Philip Johnston, Madeline Grant, Sammy Wilson:
There’s little evidence the public has changed their mind, but try telling that to Remainers or the EU
Friday is Brexit Day, or at least I’m pretty sure that’s what it says in the EU Withdrawal Act (2018). Yes: there it is under the heading General and Final Provision, Clause 20: “In this Act ‘exit day’ means 29 March 2019 at 11.00 p.m”. So, that’s clear then. We can light the bonfires in celebration if we are Brexiteers or drown our sorrows in prosecco if Remainers; the law of the land states unequivocally that by Saturday morning we will once again be an independent, sovereign nation.
Would that it were so straightforward. Despite the date being written into statute and endorsed twice by overwhelming majorities in the Commons, it has been changed to April 12 or May 22; and it will almost certainly not happen on either of those dates. Moreover, this has not been done by Parliament voting to change the law but by decree from Brussels.
True, a statutory instrument (SI) tabled by the Government requires MPS and peers to agree to change the date. But even if they were to vote down the SI, we would still not leave on Friday because the extension of Article 50 is legally binding whether we like it or not.
As Theresa May told MPS on Monday: “The date for our departure from the EU has now changed in international law. Were the House not to pass the statutory instrument... it would not have any effect on the date of our exit.” This statement passed almost without comment even though it encapsulates what this entire argument is supposed to be about: who governs?
Kate Hoey, the Brexit-supporting Labour MP, asked the Speaker to rule on “what the constitutional position would be if the statutory instrument to change the date that is already in our legislation were not accepted by the House? Does EU law overrule our Parliament?” Well, yes Kate. Is that not the issue here, one largely drowned out by a sterile argument over trading relationships, tariffs and chlorinated chickens? For most Brexit voters this whole business is about sovereignty.
At a national level this has been the case since the passage of the European Communities Act 1972, which was to have been repealed on Friday but now won’t be. Its constitutional impact is reflected in that statement from the Prime Minister above. It does not matter what you want; if it conflicts with EU law it can’t be done even if it is decreed by Parliament.
We have known this for years. In 1991, a Spanish fishing company called Factortame claimed an Act requiring British-registered ships to be 75 per cent British-owned breached EU law. The European Court of Justice found in favour of the fishermen and the Law Lords struck down the legislation. For the first time, the Crown in Parliament was prevented from applying national law.
As a result of last week’s extension deal, even if Parliament said it wanted the UK to leave on Friday we can’t because the new date supplants the old whatever domestic law says. Those marching in London last Saturday to overturn Brexit or those signatories to the petition demanding a revocation of Article 50 are presumably happy with this state of affairs and doubtless voted accordingly in the referendum.
But more people believed the erosion of their nation’s sovereign right to make its own decisions was no longer palatable, which is why they want to leave. Yet now they find that the minority insists that its view is the superior one and must take precedence over the scepticism of the majority. By what democratic measure do they consider this to be justified?
In the Commons on Monday, a number of Labour MPS who had marched on Saturday said the event had shown that “the people” wanted a second referendum. One said that “a million stood in Parliament Square demanding their right to be heard”. Other estimates put the number at half that. But whatever the figure, the irony seems to be completely lost on those who would seek to deny the democratic expression of 17.4 million people.
As a Comres poll on Sunday showed, most people think Parliament intends to thwart Brexit, as might well happen. Yet there has been little change in the view of the electorate despite all the trials and tribulations involved in getting there. The pollster Sir John Curtice has detected a slight move towards Remain, with support at around 55 per cent, but not one that would necessarily change the outcome. Michael Heseltine on the Today programme yesterday said: “There is no doubt at all that public opinion is moving quite significantly now.” But there is no evidence to support such an assertion.
Yet on this flimsy basis many Remainers are pressing for the revocation of Article 50 and the cancellation of Brexit. Again, they see no contradiction here between insisting that their own (minority) view must trump that of the majority expressed in a referendum. Mind you, in the series of indicative votes in the Commons today every option could fall; and revocation – if it is voted on at all – will be the least popular because Parliament is too terrified of the electorate to overturn the result of a plebiscite even if it can be done unilaterally by executive order.
Easier still, if disruptive, would be to leave on the day we said we would; but that choice has been taken away and the preparations to do so were never sufficiently advanced. Nor is there any prospect whatever of leaving without a deal – either on Friday, next month or next year. Sensing this, Tory Brexiteers hitherto implacably opposed to Mrs May’s deal are talking of backing it as the “least-worst alternative” provided the Prime Minister agrees to step down.
The logic of this defeats me. If you think the Withdrawal Agreement is bad for the country, surely that obtains whether or not Mrs May stays in No 10. Moreover, since when has it been the job of parliamentarians to lumber the country with something they know to be damaging because the alternatives are worse? This is hardly a principled position. In any case, most voters reject Mrs May’s deal so why would the Commons back it? In the absence of anything else, MPS might agree to a lengthy extension of Article 50 not least because it postpones having to make a decision. If so, then on March 29 next year – the first anniversary of what should have been Brexit Day – we will still be in the EU.