I Introduction
By Robert Tombs
Brexit has always been about the sovereignty of the nation. It has now become just as much about sovereignty within the nation.
Who or what is sovereign — who or what has the final say — is a reality of history and politics more than a question of law or theory. The test of who is sovereign is who would ultimately be obeyed. Simply declaring oneself to be sovereign does not work. If, for the sake of argument, the House of Commons passed a law declaring itself the sovereign, would it be effective? It tried it in 1649, but its claim depended on the support of the army, which soon lost patience and threw the MPs out – ‘take away this bauble’. It tried again in 1766, and the American colonists rebelled.
The test of who would ultimately be obeyed is one we must hope never to have to apply, because to do so would be a sign of political and constitutional breakdown – something which, despite the absurdly inflammatory language that has now become normal, we are far from seeing. In a normally functioning democratic nation like ours, sovereignty — or to be more precise the exercise of sovereign powers — is divided between institutions.
Montesquieu classically defined the ‘separation of powers’ as the hallmark of a free government. British government — unlike that of the United States — has never conformed exactly to this model, but broadly speaking it does. Indeed, Montesquieu based his theory on British practice. The Crown governs, through ministers, but since the Glorious Revolution of 1688 it does not make primary law. Parliament legislates, but since the fiasco of the Puritan Commonwealth it does not govern. The Courts interpret and apply the law, but do not make it. Each has a share of sovereign authority.
The principles of parliament’s share were defined in the writings of the great Victorian constitutional lawyer A.V. Dicey, but he makes it clear that its sovereignty applies solely to legislation: parliament can make or unmake any law, and none of its laws can be overridden by any other authority.
Let us leave aside the obvious point that parliament’s legislative sovereignty is curtailed by adherence to the European Union and by the European Convention on Human Rights. Let us assume for the sake of argument that Dicey’s idea of Parliamentary sovereignty still applies in full. It has never meant executive authority nor (since trial by parliament was abandoned) does it include judicial authority. It means the supreme authority to make laws, ‘neither more nor less’ in Dicey’s words. It can force governments to resign, but it cannot govern.
What we have seen over the last few years are reckless attempts to blur this fundamental distinction: to induce the courts to make political decisions, and to find ways of letting parliament make policy. We see this again now in acute form.
Fundamental to these attempts to bend the constitution is the claim that parliament is the all-powerful sovereign body which can legitimize any of its own acts. This claim is generally accompanied by historical assertions that “parliamentary sovereignty” is the bedrock of our political system, and superior to the popular will expressed through a referendum.
However, direct popular participation in crucial political acts has been a crucial and decisive part of our history since time immemorial. Until the twentieth century, not all could participate equally, but acceptance that popular consent was necessary to legitimate authority has always been a foundation of governance. In Anglo-Saxon times there was a ‘council of the English people’, which made laws. The later medieval concept of ‘the community of the realm’ meant not only the barons, bishops and knights who sat in parliaments, but merchants, craftsmen, yeomen, and in some circumstances everyone.
I am not referring to illegal riotous interventions — of which of course there are many, from the 1381 peasants’ revolt to the Suffragettes — but to popular participation in a national political process, albeit often an improvised one. When Edward II (one of England’s worst kings) was deposed in 1327 it was with the support of what a chronicler called ‘the whole community of the realm’, and ‘a great multitude of people,’ who attended sessions in Westminster Hall. The crowd was literally given a voice, shouting for Edward to be replaced. It also had a voice at coronations, when it acclaimed the new monarch — a reminder that monarchy always had an elective element, and that even though this became symbolic, symbols recall important truths. When the Glorious Revolution replaced James II with William of Orange, it was preceded by numerous county and town meetings of citizens — sometimes bearing arms — which directly expressed the popular will. A special Convention Parliament was summoned, as it had been at the Restoration of Charles II, to legalize a great constitutional change. Parliaments, whether specially summoned or not, were instrumental in some of these great events; but parliaments acting with and as the voice of the national community, not separate from or independent of it. When parliaments tried to oppose a clear popular will (as for example in resisting democratic reform), they inflamed popular feeling and in the long run had to give way.
Does this mean that the people, not parliament, the Crown or the courts, are the true sovereign, the ultimate source of authority? I would say — as a historian, not a constitutional lawyer — that it does, and always has: the people do not govern, or legislate, or interpret the law, but they are the source of the authority of those who do. The idea that Members of Parliament, in some hermetically sealed manner, hold ultimate sovereignty on the grounds of their superior wisdom and can therefore oppose a legally expressed majority vote is a strange perversion of history. It also flies in the face of common sense: who could seriously claim that MPs as a body are wiser than the general public? As we are seeing, such a claim in a democratic age is a dangerous and divisive political affront, often accompanied by overtly insulting dismissal of the electorate as stupid, backward, racist etc. This is undermining our whole political and constitutional system.
A major reason why we are a monarchy is to deny to politicians the symbols of ultimate sovereignty: the great majority of people are willing to see the nation’s sovereignty embodied in the monarch (most significantly as commander in chief of the armed forces), but certainly not arrogated to themselves by MPs.
