Is Brexit too dangerous to uphold?

Jo Murkens is a Professor of Law of the London School of Economics and Political Science (LSE)

The most urgent task for the UK’s next prime minister must be to uphold the clear popular mandate for Brexit. Or is it?

An overall majority of people voted to leave (52-48); the margin was 3.8% – close, but clear. The referendum turnout was almost 72%, and 33 million people voted. It was the highest turnout in a UK-wide vote since the 1992 general election. Referendum results in the UK are treated as effectively binding, although technically it was only advisory. In David Cameron’s parting words, the results contained an ‘instruction that must be delivered’.

Brexit now looks inevitable. Without devastating her reputation and legacy, on what grounds could the next prime minster tell 17,410,742 voters that their preference for the UK to leave the EU will be ignored? But there are a number of constitutional reasons why the next government ought to treat the outcome of the referendum with caution. All the reasons link to the abstract idea of ‘national interest’.

The first constitutional reason is that the UK is a parliamentary democracy. The popular will is mediated through Parliament. To treat an advisory referendum as binding overlooks parliamentary sovereignty and the representative function of the MPs. The party whip could, admittedly, force MPs to vote to leave the EU. But the major political parties and the vast majority of MPs in Westminster are unionist and pro-EU. Unless the political composition changes dramatically, there will be no majority for Brexit.

The second reason reflects the character of the UK constitution. Technically, Westminster could legislate to withdraw the UK from the EU. But the process of devolving legislative and executive power to Scotland, Wales and Northern Ireland since 1997 has transformed the UK from a power-hoarding to a power-sharing system of government. The traditional Westminster system and old constitutional principles have been augmented by new institutions and new models of autonomous government. The current crop of regional politicians and voters are less likely to accept diktats from Westminster than previous generations. Ironically, it is precisely this new constitutional settlement, which was designed to cement the place of Scotland, Wales and Northern Ireland in the UK, that may inadvertently have paved the path for the disintegration of the British state.

The regional split on the issue of EU withdrawal is the third reason for constitutional caution. England and Wales voted to leave, but Scotland voted 62-38, and Northern Ireland 56-44, to remain. Both the First Minister of Scotland Nicola Sturgeon and the Deputy First Minister of Northern Ireland Martin McGuinness immediately challenged any mandate to take Scotland and Northern Ireland out of the EU against their respective will. New border controls between Northern Ireland and the Republic of Ireland would damage the local economy. They would also threaten two decades of peace. An unprecedented referendum on Northern Ireland leaving the UK and re-uniting with Ireland is now being openly discussed. A second referendum on Scottish independence may also be coming into focus.

On those three grounds, Brexit cannot be said to be in the national interest. For the late political theorist Ken Minogue, the national interest is a formal idea that addresses the question: ‘What ought we to do? What is the best course of action for the state?’ If there ever was a case for all Westminster politicians, including the prime minister, to develop a consciousness for the national interest it is Brexit. The decision if and when to trigger Article 50 and begin formal negotiations for withdrawal gives rise to issues that go beyond a questionable mandate of direct democracy. It raises questions about the nature of our representative democracy as well as the foundations and the future of the UK constitution.