The UK’s constitution being unwritten does confer some flexibility advantages. However, our constitution’s fundamental weakness is the lack of checks and balances. (If you want to see how to get it right, I recommend reading the US Constitution in full.)
The consequence is that a Prime Minister possessed of a large Parliamentary majority can do almost anything. Sometimes this is good as with Margaret Thatcher transforming our economy. Sometimes it is very damaging as with Tony Blair’s constitutional vandalism. While MPs always have a moral duty to vote according to their conscience, few feel able to defy the party whip. Accordingly, when the governing party has a large majority, conscience voting is normally futile.
However, when the government has a small or zero majority, then the decision of each individual MP becomes much more salient.
The UK and the EU
Most would agree that the key issue facing the UK today is our future relationship with the rest of the EU. This matters for all aspects of our economy, and for our national security given the need for cooperation against terrorism. On 29 March 2017, the UK served a departure notice under article 50 of the EU Treaty. Accordingly, in just over 21 months’ time, the UK will leave the EU, with or without a departure agreement, unless all 27 other countries unanimously agree to extend the notice period or unless the article 50 notice is revoked, if indeed it is revocable. The government ignored my advice to first confirm the reversibility position before serving the notice.
Despite some of the rhetoric, leaving the EU without a departure agreement would be seriously damaging to our economy, wrecking cross-border supply chains, with problematical consequences for air transport and for our nuclear power industry to name but a few of the many problems that arise when you tear up agreements accumulated over 45 years and replace them with blank paper.
What do Brexiteers want?
It is quite clear what Remainers, like me, want. That is for the UK to remain a member of the EU. However, while all Leavers, by definition, want to leave the EU, they are not agreed on what being outside the EU means.
What should the Prime Minister do?
If the Conservative Party had won a three-figure majority, the Prime Minister would in practice have been able to railroad her vision of Brexit through the Party and through Parliament. The feasibility of successfully negotiating that desired outcome with the rest of the EU, in a situation where the balance of negotiating power rests overwhelmingly with the EU (as explained in my piece on ultra-hard Brexit) would still remain an open question.
With the current composition of the Commons, obviously a different approach is required. Our Government’s negotiating position cannot be determined only by a conversation within the Conservative Party, or even a conversation within just the Conservative Party + the DUP. All it would need is a few Tory MPs to decide that they cannot support it for the negotiating position to unravel.
Instead, the Government should hold talks with:
The goal would be to arrive at an agreed negotiating position that generally represents the wishes of the whole of the UK. The EU has carried out in essentially the same exercise with the other 27 countries of the EU, so I do not regard the task as being impractical or unrealistic.
The elephant in the room
After negotiations with the rest of the EU have been completed, the final agreement must be brought back to Parliament. I find it inconceivable that our negotiators would bring back a deal that was worse than leaving the EU with no deal, given the catastrophic consequences of no deal.
However, Parliament also has a duty to ask itself another question. “Is leaving the EU on these negotiated terms better for the UK than remaining in the EU?”
If Parliament concludes that remaining in the EU is preferable to leaving on the negotiated departure terms, it should instruct the government to seek to do that. Despite the attempts of many Brexiteers to paint the outcome of the EU referendum as a formal “instruction to the government to leave the EU”, it was no such thing. The referendum had no legal consequences, and as I explained in my piece on Article 50, the government and Parliament are free to ignore the referendum result if they wish to do so.