Why British MPs must play Brexit role

So there is a certain irony in prime minister Theresa May’s insistence that the House of Commons should be shut out of the Brexit negotiation process, meaning that UK MPs will potentially have less say in the process of Britain leaving the EU than their counterparts in national parliaments across the continent.

The government argues that the so-called royal prerogative, which used to reside with the monarchy, gives the executive the right to bypass parliament. It’s obscure, arcane and quintessentially British.

A legal case against the government, brought by London-based financier Gina Miller, had the last of its first three days in court on Tuesday (18 October).

Their case rests on the claim that individual government ministers have no legal power to trigger Article 50 of the Lisbon Treaty to leave the EU without the prior authorisation of parliament. Attorney general Jeremy Wright presented the government’s case in court on Monday.

A definitive decision by the three presiding judges is unlikely. Whether Miller or the government wins the decision, the loser will take their appeal to the UK’s supreme court for a judgement in December.

A futile exercise it may be, but Miller et al vs David Davis (the Brexit minister) will keep constitutional law experts in demand.

The government’s lawyer James Eadie appeared to reveal a bit of flank when he told the court on Tuesday that “the government view at the moment is it is very likely that any such agreement will be subject to ratification”. Currency traders were sufficiently excited to stop selling sterling, which gained a cent against the dollar and euro.

Red herring

Yet it’s still a bit of a red herring. The key question is whether MPs should have a say in what Brexit looks like, not whether parliament should vote on whether to trigger Article 50 or on a ‘take it or leave it’ deal in a couple of years time.

“We are asking for MPs to have the right to have a say in directing a government with no mandate as to the form that Brexit should take,” says Stephen Phillips, a Conservative MP and barrister who voted Leave.

Part of the government’s justification for its hard-headed approach is that it does not want to give a ‘running commentary’ on its negotiations with the rest of the EU, but its main argument appears to be that MPs will block and undermine all attempts to sever Britain’s ties to the EU.

The first point is understandable although, in practice, the idea that ministers from the UK and other EU countries won’t be talking to the press during the negotiations is silly.

The notion, however, that MPs would use their involvement to block the referendum result is pretty far-fetched.

“We are all Leavers now,” said Miller in a BBC interview last week.

The reality is that Remain supporters have accepted the June result. The referendum result cannot be undone by MPs employing barrack-room lawyer tactics. The government pamphlet sent to all UK households before the June poll could not have been clearer in its statement that “this is your decision. The government will implement what you decide.”

Tactical misjudgement

The chances that Conservative and Labour MPs would gang up to defy the will of the electorate, and get away with it, are non-existent. There would be rioting in the streets if MPs turned round and denied the result of such a bitterly fought referendum.

Many Remain supporters have indicated that they will sit the entire process out rather than try to influence the government’s negotiations. That might seem like a cop-out - a dereliction of duty. Yet there is a logic that Brexit should be negotiated by those who campaigned for it.

Besides, a botched Brexit deal that ends up isolating Britain diplomatically and weakens its economy would keep alive the prospect of Britain re-joining the bloc at a future date.

Shutting off any debate simply hardens the political divide. May’s intransigence prompted Scottish First Minister Nicola Sturgeon to threaten the nuclear option of a second referendum on Scottish independence.

Using legal technicalities to frustrate MPs from doing holding the government to account - the job, surely, that they were elected to do - is a tactical misjudgement. Having railed against the iniquity of decision-making by ‘grey suits’ in Brussels, Brexit by executive decree would hardly be a triumph for democracy.

Benjamin Fox, a former reporter for EUobserver, is a consultant with Sovereign Strategy, a London-based PR firm, and a freelance writer