Our elected representatives must now stand up and say “No, prime minister”

The clock is ticking down to hard Brexit, and no one knows what is to become of us. There is no parliamentary majority for Theresa May’s deal; and still—it seems—no clear majority for a People’s Vote. Yet all but the European Research Group know that a no-deal exit from the EU would be a disaster: for jobs, growth, trade, social cohesion, peace in Ireland, and our place in the world.

The prime minister must put her latest proposal to the Commons on 26^th February. Although she has (apparently) decided to permit no formal meaningful vote until 12th March, just 17 days before our intended departure from the EU, the debate on 27^th February will be a pivotal moment for parliament to assert its proper role.

In 2015, MPs were ambivalent about their function in a representative democracy. Both parties supported legislation to allow an advisory referendum on leaving the EU, without clearly articulating what would be done if the advice was to leave. Although the referendum was constitutionally advisory, it was given considerable political force. Since the vote, parliament has treated itself as being required by the referendum’s marginal and equivocal advice, to leave the EU, in the name of “respecting” the result, but still with no consensus as to how this should be done or on what terms.

Having confused our structure of representative democracy with the language of direct democracy, many agonised MPs, who know full well how hard their constituents will be hit by Brexit, especially hard Brexit, are treating themselves as somehow “bound” to follow “the will of the people” off the edge of a cliff. So they passed legislation which commits us to leaving the EU on 29th March this year, with or without a deal, unless something turns up. Anything else, I have been told by hand-wringing Labour and Tory MPs, would damage faith in democracy.

But it is too late for that. Faith in democracy is already in jeopardy. The most damaging form of Brexit would place it in grave danger. If our elected representatives do not very soon get a grip, it is not hyperbolic to say that people will die because MPs could not decide. Consider for example the potential shortages of medicine that could result from congestion at ports in the event of no-deal; or the risk of the renewal of sectarian violence if there is a hard border in Ireland.

We are here because so many lost sight of parliament’s representative role in our democracy. Being extremely mindful of that role now is the best way for MPs to begin the long, slow task of restoring respect for that democracy and our political class, as well as saving us from hard Brexit. In a representative democracy, an MP’s duty is to act in what they believe to be the best interests of their constituents. Since all but a tiny minority of MPs know that no-deal Brexit would cause Britain unspeakable harm, it is their duty to say so, and their duty to avert it. And it is also their duty, so far as they can from this point, to start to restore trust in the democratic process. So any solution must reflect and respect what “the people” think now. That is an unknown; and—even if there were time for one—it would not be solved by a general election.

My suggestion to parliamentarians now is this. First, Yvette Cooper, Oliver Letwin and (it now seems) several members of the cabinet are right to recognise that we need more time.  MPs should vote to require the prime minister to ask the EU to extend Article 50. This should avert the risk of accidental hard Brexit, and enables us to focus on the two realistic options now on the table.

Secondly, they need to vote for the Cooper amendment fast, because the two-year negotiation period expiring on 29th March can only be extended by the unanimous agreement of the EU27. Although it may have escaped the notice of many Britons, those 27 countries are democracies too: they need time to decide, and it is not a given that they will all agree. So we cannot leave it to the 11th hour to make this request.

And finally, it is clear that the EU will not (and should not) extend Article 50 because the UK a would like a little more time to gaze at its national navel. If we ask the EU27 for more time so as to reach a democratic consensus, we need to explain how that will be achieved.

Parliament must create the solution. By passing the EU (Notification of Withdrawal) Act, it was parliament which authorised the prime minister to trigger Article 50 and to negotiate a withdrawal deal. It was parliament that overwhelmingly rejected that deal; and parliamentarians also overwhelmingly oppose a hard Brexit. So it is for parliament now to propose a plausible mechanism to break the current constitutional impasse.

When they get the opportunity, MPs should vote for the formula suggested by Labour MPs Peter Kyle and Phil Wilson. The Kyle amendment is one which invites MPs to agree to pass the May deal on the proviso that it is only adopted if it is accepted by a second popular vote. This is principled and pragmatic. It recognises the prime minister’s role as the country’s negotiator. It enables MPs to perform their proper representative role, and to steer the nation they represent from a disastrous cliff-edge Brexit, while putting back to the people the question of whether we should leave, now that the terms on offer are known.

It may be that the prime minister is right, and a second referendum would show that people want to leave the EU, even on the basis of the terms she has agreed. But that is far from clear, and she has no mandate to create a national crisis. It is false to suggest that the only options are the prime minister’s deal or no-deal, and parliament should not allow that false choice to be become a default. MPs are our representatives, and now is time for them to stand up for the national interest, and to say “No, prime minister.”

Helen Mountfield QC, Principal, Mansfield College, Oxford