Sunday, April 14, 2024
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Deal or No Deal – let the people decide


I WISH to argue for a second, binding referendum to choose between the final draft Withdrawal Agreement and leaving the EU without one. I hope this case will be brought to court and succeed.

There must be no option to remain. The decision to leave the European Union has been comprehensively confirmed:

· The 2016 Referendum, in which a record number of citizens participated, was preceded by oral and (in the Government’s pamphlet) written assurances that the result would be binding. The majority was for leaving, by 52 per cent to 48 per cent.

· In the 2017 General Election 579 Conservative and Labour MPs gained their seats on manifestos that committed them to exiting the EU. 

· Parliament passed the European Union (Withdrawal) Act 2018 on the Third Reading (17 January 2018).

· An attempt in the Lords to pass an amendment allowing a second in/out Referendum was decisively defeated on 30 April 2018. 

Quite rightly, ex-PM Theresa May told Parliament last week that any attempt to overturn the 2016 result would be the ‘most egregious con-trick on the British people’. That is putting it mildly: if Parliament breaks this, it breaks its moral right to govern. Pace Matthew Parris, there is no revisiting that part of the nation’s decision.

Yet that is only the first part; the second is to address the terms of withdrawal.

In the ‘Miller I’ case of January 2017, the Supreme Court ruled that unlike with other international agreements, the Government could not withdraw from the Lisbon Treaty without reference to Parliament, because constitutional issues were involved. Leaving entailed the loss of certain EU member citizen rights, and ECA 1972 had not expressly conferred a power on the Secretary of State to alter them. Hence the right to a ‘meaningful vote’.

This raises the question of whether Parliament is fit to make that choice without reference to the people, whose interests it supposedly represents. The 2018 Withdrawal Act was passed 324:295 (52 per cent to 48 per cent again!), but if the division had been according to the number of constituencies in which the majority voted Leave in the Referendum, the Ayes would have been 406; if all Conservative and Labour MPs had honoured their manifesto commitments, the Ayes would have risen to at least 579 (or 89 per cent).

Why these discrepancies?

First, Parliamentary parties juggle issues for electoral advantage. Currently the SNP and LibDems want an extension to the Article 50 negotiations, an amendment to the Fixed Term Parliament Act to allow a mid-term General Election to be authorised by simple majority, and an early GE date, in order to unseat Johnson as PM and ‘remove the risk of a devastating no-deal Brexit’, so leaving us with no alternatives. Labour opposes an early election outright ‘unless a no-deal Brexit is taken off the table’. The Prime Minister thinks a GE will give him a secure mandate; the Opposition parties think they may gain instead, but use Johnson’s desire for an election as a lever to close down options on an issue of the most profound importance.

Second, politically there is internal division and philosophical confusion. In part this arises from the nature of the EU itself, which seems to stand for international co-operation and free trade but at the same time is a protectionist trading bloc, and through enlargement has undermined pay levels and security of employment for its Western European workforces. Hugh Gaitskell explored the ambiguities for Labour in 1962. 

Third, individual MPs and Lords may have personal interests that could be affected by Brexit – investments, business dealings, possible future employment and preferment etc – even, under certain circumstances, EU staff pensions. Rudd and Letwin are already making money on the talk circuit. 

Fourth, there are foreign powers who have long taken an interest. For example, the US Democratic Party is siding with Ireland against a hard border, thus combining America’s CIA-backed policy of ramming us into Europe with their old green-Chicago-River paddiwhackery. 

We ordinary people feel more and more like Lewis Carroll’s Oysters, trying to gain the attention of the Walrus and the Carpenter while the latter are interested only in having enough bread and butter to eat them with.

The consequences of Brentry and Brexit are usually couched in economic terms. Even Wilson bribed us in 1975 with the promise of ‘FOOD and MONEY and JOBS’ (we got more expensive food, less money and fewer jobs) while not telling us that we were eventually to be absorbed into a sprawling new country. If the debate were to centre itself on democratic principles, our Remain politicians would be embarrassed at their own exposure, like Adam and Eve after eating from the Tree of Knowledge.

For it is clear that the electoral system is dangerously flawed. Democracy depends on the acquiescence of the losers. The winners do not win convincingly – no party has held power on the basis of a majority of votes cast nationally since 1931;  in the 2005 GE only 220 MPs won an absolute majority in their various constituencies and in 2010, only 217. Conscious of the exclusion problem, Parliament debated electoral reform in 1931, but failed to agree because the Commons wanted AV and Lords preferred PR. In the 2011 Referendum both major parties opposed the Alternative Vote because they felt it would cut into their portions of the cake, and let the LibDems starve amid plenty.

So, Parliamentary seats do not accurately reflect voter preferences, and MPs and Lords feel free to ignore them anyhow. Brexit and the choice of ratification or rejection of the terms cannot safely be left to this Parliament, nor can a General Election with all its complexities properly resolve the matter.

We have already accepted the principle that this is no ordinary issue but a great constitutional one. Even our entry into the EEC had to be validated post facto by a referendum, though the result was skewed by political pressure on Fleet Street at a time when there were fewer alternative sources of information and analysis. If Gina Miller won her case because our rights were involved, then we should also remember that joining the EEC not only conferred rights, it took them away, and what we lost thereby in democratic terms is far more than what we gained. Implicitly our leaders had agreed to a progressively huge loss of power – not only the British State’s over its own affairs, but of the British citizenship’s over its rulers.

And we now know for certain that Heath lied. He knew from 1970 on that the project was for a superstate. How many in Parliament knew this? We certainly didn’t – Con O’Neill’s briefing was kept secret for 30 years. It could be argued that lacking Parliament’s and the people’s informed consent, we have never validly been a member nation of ‘Europe’.

As far as my own rights are concerned, I say that HMG no more has the power to strip me of my British citizenship and make me a citizen of the EU than it has the right to make me a Russian or Kazakhstani without my consent.

And because there are aspects of the current draft WA/PD that bind my Government’s hands on many important and enduring sovereign matters such as foreign policy, it will not be valid unless I and a majority of my fellow citizens agree.

There must be a Meaningful Vote; a People’s Vote; a New, Confirmatory, Second Referendum – on Deal or No Deal. If there is not, I don’t know whether our politicians realise the peril they and we are in.

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Rolf Norfolk
Rolf Norfolk
Rolf Norfolk is a former teacher and retired independent financial adviser.

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