Popular sovereignty is rarely directly expressed in our system. But in 2016 it was. The duty of the state is to put that decision into effect. If one part of the state – parliament – obstructs that decision, the other guardians of sovereignty – the Crown through its ministers, and the courts – have not only the right but the duty to take the necessary legal steps to circumvent that obstruction.
II Why a Referendum is binding in a modern democracy
By Richard Tuck
The basic political theory of our time is that only democratic institutions can carry ultimate authority. This is not specified in law, but no acceptable law can go against it. Even though formally speaking referendums are said to be ‘advisory’, they cannot legitimately be overruled.
Our present problems began in 1972, when Heath forced membership of the EEC through Parliament with the slimmest of majorities and only with the help of Labour rebels. The Labour Party, and some Conservatives, understood from the beginning that membership of the EEC represented a major change in the British constitution. It was not the end of Parliamentary sovereignty in the sense of changing the ultimate location of authority in the UK: as was repeatedly and correctly said by the advocates of membership, Britain could always leave the EEC, and its membership in the last analysis was dependent on an Act of Parliament. But what happened in 1972 was that for the first time Parliament had voted to put in place what was in effect a partial constitution for the United Kingdom which it could not amend. The laws of the EEC had direct authority in the UK over a very wide range of matters unless Parliament chose to repudiate the entire structure. When opponents of membership in 1972 said that membership was an attack on the sovereignty of Parliament, this is what they meant: that the capacity to amend laws had been so severely restricted that in practice Parliament had lost much of its old powers. And just as the government was right to say that fundamentally Parliamentary sovereignty remained intact, the opposition was equally right to say that at every other level it did not.
Because of this, the Labour Party under Wilson when it came to power in 1974 understood that in the new situation a new basis for the legitimacy of this constitutional order was required. Most countries by now have written constitutions which define and circumscribe the powers of their legislatures, and most of those countries put constitutional amendments to a referendum. This practice in fact began in the Anglo-Saxon world, in the newly independent states of British North America, some of which put their constitutions to a popular vote immediately after the Revolution, and it spread from there to Revolutionary France and eventually to many other European states. It was periodically suggested in the UK as a solution to intractable problems like Home Rule, and it was a natural recourse for the Labour Party looking for a solution to the struggle over the EEC. As we have all been reminded by the Speaker of the current House of Commons, the British constitution changes over time, and its changes represent necessary adjustments to the fundamental logic of a new situation. Membership of the EEC was such a new situation, and a constitutional referendum was the logical and necessary response – and it bought peace over the issue for more than a generation.
As we have also been reminded by recent events, the British constitution’s formal character often remains the same under quite dramatic changes – for example, the Queen could still veto a Bill against the advice of her ministers. But she will not, because to do so could not fit what we might call the basic political theory of our time, that only democratic institutions can carry ultimate authority in a state like ours. This is not specified in law, but no acceptable law can go against it. In the same way, it had become obvious by 2011 that major constitutional changes such as Scottish independence or even a far-reaching change to the voting system now had to be put to a referendum, even though formally speaking referendums were (it can be said) only advisory. Once Parliamentary sovereignty had been undermined in practice by membership of the EEC, a supra-Parliamentary method of determining the legitimacy of a fundamental measure simply had to be devised if Britain were to remain a democracy.
In a country where this distinction, between constitutional provisions approved through referendums and ordinary legislation, was expressly built into a constitution, there could be no question of a legislature refusing to obey a new constitutional rule. Nor would it be capable of attaching conditions before the new rule could have legal force. If we apply this general reasoning to our case, the implications are clear. No conditions were mentioned on the ballot paper, and that is all that matters: conjectures about what people were “really” voting for are as useless as conjectures about what people “really” vote for in general elections. A name and a party designation on the ballot paper, and arguably a party manifesto, are what they vote for in a general election, and nothing else. Similarly, in 2016 they voted either to be in the EU or out of it, just as they did in 1975, and no one said then that were implicit conditions attached. (Ironically, if they had said this, the only plausible candidate would have been an implicit understanding that the EEC was merely a free trade area…).
This would not preclude Parliament coming to a new agreement with the EU of a less far-reaching kind than membership, but the agreement would have to be new and not a condition for leaving. That is to say, it would have to be negotiated after the referendum had been implemented, or, if negotiated first, with an absolute guarantee in place that the result of the referendum would be implemented, a guarantee which was completely lacking once the so-called “People’s Vote” campaign received both tacit and explicit support within Parliament. Any other course of action would simply amount to attaching conditions to the implementation of the referendum, conditions which were not on the ballot and were not voted for. The moral of this? No Deal now, but a Deal later, if it then seems necessary, and after a decent period of reflection and negotiation.
III Is Johnson’s prorogation unconstitutional?
By Anna Bailey
Has Boris Johnson done a Charles I and shut down Parliament indefinitely? The headlines this week might lead you to think so.
‘Uproar as Boris Johnson shuts down parliament to protect Brexit plan’, reported the FT. John Bercow called it ‘a constitutional outrage’. ‘It’s tantamount to a coup against Parliament,’ raged former attorney general Dominic Grieve. Nicola Sturgeon called it ‘a dictatorship’.
