EU Referendum

EU Referendum: Parliament the ultimate arbiter


Never more has it been more important to distance ourselves from Vote Leave, to make it known that we do not share their values and that they do not represent the "leave" campaign as a whole - much less the wishes of the nation.

This need emerges from an extraordinary interview on the Marr Show yesterday which had David Cameron pledging to take the UK out of the Single Market in the event of a Brexit vote. This was despite Andrew Marr suggested that we could stay in, with Cameron refusing to entertain the idea, "because the 'leave' campaign had specifically rejected that option".

The segment of the interview started with Andrew Marr reminding the Prime Minister that he had promised to "carry out the wishes of the British people" if we vote to leave. The trouble is, Marr then said, is that "the wishes of the British people" is a rather indistinct thing - it's a blunt "yes" or "no".

Cameron responded by saying that if we vote to leave the Government would carry out the instructions of the British people. That, Marr averred, would put the Prime Minister in "a very strange position". He'd be doing things like introducing an Australian-style points system that he didn't believe in. As for, the Single Market, though, Marr said, "there is room for a Prime Minister to negotiate that".

It was here that the role of Vote Leave came to the fore. "I think one of the most important moments in this campaign", Cameron said, "was when the 'out' campaign said they wanted to leave the Single Market". He continued: "They didn't have to make that choice. They've made that choice. And what the British public will be voting for ... would be to leave the EU and leave the Single Market".

What the Prime Minister is doing, therefore, is using Vote Leave as a proxy for the entire British public. However, this is a small group of individuals with singular views, put in place by an unelected Electoral Commission to carry out the role of lead campaigner. This can't in any way be taken to represent the will of even those who favour Brexit – much less the entire British population.

In this, the extent of the public preference is limited to what is on the ballot paper. This asks where we want to leave or remain in the EU. There is no scope for inferring from that what the general will is, in relation to the exit settlement.

While leaving is one question, the nature of that exit settlement is an entirely different question, and one to which everyone is entitled to a view – even those who voted to remain.

Despite this, Cameron told Marr that, on the basis of a "leave" vote, he would be impelled "to negotiate a trade deal from outside with the European Union". Canada is in the process of doing that, he said. It's taken seven years and this is why I think there's a very real risk here of a lost decade for Britain. Because leaving the EU, you've got to negotiate your exit – it took Greenland three years to do that.

Piling on the agony, Cameron asserted that we would not only have to negotiate a trade deal with the EU, we'd then have to negotiate trade deals with the 53 other countries covered by our trading arrangements with the EU. We would be "looking at a decade of uncertainty".

To Marr, parts of this were "beginning to sound Alice in Wonderland". The Prime Minister had said that leaving the Single Market would be putting a bomb under the British economy and now he was saying: "I will now detonate the bomb".

Here again, we got the mantra: "I must accept the instructions of the British people. That is what a referendum is about. But if we leave the EU, and the German finance minister was very clear, you're either 'in' or you're 'out', leaving the Single Market, you've then got to negotiate a trade deal". From outside, Cameron then maintained: "They'll never give us a better deal on the outside than we'll get on the inside".

At this point, Marr disagreed. "You could do a deal which gave us access to the market, accepting freedom of movement., and we paid in", he said. "You wouldn't like it, it wouldn't say it was as good but you would not be putting a bomb under the British economy. As Prime Minister, you could do that … and negotiate that".

With utter finality, though, Cameron countered with the simple statement: "The 'leave' campaign have specifically rejected that option". This makes it absolutely imperative that we disown Vote Leave, making it absolutely clear that they do not speak in our name. They have a bureaucratically-awarded mandate to lead the campaign. That gives them no mandate to define the shape of the exit settlement.

Interestingly, Cameron himself makes the point for us, as he went on to agree that the "Norway solution" gives "access to the Single Market". By this measure, he acknowledges that the European Union and the Single Market are different things. One can leave the one and stay in the other.

Should we actually leave the EU, this is a mandate to take us out of the EU. It is then for the Government to negotiate our exit package, on the nature of which there is no democratic mandate. Within the Flexcit scenario, we do actually discuss – albeit briefly – the possibility of putting the outcome of the Article 50 negotiations to a referendum, although that creates its own problems.

Constitutionally, the Government is entitled to invoke Crown prerogative as its authority to conduct negotiations. Then, taking the cue from Article 218 TFEU, the resulting settlement will have to be approved by Parliament under the terms of the Constitutional Reform and Governance Act 2010 (see S.25). There is then the matter of the 2020 general election although that does not empower the electorate to reject any settlement.

Even if the Government wishes to argue that an Article 50 settlement is not an international agreement requiring ratification within the terms of the CRGA, it seems to me that Parliament will still play a pivotal role, even if it has to use the threat of a vote of no confidence, to ensure it is consulted.

Rather than referring to Vote Leave for his "instructions" on our negotiating position, therefore, Mr Cameron should be looking to Parliament. In Flexcit, I have suggested the setting up of a committee of both Houses, which in turn would take evidence in order to reach its conclusions. Given that there has been scarcely any discussion on an exit settlement, this would be the very least one might expect.  

On that basis, to rule out continued participation in the Single Market after an exit vote is premature and, possibly, unconstitutional. Short of a new referendum, Parliament will be the ultimate arbiter on this issue.