The sovereignty of Parliament is uncontested. The Supreme Court reminded us in the Gina Miller case as have a thousand constitutional commentators before and since. This is the law and it is correct.
A recently formed group of MPs – the Independent Group – have proclaimed their independence of their former parties and the manifestos upon which they were elected. Other MPs, including some in the cabinet itself, openly agree. As Edmund Burke famously proclaimed in 1774, they are not the mouthpieces of their electors, but the independent arbiters of the national interest. Thus, if, in their opinion Brexit or a No Deal Brexit are not in the national interest, then they can and should oppose them. Manifesto commitments to constituents are of no relevance. Advisory referendums even less so. The Supreme Court would approve. Edmund Burke would be proud.
Parliament is now flexing muscles it forgot that it had. We may well soon see Article 50 revoked or a so-called “Peoples Vote” (with Remain as an option, of course) authorised. These are profound constitutional decisions for our great Parliamentarians to make. Let us pray they make them wisely.
However, this is new.
Not that long ago, Parliament would have first consulted the people. Nowadays, you can read endless learned articles on the constitutional issues facing our nation and have no idea that the electorate even exists. The airbrushing-out of voters from constitutional change may not be such a wise idea.
Four years ago, before Brexit was even a word, I wrote a pamphlet to challenge Parliament’s recent power grab of the constitution. MPs had suddenly decided to abandon their traditional self-restraint when it came to constitutional change.
Hitherto, the most profound decisions in recent generations had first received public approval at the ballot box – either directly in a referendum or indirectly from successful general election manifesto pledges. Heath didn’t decide to join EEC on a whim, it was in his 1970 manifesto. Wilson didn’t wake up one morning and decide to call a referendum on staying in the EEC, he was fulfilling his October 1974 pledge to the people. Scotland and Wales didn’t even have the right to decide if they wanted devolution until Blair won in 1997. Whatever your view of the 2016 referendum, no-one challenged Cameron’s right to delete the 1975 result and hold a new one – it was in his 2015 manifesto and he had won.
Parliament’s decision to authorise an independence referendum for Scotland was the turning point. Whilst perhaps understandable given the widely-held view, myself included, that this is a matter for the Scottish people, only six MPs could claim a mandate on the matter. Six. Not many for a decision that could have made Brexit look like a picnic.
Parliament used to understand that it knew it needed a mandate for the public to accept fundamental change. Parliament always had the power, but they also knew that without a mandate, they did not have the right.
The biggest changes need the consent of the people. This is the underpinning, the mechanics, the underlying grammar of British democracy. It strikes at the heart of the rule of law. The law isn’t respected because the Supreme Court says so, but because, at its most fundamental level, the public know that they have a hand in making it.
Ask yourself how the monarchy could one day be abolished. What would the process be?
Your answer probably included the word “referendum” or “mandate” from a general election pledge. I doubt very much if your answer was that MPs could decide this whenever they want. If Parliament voted tomorrow to abolish the monarchy, it would be 100% legal (Royal Assent notwithstanding). Nothing more to be said? We must accept the reality that the British public would struggle to accept a profound constitutional decision such as abolishing the monarchy without their consent.
The ”monarchy question” is fundamental.
Parliament is sovereign, but only up to a point. This isn’t the law; it is the reality of how democracy works in the United Kingdom. Constitutional change requires a mandate for the people to accept it.
The doctrine of Westminster omnipotence and Parliamentary infallibility is all rather odd and, dare I say, not very British. Parliament now feels perfectly entitled to cancel Brexit or call another EU referendum. If you’re looking for a mandate for either of these propositions, you will look in vain.
We are told circumstances have changed, but circumstances always change. We are told no-one voted to make themselves poorer. Really? How many Leave voters did you ask? It seems that voters are no longer entitled to prioritise sovereignty over economic certainty.
Parliament is now unmuzzled. Manifesto pledges are for wimps. The consent of the people is unnecessary. MPs know best.
Is it not an MP’s first duty to act in the national interest? Quite so. Yet these unerring interpreters of the national interest were surprisingly reticent to share these perceptions of Brexit when they stood for election.
One has to wonder how future general elections are to be conducted. Is there any point producing a manifesto? What exactly can a future candidate pledge to voters that they will not feel fully justified to completely ignore or do the precise opposite should the fancy takes them.
Alternatively, we can rediscover how our democracy works. That you stand for election on promises you intend to keep. It’s all terribly old fashioned, but it used to serve us rather well.
The great things about the British people is that they can tell when someone’s getting too big for their boots. Ask Churchill in 1945 or Thatcher in 1990. So it may be with Parliament itself. At the time of writing, one of our august Parliamentarians facing these great question will walk into the hallowed lobbies of the House of Commons wearing a tag, as a convicted criminal.
The new Burkean saints would do well to remember that Burke made his famous oration to the electors of Bristol in 1774 only after they had elected him, not before. Perhaps unsurprisingly, he found another seat to contest at the next election.
Let us hope MPs rediscover their humility. Let us hope they do so very soon.