Yet the reality hardly lives up to the rhetoric. These are the facts: Parliament will return from summer recess on 3 September as planned. Parliament will not sit from mid-September to early October during the three-week party conference season – also as planned and as happens every year.
What has changed is that following the unusually long parliamentary session under Theresa May, Boris Johnson has decided to start his premiership with a new parliamentary session. This means the prorogation of Parliament and a Queen’s Speech to lay out his new legislative agenda, which will take place after the planned party conference recess. The Government’s line is that only three days of planned parliamentary time will be lost as a result of this plan, between 8 October and 10 October.
So does this loss of time for MPs to debate Brexit make the PM’s prorogation strategy unconstitutional?
It is clear that the prorogation of Parliament is in itself legal. As professors David Howarth and Catherine Barnard have made clear, “The only clear limits on the length of a prorogation are, first, a statute of 1694 requiring Parliament to be held at least once every three years, and second, the practical consideration that much of government spending and several important taxes are authorised one year at a time.”
Nor does the prorogation breach any written, non-statutory constitutional guidance. But does the prorogation breach constitutional norms? These are not easy to pin down, given that they are unwritten. They are also typically unspoken. Discussions of them typically only emerge at moments of crisis, which is when their interpretation is most prone to being contested.
Yet in this case, the constitutional norms are actually relatively clear cut. It is quite normal and uncontroversial for a Parliament to be divided up into several sessions, typically one a year. May’s epic session of nearly two-and-a-half years is very much the exception; a new session represents a return to constitutional normality. And a recess of a few days prior to the beginning of a new session is also the norm.
But there is one respect in which the prorogation is, in professor Bogdanor’s words, “abnormal” and which involves some sleight of hand on the Government’s part. The three-week break for conference season was to be a recess. Recesses are controlled by Parliament itself: it could shorten or cancel the planned recess if it wished. There has been no indication that there was any intention on the part of Parliament to cancel the planned conference season recess, but nevertheless it could have chosen to do so at any point. But by suspending Parliament “no earlier than Monday 9 September and no later than Thursday 12 September” until 14 October, the Government has removed that option from Parliament. Parliament will be prorogued for up to 34 days, which is indeed abnormal.
But does ‘abnormal’ equal ‘unconstitutional’? There is no clear-cut answer to this. Time spans are – somewhat obviously – a matter of degree rather than binary. Thirty-four days is not a long enough period to be considered a clear-cut breach of constitutional norms, but nor is it comfortably within them. The Government is taking advantage of the timing of conference season to justify dancing on the edge of acceptability.
The length and timing of the proroguing of Parliament has led to accusations this is a thinly-disguised attempt to try and prevent Parliament blocking a no-deal Brexit. The PM has said this isn’t the case. Only Johnson himself knows the truth. But the suspicion that he is doing it for this reason is understandable.
But when it comes to judging whether something is, or isn’t unconstitutional, motive doesn’t matter. The fact that an action is one of political expediency does not make it unconstitutional. After all, acts of political expediency take place all the time. A constitution that prevents all acts of political calculation cannot exist.
So it is clear that the prorogation is pretty much entirely constitutional. Only the length of the prorogation stretches the boundaries of constitutional norms, but without clearly overstepping them. And while Boris Johnson’s critics have reacted furiously to the plan, suggesting the PM has become dictatorial is well wide of the mark.
After all, Parliament still has ample opportunity to remove the Government by constitutional means. The Opposition can table a motion of no-confidence at any time that Parliament is sitting. It also retains the statutory right to form an alternative government from the existing Parliament. Prorogation does not change that. That’s a funny kind of dictatorship.
This article first appeared in the Spectator Coffee House.
IV Is democracy at risk?
By Jonathan Clark
Why do passions run so high? After all, we ought to be able to conduct a debate on whether we can expect GDP to be slightly higher or slightly lower in fifteen years’ time if we leave or if we remain in the EU without threats of hanging politicians, or jeremiads about the last day of democracy. Something else is at stake here, far beyond economic guesswork.
Actually, two things are at issue, and the Brexit crisis is at its heart a proxy war. The first is how democracy itself is to be understood. But democracy is a singular term. There are, in reality, two conceptions of democracy widely held in the UK, representative and direct. In 2019 they collide. What are they?
Representative democracy assumes that Parliament once seized sovereignty from the King, and the Commons then seized it from the Lords; or, alternatively, that if the People once had sovereignty, they surrendered it completely and for all time to members of the House of Commons, who, collectively, now have absolute authority. Being wise patricians, MPs exercise power in the national interest. This theory looks more unpersuasive the more one explores it.
But it seemed self evident in days when communication was slow, and expensive. Members of the Commons might visit their constituencies seldom. The franchise was restricted, newspapers reported little, the actions of most MPs at Westminster were seldom in the public eye. Members were unpaid, and therefore had to be rich: they were seldom inclined to defer to the poor.
Direct democracy assumes that sovereignty resides with autonomous individuals thanks to God’s gift or to Nature, individuals who know all they need to know in order to govern, and who can exercise their authority as they please via universal suffrage. Again, this theory is not wholly plausible. Which of the two predominates is likely to depend on practice more than on theoretical argument.
