Beyond Brexit: Towards a British Constitution

vb_image_70x90Brexit is a major constitutional change. It creates considerable constitutional uncertainty, but also opportunity. It could prove Britain’s constitutional moment. Vernon Bogdanor argues that just as joining the EU fundamentally altered the UK constitution, so Brexit could, by exposing the very nakedness of Britain’s uncodified arrangements, prove a catalyst for a written constitution.

During the period of membership of the European Communities/European Union, the UK was subject to a written or codified constitution, which was entrenched. Brexit is a process rare if not unique in the modern world, involving as it does disengagement from a codified to an uncodified system. It is just possible indeed that Brexit will lead to a codified constitution for the United Kingdom that would bring us into line with virtually every other democracy in the modern world.

At a seminar at King’s College, London shortly after the 2016 EU referendum, Takis Tridimas, a professor of European Law at King’s said that the result represented the most significant constitutional event in the UK since the restoration of the monarchy in 1660, since it showed that on the issue of Europe, the sovereignty of the people trumped the sovereignty of Parliament. Of course, from a legal point of view, the referendum was merely advisory, but the government committed itself to respecting the result and the outcome was seen by the majority of MPs as decisive. Since June 2016, therefore, both government and parliament have been enacting a policy to which they are opposed. That is a situation unprecedented in our long constitutional history. Europe, therefore, has been responsible for the introduction of a new concept into the UK constitution, the sovereignty of the people. On this issue, the people have in effect become a third chamber of Parliament, issuing instructions to the other two. The sovereignty of Parliament is now being constrained not by Brussels, but by the people.

The effects of the European Communities Act on the UK constitution

The main constitutional consequence of our EU membership was to restrict the sovereignty of parliament. Parliamentary sovereignty must be distinguished from national sovereignty, with which it is often confused. National sovereignty is engaged whenever a country signs a treaty. It is not an absolute, it can be pooled or shared with other countries, and it is a matter of political judgement how far it should in fact be shared. But parliamentary sovereignty – the notion that Parliament can enact any law it chooses – is not like that at all. It is an absolute. One either has it or one does not. One can no more be a qualified sovereign than one can be a qualified virgin. Continue reading

Should we worry if MPs seize control of the parliamentary agenda?

download.001Ahead of Tuesday’s votes on Brexit, attention has focused on the rights and wrongs of the House of Commons seeking to ‘seize control’. Meg Russell argues that there’s nothing unusual about a democratic parliament controlling its own procedure and business. Indeed, the core principle of parliamentary sovereignty already gives the Commons control by default.

With stalemate over the Prime Minister’s Brexit deal, rejected dramatically by the House of Commons on 15 January by 432 votes to 202, there is increasing talk of parliament ‘seizing control’. On Tuesday, following the Speaker’s controversial decision to allow a vote on Conservative backbencher Dominic Grieve’s amendment speeding up the timetable, MPs will vote on a series of propositions about what should happen next. These include a further proposal by Grieve that the government’s usual control of the agenda should be set aside on specified days to allow MPs to make decisions on Brexit, and a proposal from Labour’s Yvette Cooper that such control be set aside to allow time to debate a private member’s bill demanding that ministers avoid a no deal Brexit by requesting an extension to Article 50.

Consequently, some inside government have expressed concerns that the Commons, with the Speaker’s assistance, is overreaching itself. It has been reported that an internal government document warns of MPs’ moves ‘represent[ing] a clear and present danger to all government business’, and even meaning that ‘the government would lose its ability to govern’. One senior legal figure (whose career was spent inside the government) has argued that changes of this kind could set dangerous precedents for the future, even potentially dragging the monarch into a constitutional crisis (though other legal experts have firmly rebutted such claims).

So are we entering dangerous constitutional territory? What is, after all, so odd about the idea of a democratically-elected chamber gaining greater control over its own time, and its own rules? Continue reading

Reforming referendums: how can their use and conduct be improved?

jess.sargeant.resizedalan_renwick_webThis week’s turbulent political events represent the fallout from a referendum where the consequences of a ‘change vote’ were unclear. This is just one of many concerns raised about recent UK referendums. To reflect on such problems and consider possible solutions, the Constitution Unit established the Independent Commission on Referendums. Here Jess Sargeant and Alan Renwick summarise the Commission’s conclusions and recommendations.

