Unreconciled pro-Remain MPs cynically exploiting an interpretation of Parliamentary Sovereignty to try and negate the EU Referendum result have highlighted the urgency of radical post-Brexit Parliamentary reform
The Supreme Court decision in Miller – that the Government’s powers under Crown Prerogative did not include the power, despite the unequivocal popular mandate given it by the result of the EU Referendum, to issue notification under Article 50 of the Lisbon Treaty of Britain’s withdrawal from the European Union, so that a specific Act of Parliament was required – has re-activated the question of what Parliamentary Sovereignty actually means.
I was brought up to believe, and was in fact taught, that what the doctrine of Parliamentary Sovereignty expresses is the supremacy of Parliament over the Crown – that the Crown cannot arbitrarily compel the passing of laws or the raising of taxes without the consent of Parliament, but by extension also, therefore, without the consent of the people whom Parliament merely represents.
In other words, that Parliament is sovereign over the Crown, but not sovereign over the people, comprising as it does merely their temporarily-elected representatives.
Admittedly, the question is disputed by constitutional writers. Burgess suggests that this is indeed the case, and argues that, by asserting or assuming sovereignty over the people, successive Parliaments have exceeded their powers. Loughlin, on the other hand, suggests that Parliament is indeed supreme over the people, and infers that this is legitimised by freely-held, non-coercive elections under our system of representative, rather than direct, democracy.
I’ve always been uneasy with this latter interpretation: to me, it seems far too conducive to an elective dictatorship, able to act with impunity in defiance of the people’s expressed wishes. When we send MPs to Westminster, we are not relinquishing or transferring ownership of our democratic powers to them: we are merely lending them, and delegating temporary custody of them, to MPs until the next election – and nothing more.
This has even more resonance when Parliament, without our approval, agrees to transfer power or jurisdiction over domestic policy matters to unelected, unaccountable supra-national bodies like the EU. Because our democratic powers as a people are only lent, not relinquished, to MPs, they do not become the property of a transient Government or those MPs to dilute or even cede to another polity, without our specific consent.
The Supreme Court’s ruling in Miller, however, making implementation of the clear popular mandate given the Government by the EU Referendum in effect subject to approval by Parliament, appeared to reinforce the interpretation that Parliament is supreme, not only over the Crown, but over the people also.
Crucially, however, that is certainly the way it has been gratefully interpreted over the past three days by very many anti-Brexit MPs in the current Parliament’s inbuilt near two-thirds to one-third pro-EU, pro-Remain majority: a pro-EU majority that stood in stark contrast to the UK electorate’s 52% to 48% vote to leave the EU, and which, translated into Parliamentary seats, has been calculated would produce a pro-Leave landslide.
When Parliament voted, by a factor of no less than 6:1, to hold the EU Referendum, what it did was to hand back to the British people, in relation to the specific issue of remaining in or leaving the EU, the powers that the British people had, once again, temporarily lent to it, via the 2015 General Election. Dan Hannan’s tweet above perhaps clarifies how.
For this particular issue of Britain’s EU membership, Parliament gave back to the people the sovereignty which we temporarily lend it. It said, in effect: “this is for you to decide, not us on your behalf”. It even emphasised as much – “The Government will implement what you decide” – on its information leaflet.
And the decision of the British people, and its implied, consequent instruction to its elected Government, was clear and unmistakeable.
To have, therefore, seen diehard-Remain MPs trying over the past three days to confect and exploit a cynical, self-serving misinterpretation and distortion of Parliamentary Sovereignty to mean Parliament supreme over the people, to further their own nakedly anti-Brexit aims in defiance of the democratic decision of the UK electorate which they voted by over 6:1 to confer on it, has been utterly nauseating.
We’ve seen unashamedly pro-EU MPs, who for years accepted torrents of EU legislation into the corpus of UK law with near-zero scrutiny, suddenly converted to the apparent necessity of line-by-line scrutiny of Brexit aims and negotiating strategy.