Practice depends on logistics, and these continually develop. If radio scarcely eroded the old society, television made a difference to politics that historians have hardly yet explored. But from the mid 1990s, and increasingly every year to the present, the internet has transformed everything. For the first time, it is possible to conduct opinion polls in a shorter time than it takes MPs to file through the division lobbies. For the first time, I can watch my MP speak live in the Commons, or by a recording. I can monitor her every vote. I can email her almost instantaneously (I have even exchanged brief emails with one distinguished MP while he was in a debate). Thankfully, my MP is admirable, in her labours both in Parliament and in her constituency. But for voters who differ from their MPs, the potential for active involvement is far greater than ever before.
Kenneth Clarke is typical of the old school of parliamentarians in insisting that the referendum of 2016 was merely advisory. But the European Union Referendum Act 2015, which made the arrangements, nowhere said that. Not did the Political Parties, Elections and Referendums Act 2000. Indeed no legislation has ever provided that votes cast in general elections are merely advisory either. On the contrary, the electorate decides things.
Failing such provision, we can only deduce the advisory status of referendums by implication, from the premise ‘Parliament is sovereign’. But which Act establishes parliamentary sovereignty? We might reasonably hold that since the People elect members of the House of Commons directly, by binding votes, and of the House of Lords indirectly (via elected members of the Commons), the People are sovereign.
Representative democracy is championed by more than MPs, and here lies the second great point at issue: what might be called the hegemony within society of social democratic values.
Set aside, for the moment, the party label; this is a state of mind that is shared by large numbers of people. They are the luvvies. They are the commentariat. They run the media, the universities, the civil service, the judiciary. They are not, indeed, socialist: that would be too uncool an ideology for the twenty first century. But they are not democrats either, and they instinctively reject the outcome of the largest democratic exercise in British history, the referendum of 2016.
In this wide sense, social democrats are ‘anywheres’ rather than ‘somewheres’: they have no particular loyalty to a country, let alone to Bolsover or Sunderland. They encourage mass migration. They have places in the sun. They get divorced. They change sex. They marry members of the same gender. They are secularists who favour religions that are loud against religious establishments. The EU suits them perfectly. The EU’s Roman Law tradition fits with their world view, since it works down from grand statements of principle; England’s common law tradition works up, from specific concrete entitlements.
Against this social democratic hegemony we see two great protests: Momentum, and the Brexit movement. To simplify, Momentum wants real socialism; Brexit wants real democracy. They can only achieve either by championing an old ideal that now becomes a new one: the People are sovereign.
Both these conceptions of democracy are, on the level of theory, honourable, plausible, but flawed. They have historic force, but they are inconsistent. A collision was bound to come, some time or other. What better ground on which to fight than the UK’s membership of the EU?
V The Prorogation of Parliament Reflects the Crisis of Representative Politics
By Lee Jones
Johnson’s decision to prorogue parliament stems not from his “dictatorial” ambitions, but the intransigence of Remainer MPs and a deep crisis of political representation.
The dilemma facing Boris Johnson’s government is obvious to everyone. On the one hand, the European Union will not give the United Kingdom a better deal than the one contained in Theresa May’s Withdrawal Agreement. In particular, they will not yield on the Irish backstop, which would potentially subordinate Britain to EU suzerainty indefinitely. On the other hand, parliament will not pass the Withdrawal Agreement. The choice facing Johnson’s government is therefore clear: either no deal, or no Brexit.
As such, parliamentary Remainers’ open plotting to frustrate no deal merely clarifies that what they have really sought all along: to stop Brexit. Indeed, this phrase is now used openly and shamelessly, after three years in which they have instead pretended to be concerned about getting “a good deal”, “holding the government to account”, or offering the public a “confirmatory referendum”. The Liberal Democrats’ EU election slogan, “Bollocks to Brexit”, expressed their true attitudes, and now Labour has joined them in demanding a second referendum under all circumstances and committing to campaign for Remain.
Their frothing outrage over the prorogation of parliament clearly has nothing to do with a principled commitment to democracy. Their sole intention is to thwart the execution of the largest democratic mandate in British history. They are simply annoyed that Johnson has squeezed the time available for them to pull this off. To buy more time, they are appealing to unelected judges to overrule the democratically elected government. They are committed not to democracy – the rule of the people – but to “parliamentary sovereignty” – their own political supremacy.
Nonetheless, for truly committed democrats, the prorogation of parliament is genuinely alarming and regrettable. It is certainly true that parliament ought to be disciplined – but this task should be performed by the citizenry, not the executive. Johnson is confronting parliament in the name of the people, but the effect of such populist manoeuvring is to strengthen not popular sovereignty but the overweening power of the executive relative to the legislature – one of the worst features of the British political system. Even worse, Johnson is manipulating the system’s absolutely worst feature: the monarchy. Activating a feudal relic to shut down parliament for political reasons may be legal, but it is reprehensible, regardless of the circumstances.
For those of us who want Brexit to initiate a democratisation of British life, none of this is welcome or desirable. One of the main reasons to oppose the European Union is that it undermines legislatures and empowers executives. In EU member-states, policymaking shifts from the floors of national parliaments to the secret chambers of intergovernmental diplomacy in the European Council, profoundly undermining popular sovereignty and accountability. Johnson’s shenanigans only underscore the fact that Brexit is no panacea to our political ills; it is only the first – albeit necessary – step in building a genuinely democratic society.