The Independent Commission on Referendums has published its final report today. This sets out almost 70 conclusions and recommendations, all agreed unanimously by the 12 distinguished Commissioners, who span the major divides in recent referendums. The report is the product of eight months of discussion and deliberation amongst the Commissioners, backed by comprehensive Constitution Unit research into referendums in the UK and other democracies. The Commission has also consulted widely with experts and the public, including seminars in each of the four constituent countries of the UK. We hope that, like the work of the Constitution Unit’s previous commission on referendums, this report will set the agenda for debate about the future use and conduct of referendums. 

Background

The use of referendums internationally has increased dramatically over the past three decades. This has been driven partly by changing public expectations of democracy: deference has declined and public desire for input in decision-making has grown. The UK experience has mirrored this trend. Following the first non-local referendum in 1973, there were three further such polls in the 1970s. A further nine non-local referendums have been held since the late 1990s – two of which were UK-wide.

Unlike many countries, the UK has no formal rules regarding when or on what a referendum should happen. As explored in an earlier blogpost, decisions to hold such votes have been driven by a mixture of principle and pragmatism. Nonetheless, conventions have emerged for holding referendums on fundamental questions to do with devolution and the European Union; in some cases, these conventions have even been codified in law. Referendums provide a mechanism for entrenchment in the absence of a codified constitution: decisions explicitly endorsed by the electorate are hard to reverse without further reference to the people.

The role of referendums in democracy

Referendums can enhance democracy: they can answer fundamental questions about who ‘the people’ are, strengthen the legitimacy of major decisions, and allow the public a direct say on major issues.

But referendums can also in some ways inhibit democracy. Voting is central to democracy, but so are processes such as deliberation, compromise and scrutiny. Binary referendum campaigns don’t necessarily create space for these: rather, they can encourage polarisation and division. Badly designed referendum processes can also risk undermining the institutions of representative democracy, which are essential for democratic governance across the board. There are also some topics, such as those affecting minority rights, where using such a majoritarian device may be inappropriate.

Thus, the Commission recommends that referendums be used with caution. Engaging the public in policy-making processes is essential, but there are often better ways of doing so. Continue reading

The Labour Party’s long-standing lethargy over House of Lords reform

s200_pete.dorey (1)Labour recently announced that any new peers it nominates must commit to abolishing the House of Lords. In this post, Pete Dorey discusses Labour’s track record on Lords reform and why the party has failed to enact serious reforms when in government, arguing that the subject has suffered from a lack of intra-party consensus and a lack of serious interest in reform at ministerial level.

It is a clear reflection of the political turbulence and febrile atmosphere wrought by Brexit that some prominent Conservatives, and pro-Conservative newspapers, have attacked the House of Lords for daring to obstruct ‘the people’s will’, with regard to tabling significant amendments to the EU (Withdrawal) Bill. Of course, there is delicious irony in such condemnation, given that support for Brexit has long been couched in a discourse about restoring parliamentary sovereignty, whereby Westminster, not Brussels, should be the locus of all political decisions affecting the British people.

That it is also Conservatives who have recently denounced the unrepresentative and undemocratic character of the House of Lords is even more ironic, not to say hypocritical, given that the Conservative Party has hitherto been a staunch defender of the unelected second chamber – bitterly opposing the 1999 removal of most hereditary peers – particularly when Labour has mooted reforms to render it more politically representative, and/or curb its (limited) power.

That such reforms have only occasionally and sporadically been enacted by Labour governments has not been due to Conservative opposition, however, but to disagreements within the Labour Party itself over the desirability and details of Lords’ reform. Condemning the socially and politically unrepresentative character of the House of Lords, and its veto power, has been easy for Labour MPs and ministers, but intra-party agreement on what exactly should be done to remedy these apparent defects has proved rather more elusive. There are four main reasons why Labour governments have only pursued House of Lords reform sporadically, rather than systematically. Continue reading

Brexit and the sovereignty of parliament: a backbencher’s view

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Brexit is a constitutional, legal, and political challenge of a size the UK has not seen in decades and will have consequences that are both uncertain and long-lasting. In this post, Dominic Grieve offers his distinctive perspective on Brexit, discussing the concept of parliamentary sovereignty, the role of international courts in UK law, and the more troubling aspects of the Withdrawal Bill itself. 

The EU and the sovereignty of parliament

My Brexiter colleagues have in varying degrees signed up to the view that EU membership undermines the sovereignty of parliament in a manner which is damaging to our independence and our parliamentary democracy. This certainly fits in with a national (if principally English) narrative that can be traced back past the Bill of Rights 1688 to Magna Carta in 1215.  This narrative has proved very enduring; it places parliament as the central bastion of our liberties.

