Brexit has stimulated much interesting political debate. For many years, a lack of serious interest in politics among the public and a concern about low voter turnout in elections was an article of faith among the commenting classes. This has now been replaced by anxiety about the interest that the public does take in politics and the role of referendums in giving effect to direct popular political will.
Using the Sovereignty of Parliament to Set Aside the Brexit Referendum Result
This concern was expressed with great élan in a talk given by Professor A.C. Grayling at the Dartington Way with Words literary festival: Progress in Troubled Times: Learning from ‘The Age of Genius’. The talk was about his book examining the intellectual firmament of the seventeenth century, and the scientific revolution that transformed the alchemy and astrology of John Dee into the scientific observation and astronomy of Galileo. In this discussion of seventeenth-century intellectual history, Professor Grayling shared his thoughts on Brexit and the sovereignty of Parliament. Roughly summarised, a referendum could only be advisory, because Parliament is sovereign, and the advice yielded by the referendum should be ignored. He later went on to expand on this in a letter delivered to all MPs.
Many supporters of the UK’s continued membership of the EU have in turn identified a paradox. Much of the debate about the EU was about sovereignty, and the sovereignty of Parliament, in particular. If Parliament chooses to vote down Brexit, it would only be asserting its fundamental sovereignty. And, moreover, it would be expressing a sovereignty that the supporters of Brexit romantically, if anachronistically, revere. It is a sort of delicious high table, or London Review of Books, kind of argument.
The Supremacy of Parliament
It provokes a discussion that illuminates the impact that membership of the EU and the passing of the 1972 European Communities Act has had on the British constitution. The central feature of the British constitution — leaving aside the matter of a lack of a single document codifying it, and its flexible character — has been the doctrine of the supremacy of the Parliament at Westminster.
The doctrine found its most powerful expression in A.V. Dicey’s book, Law of the Constitution, published in 1885. Dicey, the Vinerian Professor of Law at Oxford, is one of three great cataloguers of the British constitution. The other two being William Blackstone, the eighteenth-century judge and the first Vinerian Professor of Law at Oxford, whose Commentaries were published in 1765, and Walter Bagehot, the nineteenth-century editor of The Economist, who published The English Constitution in 1867.
The Erosion of Parliamentary Sovereignty following EEC Membership?
Until 1972, the Diceyan interpretation of the constitution was the standard benchmark. At its heart was the classic statement that nothing could brook the will of Parliament. Its powers were unlimited, and one Parliament could not bind a future Parliament. There were some alleged constraints that legal scholars and courts sometimes mentioned. Among these were the terms of the Act of Union with Scotland that implied a constraint on Parliament’s power to legislate for the special character of the law in Scotland, its established Church, and its ancient universities. Academic lawyers were among the first people to recognise the constitutional significance of the European Communities Act. By the mid-1980s, in many undergraduate constitutional law courses, the doctrine of the Supremacy of Parliament was described as dying, if not dead, and its full Diceyan expression was increasingly regarded as anachronistic.
At the time of the preparations for the 1975 referendum on whether the UK should remain in the EEC on the re-negotiated terms of the Wilson government, the Labour cabinet discussed the sovereignty of Parliament and whether Parliament had the power to leave the EEC. Tony Benn recalled the advice of the Lord Chancellor Lord Elwyn-Jones as being that, yes, Parliament in 1975 did indeed retain that sovereignty, but over time it would atrophy. Although, as a matter of practical politics, the British Parliament would probably be able to legislate to leave the EU, constitutionally, this may involve what lawyers refer to as a ‘legal revolution’.
The Diminution of Parliament’s Authority
The central authority of Parliament since the 1970s has diminished. The party system that managed Parliament as an institution was not able to handle Europe as a political issue. The three principal national parties from the late 1960s were agreed on the merits of British membership of the EEC and its successive entities the EC and the EU. While there were significant minorities opposing European integration in both the Conservative and Labour parties, their leaderships consistently supported membership. Europe has bitterly divided parties since the 1970s, in the way that the recent referendum has bitterly divided families. These divisions emasculated the capacity of both the main parties to function.
In the 1970s, the resignation of Labour’s deputy leader, Roy Jenkins, and the rows between the left and the right over the EEC threatened to paralyse Labour. Labour promised to renegotiate the terms of membership of the EEC and put them to a referendum. Labour’s National Executive agreed to the suggestion of a referendum made by Tony Benn, to maintain party unity. It represented a major constitutional innovation. Parliament and the party system could not handle the issue of Europe. In effect, Parliament voted to remit its authority over this matter to the electorate.
From the debates surrounding Maastricht and the proposed European single currency after 1992, the Conservative Party was broken as an effective instrument of government. Arguably, for a period it was destroyed as an effective opposition, as well. The Conservative Party slowly came to accept that, on Europe, matters would have to be decided through referendums. This was necessary both to maintain the internal cohesion of a party significantly divided on the issue, and to shore up its vote in marginal constituencies that was threatened by erosion from UKIP.
The Conservative Party slowly turned to the referendum device out of necessity. First, it was on whether sterling should join the euro, then, on the ratification of Lisbon Treaty, and next, the commitment that any further treaty changes would trigger ratification by referendum. And finally, the offer of an in-out referendum.
When the Brexit referendum was announced, the former Labour foreign secretary, David Owen, expressed the position clearly. In practice, the authority of Parliament on the matter of Europe had broken down. The party system could not handle the matter and Parliament chose to suspend its authority and pass the matter to the electorate.
The pleasure that opponents of Brexit have in taunting their opponents over the apparent paradox of a plebiscite overriding their precious attachment to an anachronistic interpretation of parliamentary sovereignty is, however, premature. There are two dimensions to sovereignty. The first is national sovereignty in the sense of the autonomy of the UK in international law, and there is the second question of the way that power is dispersed and exercised by institutions, such as Parliament within the country.
Dicey‘s Appreciation of the Merits of the Referendum in Parliamentary Government
Dicey articulated the doctrine of the sovereignty of Parliament in its most potent form. Quoting Sir Edward Coke from Blackstone’s Commentaries, Dicey describes ‘the power and jurisdiction of Parliament’ as ‘so transcendent and absolute that it cannot be confined, either for causes or persons’.
Yet Dicey, the author of the most powerful statement of the supremacy of Parliament, is of no intellectual assistance to advocates of Parliament flouting the result of the referendum. Dicey was very clear. There were certain questions where a referendum could offer a useful political device, and he surveyed the Swiss use of the referendum with approval. And, in relation to the British constitution, he went further, suggesting that on great constitutional questions, such as the future of the union with Ireland, the party system may be defective, and the only proper manner for resolving the matter may be a referendum.
For Dicey, the merit of a referendum was that it ‘may diminish the admitted and increasing evil of our party system’, and ‘ensure that legislation shall be in conformity with popular opinion’. His conclusion about the referendum was as potent and magisterial as his statement on parliamentary supremacy. Dicey held that parliamentary sovereignty, and the judicious use of the referendum, are not incompatible. He wrote: ‘It is probable, if not certain, that any one who realises the extent to which parliamentary government itself is losing credit from its too close connection with the increasing power of the party machine, will hold with myself that the referendum judiciously used may, at any rate in the case of England, by checking the omnipotence of partisanship, revive faith in that parliamentary government which has been the glory of English constitutional history’.
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NB The quotations from Dicey are taken from Law of the Constitution, eighth edition, published in 1915.