Over the weekend I went on a nature ramble in an attempt to get all this Brexit stuff out of my head.
The attempt failed. Instead I started to think about the limits to the mandate provided by the referendum.
Take this thought experiment:
It is 10 September 2016 and, freshly elected by Conservative party members, the new Prime Minister is being briefed on the negotiating options.
“It’s bad news I’m afraid Prime Minister”
says a civil servant
“All 27 EU countries are going to fail to agree to any terms in the negotiation. Our covert intelligence confirms that they are all very serious on this point.”
“That’s a surprising and perhaps somewhat unbelievable show of unity between the fractious EU”
says the Prime Minister
explains the civil servant
“but this is a thought experiment.”
“What are the consequences then?”
“Well, as you know Prime Minister, once Article 50 is triggered if we fail to agree a deal we exit the EU on WTO terms, which means no access to the single market tariffs on any trade with the EU, no agreement on the status of British citizens in the EU and a host of other things none of them, from a trade position, ideal”.
“This seems very bad”
“Well yes Prime Minister, this is literally the worst thing that could happen if Article 50 is triggered. That’s why it’s useful for a thought experiment”.
So, knowing that we will exit with no deal, should she trigger Article 50?
Does the referendum give the Prime Minister (or conceivably Parliament) the mandate to trigger Article 50 under these circumstances?
There’s a legitimate argument that it does. This was a foreseeable outcome when people voted so they could and should have taken it to account when casting their vote.
There is a legitimate argument that it doesn’t. The referendum was advisory, we have a parliament to deal with the detail. One of the protections of a representative democracy is we expect our representatives not to undertake actions even if they have public support if they are profoundly against the national interest.
Of course the EU is going to negotiate with us. We’re not going to crash out on WTO terms.
But when we press the Article 50 button we don’t know, for sure, what will happen.
So does the referendum mandate the pressing of the button regardless of the consequences? And how can those consequences be reasonably assessed?