The crisis of representation
Indeed, the prorogation is the climax of a deep crisis in political representation, which long pre-dates the 2016 referendum. As the political scientist Peter Mair documented in his book Ruling the Void, a yawning gulf had opened up between citizens and politicians in the post-Cold War period – not just in Britain but across Europe. This is expressed in declining electoral turnout, a collapse in political party membership, and the withering of other mediating institutions like trade unions. For many years before 2016, citizens openly complained that politicians – who had converged around a neoliberal policy set – were “all the same” and “only in it for themselves”, while voting was increasingly pointless. A narrow sliver of metropolitan middle classes may have been satisfied but many people experienced this order as profoundly alienating and disempowering.
The EU referendum was, in large part, a rebellion against this order: a revolt against elite instructions, a demand for real change, and an insistence that parliamentarians must start listening to and representing the people once more. These sentiments were not confined to Leave voters. Many Remain voters felt the same way, responding not to any positive case for EU membership but largely out of fear of the economic consequences of leaving. Nor are these sentiments confined to Britain. Populist ructions across the EU express a revolt against the same political conditions.
However, Britain’s crisis of representation is so deep that it not only sparked the Leave victory but also entailed huge difficulties in actually implementing the result. The majority voted Leave without any serious political leadership: every mainstream political party, the media, big business, the universities – the entire establishment had backed Remain. The Leave campaigns were a ramshackle, squabbling array of heterogenous forces, which promptly disintegrated: Farage swanned off to the United States, while Gove and Johnson knifed each other. Brexit was thus a democratic moment but not a democratic movement: the majority’s will was expressed only momentarily, not through the creation of any institutionalised organisation capable of taking that mandate forward. Implementing the vote instead fell to the established political class, which, reflecting its disconnection from the public, had overwhelmingly backed Remain.
Remainer MPs’ rebellion against the electorate
It is easy to forget today, but in the weeks after the referendum, the political class openly rebelled against this task. Many parliamentarians openly demanded that the result should be ignored, while politicised lawsuits were filed to prevent the government triggering Article 50. A horrific smear campaign also began, with Leave voters being slandered as idiots and racists for the next three years. Some Brexit supporters were so alarmed that a campaign to “Invoke Democracy Now!” was launched in a desperate attempt to prevent the referendum result being negated on the spot. Labour’s parliamentary Remainers were so outraged that they launched a coup against their own leader, accusing Corbyn of being insufficiently enthusiastic when campaigning for Remain.
These months of chaos and vitriol helped to entrench a deep and bitter divide in British politics, ensuring that positions in a single, binary referendum hardened into political identities felt more deeply than attachments to political parties. In principle, it did not have to be this way. Remainers could have accepted they had lost and moved on (the normal response to electoral defeats in a healthy democracy), developing rival visions of Brexit and post-Brexit Britain to inspire the electorate. In practice, however, the deep gulf between the electorate and their so-called representatives made this extremely difficult. Many MPs were so unused to constituents’ views that differed from their own that they could simply not reconcile themselves to this democratic mandate.
Their rebellion was quelled only temporarily by Corbyn’s survival and by Theresa May’s dogmatic insistence that “Brexit means Brexit”. May was widely mocked for this slogan, but it at least reflected her acknowledgement that the electorate had issued parliament with an instruction and it was her government’s duty to obey. Corbyn’s decisive second leadership election victory also temporarily humbled his parliamentary opponents, allowing him to insist that the Labour Party would also respect the result. Because it appeared that, for the first time in many years, both main parties were finally listening to the electorate, the vote share of both rose sharply in the snap 2017 general election, reversing many years of political fragmentation. Corbyn’s surprisingly good performance further quelled his Remainer opponents.
Yet, it is obvious that most parliamentary Remainers never truly accepted the people’s instruction. Labour’s shambolic Brexit policy childishly insisted on a Brexit deal that would provide the exact same benefits as EU membership: a logical impossibility that merely incubated an eventual shift back to Remain. Worse, the Remain-supporting Theresa May, having destroyed her parliamentary majority, treated Brexit as a damage-limitation exercise, negotiating a deeply flawed Withdrawal Agreement while failing to prepare properly for a no-deal scenario.
Parliament’s refusal to pass the Withdrawal Agreement ended its limited pretence at accepting the referendum result, causing the crisis of representation to resurface with a vengeance. By late 2018, it was already clear that the European Union’s deal was final. Theresa May rightly argued that the choice was between her deal, no deal, or no Brexit. The hardcore European Research Group aside, no one was really willing to countenance no deal. Accordingly, most of those voting against May’s deal were really voting for no Brexit – though most were not yet willing to say so openly.
The crisis intensifies; the voters radicalise
The European parliamentary elections exposed the resurgent crisis of representation, with the two main parties’ support collapsing, the insurgent Brexit Party sweeping up Tory and, to a lesser extent Labour, votes, and the LibDems openly declaring “Bollocks to Brexit”. The binary Leave/ Remain identities, entrenched by establishment Remainers’ reluctance to accept the result, came back to haunt them.
