with the promises of the campaign and not with parliamentary procedure. In the end Parliament must vote on the merits of all arguments. If after a thorough debate a member of Parliament comes to the conclusion that either Brexit is still a good idea, or that he feels unable to explain voting against the referendum result to his constituents, or that she feels the party discipline is more important than the future of the people, or that after all the tilt of the balance just goes 52:48 in favour of Brexit – then the vote is legitimate and should be casted. In the end such a responsible vote may reflect the very narrow difference we saw in the referendum result.
      If Parliament now votes Brexit only to ratify the result of the referendum it abdicates sovereignty a second time. Only if it votes Brexit or Remain on the merits on the balance of all arguments (including the result of the referendum and the form of campaign) it can reassert the responsibility of parliament properly. After two years of negotiations there will be nothing left to vote. Brexit is declared by the invocation of Article 50, the rest is negotiating the transition and the unscrambling of the scrambled eggs. So rejecting the results at that juncture leads to all the questions you mentioned in your comment.

  2. Wolfgang Schultheiß sagt:

    Gut so, Georg! Ich fürchte allerdings, der Zug ist abgefahren. Wäre ein interessantes – und wohl kaum einem Parlamentarier angenehmes – Szenario, wenn das Parlament das Ergebnis des Refrendums „kassierte“.

    • GBoom sagt:

      Ja, der Zug ist vermutlich abgefahren. Nicht zuletzt dank der miserablen Lage von Labour unter Jeremy Corbyn, der ja auch – gleich zweimal – durch parteiinternes „Referendum“ in sein Amt gekommen ist und das als FRAKTIONSVORSITZENDER einer Parlamentsfraktion, der nicht das Vertrauen der Mehrheit der eigenen Fraktion hat. Deshalb muss endlich mal der Kampf gegen die falsche, populistische Sicht von Referendum als Demokratie mit höheren Weihen aufgenommen werden und die parlamentarische Demokratie verteidigt werden. Wenn Parlamentarier es irgendwann einmal als selbstverständlich ansehen würden, das Ergebnis eines auf Lügen basierten Referendums zu kassieren, dann wäre viel erreicht.

  3. 100% agreed except that I hope EU 27 will be gracious when we eventually retract our Notice once citizens begin to discover the full cost of the alternative facts!!

  4. Herbert Quelle sagt:

    Informed. Worth reading. I believe nevertheless Brexit will happen. Bad for the continent, especially Germany, but far worse for the UK. Tragic!

    • GBoom sagt:

      You are right – I have no illusions that Brexit could be stopped in Parliament. But to make the point: not least thanks to Jeremy Corbyn, himself elected by a kind of referendum by people pretending to be linked to Labour but not having the confidence of his own parlamentary party, the wrong view that referenda are something higher than parliamentary procedure is also paralyzing the Labour Party. What I want to make clear is that this means an abdication of parliament. It is high time to fight for parliamentary democracy against this form of populism.

  5. Kanta sagt:

    Great Analysis ! Thank you .