But it can also be used merely as an assertion of power, particularly when the executive has effective control over parliament. It is with that power that parliament enacted the European Communities Act 1972, which gave primacy to EU law in our country. It was parliament that chose to allow what is now the Court of Justice of the European Union (CJEU) to override UK statute law, so as to ensure our conformity with EU law in all areas in which it has competence.

The justification for requiring that supremacy was that without it, achieving adherence to the treaties and convergence between member states in implementing EU law would be very difficult. This was not an unreasonable argument; but it is hard to avoid concluding that the supremacy of EU law lies at the root of the feeling of powerlessness felt by sections of the electorate and reflected in the referendum result. This feeling has been encouraged by the habit of successive UK governments to hide behind decisions of the EU as a justification for being unwilling to address problems raised by its own electors. But where the lawyer and politician in me parts company with the views of my Brexiter colleagues is in the extent to which they appear oblivious to the extent to which parliamentary sovereignty is not – and never has been – unfettered. Continue reading

The EU referendum and some paradoxes of democratic legitimacy

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In parliamentary democracies referendums generate alternative, competing sources of legitimacy. This has been clearly demonstrated by the EU referendum result, with the public voting to Leave despite a clear parliamentary majority for continued membership. Nat le Roux discusses this paradox and suggests that it would not be unreasonable for some MPs to choose to vote against the invocation of Article 50.  

In a parliamentary democracy, referendums are potentially destabilising because they generate alternative, competing, sources of democratic legitimacy. A majority of elected representatives may hold one view on a matter of major national importance. If a referendum demonstrates that a majority of the public hold the opposite view, which manifestation of democratic legitimacy should trump the other?

In Britain, parliamentary sovereignty is the governing norm of the constitution: it would seem to follow that a parliamentary majority can always overturn a referendum result. The reality, at least in the particular circumstances of the EU referendum, is less clear cut:

  • The referendum result will be implemented, effectively irrevocably, if Britain invokes Article 50 of the Treaty on European Union. It may be that the Prime Minister can do this without consulting parliament. If that is so, it can be argued that we now have a new constitutional principle under which, at least in particular cases, popular sovereignty as expressed in a referendum trumps parliamentary sovereignty.
  • On the other hand, if the invocation of Article 50 does require legislation, we should ask under what circumstances, and by what arguments, MPs can overturn the directly expressed views of the electorate without severely damaging the democratic legitimacy of parliament itself.

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Brexit, the referendum and the UK parliament: some questions about sovereignty

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During the referendum campaign there was much talk about sovereignty, but little clarity on what it actually means. Sionaidh Douglas-Scott explains that there are at least three notions of sovereignty that are relevant in the context of Brexit which are often confused – parliamentary sovereignty, popular sovereignty and external sovereignty. The immediate aftermath of last week’s vote has shown how these can come into conflict.

So, we have the result of the referendum, and a majority of voters have voted to leave the EU. A mantra of Leave campaigners seems to have been the desire to ‘take back control’. There has been much talk of sovereignty, although less clarity on what it actually means. However, at its most basic, there are at least three notions of sovereignty that are relevant in the context of Brexit, and they are often confused. The first is parliamentary sovereignty, which is said to have particular resonance in the UK because, due to the vagaries of the uncodified UK constitution, the Westminster parliament has been recognised as a body with unlimited legislative power. Yet the parliamentary sovereignty of a representative democracy may seem to be at odds with popular sovereignty as exercised in a referendum. Popular sovereignty also has other implications, such as in Scotland, where an indigenous Scottish tradition claims that sovereignty resides in the Scottish people, in spite of the alternative claims of Diceyan parliamentary sovereignty. Thirdly, there is external sovereignty, whereby a country may be sovereign and recognised as independent by the international community. But states recognise that international agreements such NATO, or EU treaties, curb sovereignty in practice. However, these constraints are willingly accepted by states because of the benefits that pooling or ceding some sovereignty can bring – indeed it can even enhance sovereignty in another sense of a state’s power or ability to deal with certain issues.

These are three different concepts of sovereignty, but they have become very confused in the context of Brexit and the UK’s relations with the EU. Now we have the results of the referendum vote, what are the implications of ‘taking back control’ for sovereignty? This blog examines three specific issues arising in the immediate aftermath of the Brexit vote which reveal the extent of confusion over sovereignty.

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