The Brexit Party’s success expressed a radicalisation of Leave supporters in response to Remainer shenanigans. Remainers often proclaim that “no one voted for no deal”. This is technically true, as deal/ no deal was never on the ballot paper. But it is also true insofar as most voters probably never imagined that negotiating a reasonable exit from the EU would be made so deliberately difficult. Now, most Leave supporters see that the incompetence and intransigence of the political class has created a choice between no deal and no Brexit, and they are – quite rightly – refusing to be cowed. Accordingly, polls show, a plurality of voters (40+ percent) now back no deal. Boris Johnson’s election as prime minister clearly represents this bloc of voters.
The historical significance of Leave voters’ intransigence on this question cannot be overstated. The question at stake in this battle of wills is this: can the voters can ever issue an instruction to their political representatives that the latter do not like and expect to have it executed, come what may? Or can the political establishment frustrate electoral outcomes they dislike, creating a situation – whether through incompetence or active sabotage – where voters are compelled to “change their minds”? The latter has happened repeatedly with respect to EU-related referenda in other European countries. The playbook has been followed here. Democracy itself is on the line.
Among Remain voters, a similar radicalisation has also occurred. The anti-democratic project of negating the first referendum with a second has always been a minority position, rarely supported by more than a quarter of voters. However, having been terrorised for years about the “catastrophe” of a no-deal Brexit, more voters (though still not a majority) are now rallying behind this option. The LibDems have always represented this bloc, and now the Labour Party does, too.
In this sense, the binary political identities created by the response to the EU referendum are finally becoming crystallised in parliament. However, the proportions are still grossly out of kilter. The Johnson government may be committed to a no-deal Brexit, but parliamentary support for this is still tiny compared to support for it among the general public. The vast majority of parliamentarians are still Remainers. Moreover, the Leave/Remain divide still cuts across political parties. Some Tories have rallied behind Johnson to prevent electoral destruction at the hands of the Brexit Party, but others still refuse to be disciplined by the electorate, and are openly conspiring with opposition parties. That these forces have a realistic prospect of outlawing no deal – the outcome favoured only by a minority of voters – demonstrates that parliament as a whole still does not represent the country at large.
This leads directly to the confrontation between the Johnson government and a majority of MPs, and Johnson’s decision to prorogue parliament. The prorogation is therefore not simply a matter of Johnson acting like a “dictator”, or “stealing democracy”, as his opponents allege. It reflects the breakdown of representative democracy itself. Parliament’s refusal to enact the expressed will of the majority of citizens has created this crisis. Deal or no deal was not on the ballot, but leave and remain were. Leave won. If Remain-supporting parliamentarians had truly accepted this outcome, they would not be blocking Brexit. They would have set their personal views aside, doing whatever was needed to implement the result, whether backing the Withdrawal Agreement or supporting no deal if necessary. They would not have spent the last three years doing everything they could to discredit the result, re-running the same debates as during the referendum campaign, and abusing the electorate. They would not be conspiring to pass legislation to halt Brexit and hold a second referendum to negate it entirely. They would not be saying “Bollocks to Brexit”, which equates to “Bollocks to 52 percent of the electorate”.
But they are doing all of these things. This leaves a situation where only the executive and a minority of MPs are willing to do what is necessary to honour the largest democratic mandate in British history. Johnson is therefore compelled to use anti-democratic procedures in order to secure a substantively democratic outcome.
The Brexit crisis has exposed deep rot throughout our political institutions, from parliament to parties. There is clearly a need for root and branch reform at every level, probably including a new electoral system, radical decentralisation, and changes to party financing. But before that can happen, we must get Brexit over the line. If the political class establishes a de facto right to ignore any instruction it dislikes, our democracy will be damaged beyond repair.
VI Parliament has no sovereignty higher than a popular mandate
By Richard Tuck
By asserting their right to ignore repeated popular mandates, the Remainer faction in the House of Commons is defying the spirit of our democratic constitution and turning its back on centuries of history.
All sorts of constitutional arguments which at the mid-twentieth century seemed to have been settled have reawakened under the stress of Britain’s membership of the EU. What we have been living through is one of the great periods of constitutional upheaval which have marked British history every hundred years or so, and when the dust settles we shall be looking out over a new landscape – though in some respects it is a landscape which would have been familiar to Englishmen three hundred years ago. In particular, we have been forced to think hard about what “sovereignty” means, and where it is located in the British system.
Until recently, the answer would have been “in Parliament” or, if one was being ultra-precise, “in the Queen in Parliament”, and this answer is still given today by a faction within the British establishment which wants to use Parliament to control Brexit (though they usually mean by Parliament the two Houses, or perhaps only the Commons, and not the Crown or the Crown’s ministers). But this was only ever true in a limited sense. Only laws made with the consent of Queen, Lords and Commons have ultimate legal validity, though there have always been very general statutes which granted a high degree of effective law-making to other entities, notably ministers of the Crown and (since 1973) functionaries of the EU.
But if one goes beyond this legal doctrine and asks “Why does this group of people meeting in a rather shabby building on the banks of the Thames possess sovereignty?” the realistic answer for many hundreds of years has been that they represent the British people as a whole; and that the ultimate power must lie in the body which not only represents the people in some loose or metaphorical sense, but which, since the advent of democracy, has been elected on the basis of universal suffrage, namely the House of Commons.
