The Brexit referendum and the problems of implementing its outcome reveal a deeper constitutional tension between parliamentary and popular sovereignty. To understand this, we need to contrast the traditional UK constitution, based on parliamentary sovereignty, and what I would call the ‘democratic constitutionalism’ that exists in most of continental Europe.
In a parliamentary sovereignty, there is no law higher than that parliament itself makes. A law parliament makes today, it can unmake tomorrow. In this way, parliament is sovereign. With democratic constitutionalism, the parliament or legislature is subject to a codified constitution – an entrenched, higher law that constrains what the parliament can do. That constitution gets its legitimacy from some process that involves ‘we the people’. That’s where popular sovereignty comes in: ‘we the people’ author a higher, entrenched law, which then acts as both a support and a constraint on the ordinary politics that goes through the parliament.
Political theorist Bruce Ackerman makes a helpful distinction between what he calls ‘ordinary politics’ and ‘constitutional politics’. Under a written constitution, ‘ordinary politics’ is the typical day-to-day parliamentary politics of making law and policy. That happens within this framework of an entrenched higher law. Then there is always the potential for ‘constitutional politics’, which is the politics of making or amending that entrenched higher law. Popular sovereignty comes in both constitutional and ordinary politics. It comes into constitutional politics in a process for creating and amending the constitution itself, and it comes into ordinary politics through regular elections and the usual processes of parliamentary democracy.
In Ireland, most law and policy is made by the Irish government, through the elected parliament. But the Irish also have a process for amending their constitution based on popular sovereignty, so there is also occasional constitutional politics. In recent years, the parliament has convened a citizens’ assembly, which addresses the constitutional issue and makes a recommendation, and the parliament, if it doesn’t object, puts that to a referendum. So ‘we the people’ are active in the political system at the level of ordinary politics through elections but also at the constitutional level in amending the constitution from time to time through this mechanism involving a citizens’ assembly and a referendum.
In the Irish system, the parliament still has a veto over what goes to a referendum. So there is a big question, in designing constitutional politics, of how ‘we the people’ retain control over that dimension of politics and don’t lose it to parliament. This relates to the case of the UK. In particular, it relates to the issue of how, if we have a citizens’ assembly process, would that relate to the UK parliament? Does the parliament set its agenda? Do its recommendations go back to the parliament? There are important questions here about the place of parliament in the process of writing and agreeing a democratic constitution.
The instability in the UK now is not just due to the Brexit referendum but because over the past 40-50 years, the UK has, in ad hoc ways, started to integrate ideas that are consistent with the democratic constitutionalist perspective but we haven’t made anything like a full transition to a regime based on popular sovereignty. On the one hand, we do have the idea that some laws are ‘higher’ than others, maybe some ought to be entrenched. For example, the Scotland Act 2016 and the Wales Act 2017 start by saying that the Scottish Parliament and the Welsh Assembly are permanent parts of the UK political system and can only be removed through referenda in those nations. The acts of parliament are trying to say that these institutions are entrenched, and that you need a special political process to change them. But the contradiction is that this is all being said in an act of parliament, so ultimately it is still possible for the UK parliament to repeal these acts and abolish the Scottish Parliament or Welsh Assembly without a referendum.
Politically this might be a very bad idea but there is no legal obstacle – because there isn’t an entrenched, higher law to which parliament is subject. We have a situation where there is a widespread aspiration to create something like entrenched, higher law but the system can’t deliver it.
Under democratic constitutionalism, there would be an entrenched, higher law around something like devolution – so, if the UK parliament moved to abolish it, a UK constitutional court could say: ‘You are violating the constitution and we will take action to stop this unconstitutional move.’
The instability in the UK now is not just due to the Brexit referendum but because we haven’t made anything like a full transition to a regime based on popular sovereignty[/pullqoute]
I don’t expect any UK government to do something as stupid as abolish the Scottish Parliament, but it tells us something about the nature of the regime we’re in and how we have, in some ways, an aspiration to something like democratic constitutionalism, but can’t deliver on it. We’re in a regime with parliamentary sovereignty, not democratic constitutionalism. That means the supreme court, is, effectively, the legal custodian of parliamentary sovereignty. Its remit is subordinate to the principle that parliament is, in the final analysis, the legal sovereign.
So while our system is becoming unstable in one way with the pressure for higher, entrenched law, it is also becoming unstable in another way due to the use of referenda, particularly on issues to do with redesigning the political system itself. This use of referenda again seems to fit with democratic constitutionalism, and with the idea that there are constitutional issues over which ‘we the people’ should exercise control or authorship. It is creating much confusion about parliamentary versus popular sovereignty – which, of course, comes to a head with Brexit.
The classic account of parliamentary sovereignty, by the late 19th early 20th century lawyer A V Dicey, makes an interesting distinction between ‘the political sovereign’ and ‘the legal sovereign’. Dicey says parliament is the legal sovereign – there is no body you can appeal to about what the law is beyond parliament. But he also says there is a political sovereign. The political sovereign, he says, is the people.
