By Dr Sarah Lieberman, Senior Lecturer in Politics and International Relations
Canterbury Christ Church University
Many things have annoyed me about the Brexit debate that has gripped the country this year. However, as a political scientist, the aspect that has bothered me the most has been the complete lack of understanding among the British public regarding the British Constitution. That, and the fact that the government asked this British public, who for the most part do not understand the institutions of the political system, to vote on an issue, the depth and complexity of which they could not possibly be expected to grasp in the short time between the announcement of the referendum and D(eparture)-Day. And I have also been known to mention the fact that binding referenda are unconstitutional, flying as they do, directly in the face of parliamentary sovereignty – the cornerstone of our great, traditional, British political system and the key stone of our unwritten, flexible, open-to-interpretation constitution.
The unwritten constitution and the principle of parliamentary sovereignty form the very basis of every first year university British politics module. Politics 101. Britain does not have a constitution. It is made up of statute law, legislation, norms, operating procedures and unwritten rules. This means that our constitution is flexible, moves over time, and bends to fit requirements. This is not a negative, indeed it allows decisions to be made quickly and means that our constitution does not require to be constantly re-written. At the core of the constitution lies the principle of parliamentary sovereignty: this means that PARLIAMENT is the only sovereign body in the state, meaning that ONLY parliament can legislate for the country. Meaning that power lies with parliament. Now, those who wish to leave the EU would tell you that parliamentary sovereignty was upset, eroded, blown to smithereens by the UK’s membership of the European Union, but that was not the case. Most EU legislation needed to pass through Westminster before being adopted into the British statute books, and most importantly the UK parliament could at any point, draw decision making power back from Brussels by leaving the Union. Leaving aside the media assertion that Brussels is populated by unelected bureaucrats, any power delegated to the supranational level could, at any point be retracted to the national level: why? because all legislation can be revoked by legislation, therefore EU membership can be revoked by UK parliamentary legislation. That is parliamentary sovereignty: parliament is sovereign.
Some pieces of EU legislation, those called Regulations rather than Directives, are directly applicable and directly incorporated into UK law. These do not require a parliamentary vote to become law. However, if there is any question regarding the interpretation of the legislation, or if it appears to contravene a piece of UK legislation, the courts are asked to make a decision on how it should be interpreted. This is entirely usual practice. Not weird. Not abnormal. Not always requiring the combined efforts of a hair dresser and a ‘city slicker’.
What do the courts do? Well. First, they decide whether a person is innocent or guilty in all sorts of situations. Second, they are there to INTERPRET LAWS and to INTERPRET THE CONSTITUTION (given that it is unwritten, it often needs interpreted, and this has to be done by *gasp* legal experts…) The high court will look at legislation, look for contradictions between decisions, look at precedent and make a decision about how the constitution should be enacted, and how laws should be interpreted.
Now. Brexit fanciers have long proclaimed that they are in favour of Parliamentary Sovereignty. You know, asking Parliament to vote on proposed legislation, and any proposed changes to the British system. But, the government (which is admittedly drawn from parliament in our non-separation of powers system) decided that they should be able to make decisions without consulting parliament – directly in opposition to the notion of parliamentary sovereignty.
So if the EU does not obstruct parliamentary sovereignty, what does? The royal prerogative can. This is the idea that the monarch can, in extreme situations, bypass parliament and make a decision. The Queen no longer has this role, it has been delegated to the government, or more specifically to the Prime Minister whose main role (as an MP among equals) is to represent the monarch. The Royal Prerogative is normally only used for war time decisions. Not things like completely revising the constitution. With no consultation of the people we have elected to represent us.
And on that topic. Why do we elect representatives? Because we live in a representative democracy, because (theoretically) we elect people to do a job so we don’t have to do it. So that they can be experts on running the country and we get on with our lives. So that they can look at legislation while we paint our toenails. A referendum bypasses these good people we have elected and thus undercuts parliamentary sovereignty. For that reason, for the reason of PARLIAMENTARY SOVEREIGNTY, in the UK a referendum can only be advisory, otherwise it is unconstitutional i.e. illegal under our political system. Yes, the outcome can be used to advise government, or to suggest a course of action to parliament, but unless a vote is taken in Parliament that confirms the decision, it is not final. This is how our constitution works.
On this basis of this let’s summarise:
The UK called a referendum. The Brexit camp lied about figures, the media was split, and the Remain camp could not find figures and looked divided.
The referendum returned 52% in favour of leaving the EU.
This was seized upon by media as meaning that the UK had LEFT THE EU! We now live in a ‘post brexit society’: except we don’t, because we have not left yet…
The political system exploded. Leaders left Parties. Parties imploded. The PM resigned.
The new PM decided to use the referendum to justify use of the Royal Prerogative to bypass a Parliamentary vote on leaving the EU.
Some people thought that might not really be legal within our unwritten constitution… and took the case to the High Court for interpretation of the law / the constitution.
Using precedent, reading of legislation and interpretation of the unwritten constitution, three judges ruled that Parliamentary Sovereignty remains key to our constitution, and that a vote in Parliament on triggering Article 50 would be a good idea, to avoid the principle of dictatorship from taking hold in Britain. Oddly, those people who were so in favour of Parliamentary Sovereignty in June, by November had realised they were unsure about its actual meaning, and are now suggesting a lack of democracy within the Courts. Oh and one tabloid is suggesting that the fact one Judge is openly homosexual is relevant to the debate. Given this, I suggest the British population stops reading the tabloid press and invests in a copy of a good British Politics text book. Get in touch, we can recommend a few, and a good degree in the subject.