What this answer illustrates is that constitutional theory is a blend of law and political theory. Nowhere is it clearly stated as a legal principle that Parliament must be representative — and indeed neither the Queen nor the Lords are — but no one today could reasonably deny that it is the fact of election which gives Parliament its authority, and that the non-elected parts have authority ultimately on the sufferance of the elected part, and not vice versa (this was decided conclusively in January 1649, and again in 1688)!
However, some people – and again, particularly those desperate to block Brexit – would respond, “Yes, but once elected the members have the right to use their own personal judgement”, and they might mutter something about Edmund Burke’s Speech to the Electors of Bristol in 1774, in which Burke proclaimed his right, if elected, to do just that. But what is often forgotten is that the Burkean view was always contestable, and indeed ran flatly counter to long-standing practices in the England of his day. It was not at all uncommon for M.P.s to be given a mandate by the same assembly which had just elected them. Prior to the introduction of the secret ballot in 1872 elections took place in raucous public meetings – a good picture of them is to be found in George Eliot’s relatively neglected novel Felix Holt the Radical – and the meetings could relatively easily agree on instructions to be given to the members on how to vote in Parliament. This had indeed been the usual practice in Bristol (which had one of the most extensive franchises in pre-Reform Act England), and Burke’s opponent in 1774 promised to continue the old custom. When Burke failed to do as his constituents wanted, he was promptly ejected at the next election.
It is not clear when the practice of local mandation ended, but by the late nineteenth century it had been replaced by the idea that a party manifesto serves as a mandate to the members elected under the banner of the party, an idea expressed most clearly in Baldwin’s plea to the electors in the 1929 Conservative manifesto to give the Government “a national mandate” to pursue the policies set out in the manifesto. But the most important example of the way the idea of a national mandate in a manifesto functioned is to be found in the last major change in the functioning of Parliament, when the House of Lords had to come to terms with the radical programme of the Attlee government in 1945. Despite a large Conservative majority in the Lords, the Labour and Conservative leaders agreed that the House would not exercise its right under the 1911 Parliament Act to delay legislation for up to two years –what was later known as “the Salisbury Compromise”.
Defending the agreement, Lord Cranborne (to be Lord Salisbury after his father’s death in 1947) said
“Whatever our personal views, we should frankly recognize that these proposals were put before the country at the recent General Election and that the people of this country, with full knowledge of these proposals, returned the Labour Party to power. The Government may, therefore, I think, fairly claim that they have a mandate to introduce these proposals. I believe that it would be constitutionally wrong, when the country has so recently expressed its view, for this House to oppose proposals which have been definitely put before the electorate.”
(HL Hansard, 16th August 1945, vol. 137, col. 47)
He put it even more clearly in October 1945:
“If the country is behind [the government], their mandate will be renewed. If the country votes against them, it is clear that their policy is not approved. That is the proper constitutional course … First, there is the Government: over them comes the authority of Parliament: and over Parliament the authority of the British people. That is the structure of the British Constitution.”
(HL Hansard, 31st October 1945, vol. 137, cols. 613)
“Over Parliament is the authority of the British people.” This was the implicit doctrine of the mandate: a policy which had been put before the electorate in the formal setting of a manifesto had a special authority, special enough to change a fundamental part of the British constitution. By recognising this, Lord Salisbury (it is not far-fetched to say) preserved the House of Lords, and may also have preserved civil peace in an almost revolutionary moment. If the idea of a mandate had been rejected, Salisbury could not have done this: the Attlee Government needed some means of enforcing the popular will against existing Parliamentary norms, and the obvious recourse was to the notion of a mandate. But the notion applies as much to the Lower as to the Upper House, and, as I said, it had traditionally been used to control members of the Commons.
The other weapon Attlee used against the House of Lords, as we have all been reminded recently, was prorogation. He used it in 1949 to create a special short session of Parliament to fulfil the requirements of the 1911 Act and force through a reduction of the Lords’ delaying power to one year in the face of their hostility to the nationalisation of the steel industry. No one thought this particularly unconstitutional, and Salisbury once again acknowledged that they were bound by the 1945 General Election mandate not to resist steel nationalisation.
It has been argued that the coming of Life Peers has changed the situation, since the Lords are now in some sense responsive to the needs of the country. But anyone who looks at the ranks of placemen in the modern chamber, and the cultural gulf between the members of the Lords and the wider population, would find this hard to believe: the modern Lords are as far out of line with the electorate as the hereditaries were, or maybe even more. If Salisbury’s arguments were correct in 1945, they are equally correct today.
It has also occasionally been argued that manifestos should no longer be taken seriously. For example, an article in The Economist in 1997 remarked that a manifesto merely
“represents the terms of a truce between the factions that are inevitably present in any political party. The cost of these commitments, however, is that the government gets nailed down on policies which, even if they make sense at the time, may cease to make sense with passage of time.”