We’ve seen Labour, LibDem and SNP MPs, supported by unreconciled Tory Remainers, proposing amendments to the Article 50 Bill which were blatant attempts to slow the Brexit process to a standstill: and making it clear that many want either not to leave the EU at all, or else remain in it in all but name.
We’ve seen the vast majority of Labour, LibDem and SNP MPs, again with support from unreconciled Tory-Remainers, making it abundantly plain that their wish to “scrutinise” the Government’s Brexit negotiating strategy is only to expose & weaken the Brexit negotiators’ hand, before negotiations start.
We’ve seen pro-EU MPs, who for years were so eager to give UK voters’ democratic powers away, now fighting hard to stop them coming back. Many of their disingenuous amendments clearly were mere devices to negate implementing the decision which Parliament gave to the electorate to make, and some of those pro-EU MPs could barely be bothered to conceal it.
We seen unreconciled pro-Remain MPs, one after the other, indulging in competitive hand-wringing over the post-Brexit plight of EU nationals currently in the UK. Their cynicism has been quite breathtaking: it’s easily ascertained that approximately 84% of EU nationals residing legally in the UK would not be affected one iota.
Their speeches were in effect re-fighting the EU Referendum itself, and re-running the combined Remain campaign’s Project Fear. They left no doubt that, for them, being pro-EU means being anti-democracy, and that the prospect of leaving the anti-democratic EU horrifies them.
It’s difficult to deny that, when Leave-ers voted on 23rd June 2016 to recover Parliamentary Sovereignty, what they meant was leaving the EU altogether – so that, in a Britain once more an independent, self-governing country from being outside the European Union, their laws & taxes would in future be decided by, and only by, the MPs they elected to Parliament, and by no-one else.
In other words, that Parliament would be sovereign over any foreign legislature in the determining the laws they have to obey and the taxes they have to pay. Remember, both the Government and Remain campaigns to stay in the EU had been totally unequivocal in warning that a Leave vote meant exactly that – leave completely.
I suspect what they did not mean by recovering Parliamentary Sovereignty was Remainer MPs interpreting it instead as Parliament in effect deciding whether the UK is to leave the EU at all. Yet it’s been obvious from the last three days’ Article 50 Bill debates that that’s how the Diehard-Remainers see it, and have tried to interpret it. Their conduct has been nothing short of pro-EU anti-democracy chicanery.
So what implications does this have for the future of Parliament, and our democratic politics, once Brexit has been achieved?
One consequential necessity above all, I’d contend, has long been pre-eminent: that, having succeeded in retrieving and repatriating our democratic sovereignty, we cannot risk merely entrusting it once again to the same body of MPs who for 40 years eagerly and arguably illegitimately gave it away without our consent in the first place: at least not without imposing some very robust limits on their powers in that respect.
They have shown that, quite simply, they cannot be trusted. The reaction of too many to the, for them, unwelcome Referendum result has betrayed their disdainful attitude towards their electorate.
Many remain unreconstructed advocates of the EU Project: it’s been clear that, for so many, the prime attraction of EU membership is that it enables them to fulfil a visceral desire to put as much policy-making as possible beyond the reach of what they see as the capricious domestic democratic process and an electorate whose views they by-and-large do not share or even find repugnant.
We cannot assume that a future Parliament, especially a left-leaning, residually pro-EU one, would not surreptitiously resume the powers-ceding process of the last 40 years all over again. Their hands, in short, need to be tied.
So we must strengthen the post Brexit Parliament’s democratic accountability to the electorate. To more of a People’s Democracy that makes legislature and executive work, not in the interests of the Establishment cartel, but in the interests of the people.
We need, and urgently, a proper Recall Procedure, in the hands of voters. The Bill presented in the last Parliament to allow a minimum percentage of constituents to recall an errant MP to face re-election was voted down: instead, Members decreed that only a committee of MPs was fit to decide whether one of their fellow-MPs had misbehaved sufficiently to have to account to his electorate – his constituents, impliedly, were not . So much for “trust the people”. Real voter Recall is a cause going by default.
