Twice in a week the House of Lords has defeated the government on its EU Withdrawal Bill. The defeat on Monday night was in effect over the most fundamental issue of all: who, ultimately, should decide whether Britain does indeed leave the EU?  MPs will, of course, have the opportunity to throw out the successful amendment when the bill returns to the Commons later this month but will they? The Labour Party supports it and an unknown number of Tory Remainers poised to do so too – which means the government may well not get its way. Some see a full-blown constitutional crisis looming. So who should take the final decision on Brexit?

Under pressure from MPs to give them some say over the final decisions on Brexit, the government some time ago conceded that MPs would be given a ‘meaningful vote’ on the final deal concerning Britain’s departure from the EU. Ministers made it quite clear what this amounted to. MPs would be offered a ‘take-it-or-leave-it’ choice on the deal so that if MPs backed the deal, Britain would leave according to its terms. If they rejected it, Britain would still leave the EU - but with no deal. Fundamental to the government’s approach is that Britain will leave the EU on 29 March 2019 willy-nilly. That decision has already been taken, it insists, first by the voters in the referendum of June 2016 and then last year by MPs when they overwhelmingly backed a motion triggering Article 50 of the Lisbon Treaty, the means by which the departure of a member state from the EU is set in motion.

But peers voted on Monday night by 335 to 244 in favour of an amendment to the EU Withdrawal Bill giving MPs the opportunity of a third option (beyond accepting the deal or leaving without one) that would stall the departure altogether if either no deal had been struck between Britain and the EU by departure date or MPs rejected the terms of the deal. Ministers would, in effect, be sent back to the negotiating table, a process that, in theory at least, could go on indefinitely.

The proposer of the successful amendment, Viscount Hailsham (formerly the Tory cabinet minister, Douglas Hogg) said it provided MPs with a ‘genuinely meaningful’ vote rather than the much more restricted ‘take-it-or-leave-it’ vote proposed by the government. But critics of the amendment saw it as a ruse to prevent Brexit altogether since it would provide MPs with the opportunity to delay exit from the EU indefinitely.

Very strong feelings and some extreme analogies were expressed on both sides. The Liberal Democrat peer, Lord Roberts, backed the amendment and  said of the government’s refusal to allow Parliament the option of holding up Brexit: ‘My mind went back to Berlin in 1933 when the enabling bill was passed in the Reichstag and that bill transferred the democratic right from the parliament to Adolf Hitler’. His remark was dismissed as ‘irresponsible rhetoric’ by a government minister. On the other side, the Tory peer, Lord Fairfax, said: ‘This house is a cosy cabal of Remain. This is a wrecking amendment. It is designed to delay, frustrate and ultimately block Brexit. Those proposing and supporting it are playing the role of a fifth column for Mr Barnier and EU negotiators. They are doing his job for him.’

Critics of the amendment pointed out that it would encourage EU negotiators to take a more uncompromising line, knowing that a tougher deal for Britain might lead to its changing its mind altogether. Lord Howard, the former Tory leader, said that giving Parliament this veto on leaving ‘reveals appalling lengths to which the die-hard Remainers are prepared to go to achieve their aims.

Government ministers accused peers of trying to ‘thwart the will of the people’ and Liam Fox, the International Trade Secretary, said that ‘it is not acceptable for an unelected house to try to block the democratic will of the British people.’ But if the House of Commons were to accept the amendment that argument would fall by the way, and there is a reasonable chance that it will do just that.

Jeremy Corbyn, the Labour leader, said Monday night’s vote in the Lords was a ‘hugely significant moment’. He supports the amendment arguing that ‘Parliament must be sovereign on this issue and take the final decision’. His shadow Brexit secretary, Sir Keir Starmer added: ‘Under no circumstances can the prime minister be given a blank cheque to crash the UK out of the EU without a deal.’ If enough Remainer Tory MPs also back the amendment then the government would be defeated and be forced to give MPs the opportunity to hold up Brexit.

Should this happen, many would see it as amounting to a constitutional crisis, pitching those who argue that the people’s decision in the referendum must be sacrosanct against those who argue for parliament’s ultimate sovereignty. How might that be resolved? One solution being offered is that Parliament should vote to hold another referendum.

Those who advocate this say that the first referendum was, in effect, blind: it offered voters only the crude choice of whether or not to leave the EU but without their knowing the terms on which we might leave. They argue that another referendum is a ‘repeat’ referendum but an entirely new one that would be about whether or not to leave on the terms being offered. Putting that choice back to the people is the only way to proceed democratically, they say, and to get over the supposed constitutional crisis.

One suggestion is that in holding a new referendum we might follow the French model of eliminating options. That’s to say, a referendum would be in two halves, a fortnight apart. The first referendum would offer three options and the one that gets the fewest votes would be eliminated. Those would be to leave the EU on the terms of the deal agreed, to leave without a deal or to remain in the EU. Two weeks later the public would decide between the two remaining options.

But opponents of any further referendum argue simply that we have already had one and we must honour the outcome. To have another would smack of making the recalcitrant British keep retaking the exam until they came up with the ‘right’ answer (as interpreted by the Europhile elite). Even to suggest another referendum, they argue, would cause immense resentment among those who thought they had been asked their opinion, had given it and expected the result to be acted upon. The ‘Them and Us’ antagonism in British society would be intensified, they claim. Even some who believe the decision to leave the EU was disastrous think that reopening the basic question again would risk such an outcome.

So what should happen? Is the Lords’ amendment a sensible move to allow MPs to hold up Brexit if they don’t like the terms on which we might end up leaving, or is it a wrecking amendment to stop Brexit altogether?  Should Parliament have the power to overturn Brexit or should the mandate of the referendum override it? And should there be another referendum once we know the terms of the deal by which Britain will leave?

Let us know your views.  

 

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