But this was completely and characteristically to miss the point. The manifesto is a mandate not because of the intrinsic qualities of the policies, but because it is the means by which electors can authorise a policy as well as authorising a set of representatives, just as their predecessors did in the days before the modern party manifesto. Common sense would tell us, and certainly told our predecessors, that representatives may prove unworthy of the trust we place in them, and five years is a long time to wait to repair any damage. Mandation ensured at least a measure of continued control, even though The Economist might view such a thing with distaste. “Nailing down” is the point, not a defect.
The present Parliament has had two separate mandates to do with Brexit. Though this has been relatively neglected, it does have the traditional mandate of an election manifesto. The Conservatives’ manifesto of 2017 contained a number of pledges about Brexit. First, it pledged that the referendum result would be respected: “Following the historic referendum on 23rd June 2016, the United Kingdom is leaving the European Union.” Second, it ruled out continued membership of the single market and the customs union: “As we leave the European Union, we will no longer be members of the single market or customs union but we will seek a deep and special partnership including a comprehensive free trade and customs agreement.” And third (something almost entirely ignored) it committed a Conservative administration to a specific negotiating framework with the EU: “We believe it is necessary to agree the terms of our future partnership alongside our withdrawal, reaching agreement on both within the two years allowed by Article 50 of the Treaty on European Union.”
As we all know, this last commitment was almost immediately torn up by May in the face of the EU’s intransigence, a surrender which should have warned us about the fragility of the other manifesto commitments. The fact that May presided over a minority government is irrelevant from the point of view of the mandate, since each Conservative M.P. was elected on this manifesto, and it is Conservative rebels who have largely been responsible for the long delay in implementing the referendum.
The Labour manifesto was more evasive, but it too contained the blunt statement “Labour accepts the referendum result”, and it also contained various pledges to negotiate new free trade agreements with other countries which would be incompatible with continued membership of the Customs Union. The DUP also proclaimed its absolute commitment to the result: “The DUP believes that this decision must be upheld and our MPs fought against those who sought to overturn the people’s decision, block Article 50 and tie the government’s negotiation stance.”
Unsurprisingly, neither the SNP nor Plaid Cymru committed themselves to respecting the referendum, and though the Liberal Democrats did do so, they did it in a very strange way, which, incidentally, seems to have popularised the term “Hard Brexit”:
“[W]e acknowledge the result of the 2016 referendum, which gave the government a mandate to start negotiations to leave. The decision Britain took, though, was simply whether to remain in or to leave the European Union. There was no option on the ballot paper to choose the shape of our future relationship with the EU on vital issues including trade, travel or security. While much remains uncertain about Theresa May’s approach, it is now clear that the Conservatives are campaigning for a hard Brexit. This means leaving the single market, ending freedom of movement and abandoning the customs union – even though these choices will make the UK poorer and disappoint many leave voters who wanted a different outcome.”
Since staying in the single market and the customs union is staying in the EU, for the EU is nothing more than these two arrangements, this form of words was particularly deceptive, but mysteriously it has become mainstream for all the minority parties in Parliament, other than the DUP.
So even on the traditional view of manifestos, a majority of sitting members of Parliament are mandated to leave the EU, understood as leaving the single market and the customs union. But the 2016 referendum was also in itself a mandate, of an extremely clear kind. Just as the Salisbury Compromise had force because it recognized a political reality – the power of a modern democratic vote – despite the fact that in strict law manifestos had no special significance, so the power of the vote in June 2016 has created a mandate for Parliament, despite the fact that in strict law it was only advisory.
It was not merely an opinion poll, any more than a general election is merely an opinion poll on the policies put forward by the parties. The referendum was organised by the state, it gave everyone a vote, and there was a public understanding that the result would be respected. This was no less true of the referendum than of a party manifesto, and the referendum result in fact had additional authority, given by the fact that the proposition in the referendum was detached from other commitments and was the object of (for all its faults) an extensive and focused debate, comparable to the occasions in our past when a government has gone to the country seeking a mandate on a specific and crucial policy.
As I said, the programme of the Attlee government, though nostalgia has softened it, was close to revolutionary, and was denounced as such by the Conservatives. But rather than fight the programme through Parliamentary technicalities, they chose to accept the reality of a democratic vote, conscious that not to do so would be both a major change in the real British constitution, and a declaration of civil war. Far more was changed in Britain by the Attlee government than could possibly be changed by any form of Brexit, yet modern Parliamentarians seem incapable of emulating the wisdom of their precursors and recognising that above them is still “the sovereign people of this country from which Parliament gets its authority”.
Authors
Robert Tombs is emeritus professor of French history at Cambridge and co-editor of Briefings for Brexit.
Dr Anna Bailey is political scientist and a regular contributor to Briefings for Brexit.
Professor Jonathan Clark is a leading political and constitutional historian of early modern Britain.
Dr Lee Jones is Reader in International Politics at Queen Mary University of London and co-founder of The Full Brexit.
Richard Tuck is a Fellow of the British Academy, and Frank G. Thomson Professor of Government at Harvard University.
This Report was first published on Briefings for Brexit, and is republished with permission. You may not use, copy, distribute, publish, syndicate, sub-license and transmit the whole or any part of such material in any manner and in any format and/or media without the permission of the original publishers.
Link to the original article: https://briefingsforbrexit.com/sovereignty-people-parliament-government/