We need Open Primaries for candidate selection. We may no longer be in the days of the Cameroon Cuties’ A-List, and Labour’s infamous all-women shortlists seem to have fallen out of favour: but with the occasional exception, none of the main parties seems at all keen to open up the candidacy process and make it more accessible, less subject to capture or manipulation by party hierarchies, and more transparent. The case for Open Primaries is strong, but not being robustly made.
A fairer constitutional settlement for England, shamefully neglected in the rush to confer domestic powers on the devolved assemblies, is long overdue: but the issue of an exclusively English Parliament, or English Votes for English Laws, has retreated towards the back burner.
Yet by re-advancing it, English MPs would rightly be re-asserting domestically the fundamental principle on which the EU Referendum itself was fought and won: that the laws governing the citizens of a discrete polity can legitimately be those, and only those, made by, and only by, the representatives directly elected by the citizens of that polity, and whom they can remove from office via the ballot-box at the next election.
For national-level democratic participation, we have to rely on a once-in-5-years cross-marking exercise, based on manifesto commitments which few expect their parties to honour, once the inconvenience of an election is out of the way. But – in an age when we can book a holiday with a few mouse-clicks, or apply for a university course with a screen-touch, why should this be?
The Swiss manage successfully to hold referendums on issues other than major constitutional questions like their voting system or EU membership. It’s no coincidence, to my mind, that the Swiss, who have the most direct say in their government, via localisation & frequent referendums, express the highest confidence in their government and regularly show highest public-engagement in politics. We can achieve the same. We need more referendums, not fewer.
The political-class, of course, hates them. They’re “divisive”, they’re unpredictable, they take control of campaign messaging away from party machines, and, worst of all from their point of view, referendums let voters take control of a single issue outside the 4/5-year election sequence when an entire manifesto is voted on.
There can be few better reasons for having more referendums than a demonstrably unrepresentative, voter-averse, political class being opposed to them. If we were more accustomed to using them as an instrument of democratic consent, they’d be far less “divisive”.
Whatever method of future democratic engagement we adopt, we need, too, to eliminate the loopholes, if not downright electoral fraud, made possible from now rampant abuse of the postal (or virtually proxy) voting system. There have been too many instances reported of, as just one example, multiple postal votes per household, to continue leaving glaring abuses unchecked. A return to the previous very tight criteria for postal voting eligibility, plus a requirement for photographic ID at polling booths, is necessary if the democratic process is not to be further subverted.
We need, also, enshrined in law, an absolute bar on the transfer away to any other body, whether domestic or international, of any part of the democratic sovereignty temporarily and conditionally vested in Parliament by the electorate. Remember, it’s not just to overseas or supranational unelected, unaccountable institutions that our democratic powers have been transferred – think how much policy-making has been put beyond the reach of democratic disapproval or change over the years by being delegated to quangos or semi-autonomous government agencies insulated from the democratic process.
The Coalition purported to remedy this with its 2011 European Union Act, essentially requiring a plebiscite on any further significant transfer of powers from Westminster to Brussels. Crucially, though, it largely left to Cabinet discretion what actually constituted a significant transfer of powers which would trigger a referendum. It was basically a sham, designed principally to head off demands from a growing-Eurosceptic Conservative Party and public for an EU Referendum while in coalition with the fanatically pro-EU, referendum-averse LibDems. We need a new law which is far more prescriptive.
The EU Referendum and its aftermath – especially the disconnect it revealed between, on the one hand, an electorate the majority of which is opposed to both EU membership and continuing uncontrolled mass immigration, and on the other, a Parliament largely in favour of both – has dramatically exposed how the traditional model of representative democracy is no longer working, in that, patently, it increasingly fails to represent. And as representative democracy’s disconnect between the views of rulers and ruled grows more and more apparent to more and more people, dissatisfaction with it will only grow.
The current anti-politicians (but NB not anti-politics) sentiment isn’t a mere passing phase. It augurs a permanent change in the relationship between rulers and ruled, to one where the balance between representative and direct democracy shifts more towards the latter.
That’s why, after Brexit, radical Parliamentary reform is needed to make MPs more accountable to their electorates, and ensure they can never again give away democratic powers which, because they are merely custodians of them our our behalf, are not theirs to give.
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