Of course, he had quite a restricted understanding of who the people are in terms of class and gender. The legal sovereign, parliament, is subordinated to the political sovereign, the people. He saw that as working not through law but convention. In Dicey’s view, the constitution is partly a matter of laws – which courts can acknowledge and enforce – but there is also a big role for what he calls conventions, the informal ethics and rules that political actors are supposed to acknowledge and play by even though they are not laws.
One example of political conventions is who has the right to vote. Since the UK does not have a regime of entrenched, higher law, it’s not a matter of constitutional legal right that every adult can vote in parliamentary elections. We have a law on the statute that more or less creates that situation but if we ask, ‘What holds that law in place?’, the answer isn’t that it’s constitutionalised, part of a higher, entrenched law. Parliament and politicians accept, as a matter of convention, that it’s appropriate to have a law that gives every adult the right to vote, but there is nothing in principle to stop parliament deciding that it should only apply to people with an annual income over £50,000. The right to vote is not in a written constitution.
For Dicey, the referendum has a key role in maintaining the relationship between the political and legal sovereign. He was an early advocate of introducing the referendum into the UK political system. He was a strong opponent of home rule for Ireland and worried that a parliament dominated by the Liberals would introduce it. He thought that referenda could provide a brake, or a veto, on what parliament could do.
In Dicey, we see an intimation of where some Brexiters have got to with the constitution: that parliament is the legal sovereign but the political sovereign is the people and the referendum a key means of subordinating parliament to the people. It’s a sort of Diceian populism: it says that while parliament remains legally sovereign, the people are politically sovereign and their sovereignty as a political body is, in part, maintained through this convention that parliament holds and respects the results of referenda.
There are three positions in the current constitutional debate. One says we should repudiate all this referendum stuff and go back to seeing ourselves as a regime based on parliamentary sovereignty, accountable to people just through elections. A lot of Remainer rhetoric sometimes seems to have that quality to it, especially when they say it was an ‘advisory referendum’ which doesn’t speak to the political reality of it.
Then there are two positions that accept popular sovereignty in the referendum but in different ways. On the one hand, there is Diceian populism, which wants to keep parliament as the legal sovereign but add the new convention that it should defer to the people in referenda. It is unclear how – and on what issues – that is supposed to work. On the other hand, there is the democratic constitutionalist view, which can see a place for referenda and popular sovereignty but in the context of an entrenched, higher law – a codified constitution that would limit parliamentary sovereignty.
So there is a dispute about parliamentary versus popular sovereignty and there’s another dispute about whether popular sovereignty has to be linked to creating a codified, higher, entrenched constitution. I’m with the democratic constitutionalist camp. I want fully to realise this aspiration to create entrenched, higher law – and the referendum shift. But I want to see them glued together more systematically as an expression of democratic constitutionalism.
To understand what difference this constitutional approach would make compared to relying on convention, we’ve seen the way it would secure the rights of Scotland, Wales and Northern Ireland. If we’re moving towards some sort of effectively federalist UK, then we need to entrench that.
Another motivation for creating some system of higher law, of course, is to do with the protection of individual rights. There was a push among some judges in the 1990s-2000s, for ‘common law constitutionalism’. In the 2000s, it was connected to anti-terror legislation, the treatment of asylum seekers and a concern to try to carve out protections for individual rights against authoritarian government action in those kinds of areas.
It was a legal philosophy that, summarising crudely, said that English common law implicitly contains human rights that constrain what parliament can do in relation to these rights. It is basically a lawyer/judge driven process of identifying these rights. It’s not clear that it has democratic legitimacy. The best way to protect these rights would be through democratic constitutionalism, to have a process through which ‘we the people’, or ‘peoples’, of the UK agree to a set of individual and social rights.
What’s at stake in constitutionalism, in part, is a more secure protection of individual rights. Part of what a constitution does is to act as a protection against tyranny of the majority. Diceian populism is lacking because you haven’t got an entrenched higher law, you haven’t got those additional protections for minority nations or individual rights.
To complete my sketch of democratic constitutionalism tied to the idea of popular involvement, and the involvement of ‘we the people’ in defining the constitution, we need to understand the particular role of the executive in Britain. This means enquiring beneath the mystique of the ‘crown-in-parliament’.
In contrast with most European countries, the UK’s parliamentary democracy exists in the context of a constitutional monarchy. We know the queen doesn’t have any power, but the crown-in-parliament acts as a disguise, a source of legitimacy, for an exceptionally high degree of executive power. Just as I’ve described with the growth of referenda, there has been a steady erosion of the royal prerogative through modifying political conventions. For example, the prerogative to declare war, previously exercised by the prime minister in the name of the crown, has been eroded by the pressure for parliamentary debates over military actions. As a consequence, the convention is that the issue must be debated and decided on by parliament. Theresa May and then Boris Johnson used the royal prerogative over Brexit, and then the courts were brought in to require the debate in parliament.
We are facing the fact that we haven’t been through the same kind of systematic, democratic revolution as many other countries. We have a ‘democratic’ system that evolved out of a feudal monarchy; hence the live residues of this anti-democratic tradition. We need now to complete our democratic revolution and sweep away these monarchical institutions, which have proven ready tools in the hands of anti-democratic prime ministers, including, most recently, Boris Johnson.
Stuart White is a lecturer in politics at Oxford University working on republicanism, democracy and the economy. He was talking to Hilary Wainwright.
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