The High Court Undermines Parliamentary Sovereignty

6 Nov

On 3 November, the High Court of England and Wales ruled that parliament, not the government, has the power to invoke Article 50 and trigger the UK’s departure from the European Union. This has generated glee from Remainers, and a bitter and sometimes ugly backlash from Brexiters. While the ruling is unlikely to lead to Brexit being thwarted, it is certainly a blow to democracy, one that illustrates the deep crisis of political representation that afflicts the UK.

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The ruling: undermining parliamentary sovereignty

Much Brexiter outrage focuses on the fact that three unelected judges are seen to be thwarting the democratic will of 17.4 million voters. Indeed, the Remainers who brought this case were not motivated by democratic impulses. They know that three-quarters of current Members of Parliament (MPs) are Remainers. By shifting control over Article 50 to parliament, their hope is that MPs will block Brexit, by overturning the referendum result of 23 June or, failing that, by kicking Brexit into the long grass.

The central question in the case was who has the right to repeal the legal rights and duties associated with EU membership that will necessarily follow from invoking Article 50 of the Lisbon Treaty. In the UK’s constitution the conduct of foreign relations, particularly the (un)making of treaties, is a matter for the ‘Crown’, whose ‘prerogative’ is exercised by the executive branch; hence, the government argued that it had the right to invoke Article 50. Remainers argued that the EU treaties are special because EU laws enacted under those treaties directly affect the rights and obligations of British citizens. Since the civil wars of the seventeenth century, only parliament has had the constitutional authority to repeal laws or make new law. Invoking Article 50 would lead to withdrawal from the EU and this will effectively repeal a wide range of laws giving British citizens various rights and obligations. Therefore, the Remainers argued, only the (the overwhelmingly Remainer) parliament has the constitutional authority to set that process in motion.

The judges sided with parliament – which may appear to be a victory for democracy. But considered in its political context, the judges’ legal argument actually subverts the democratic content of parliamentary sovereignty.

To begin with, what Remainers are ultimately in favour of is not the restoration of parliamentary sovereignty over the powers of the executive but remaining within the EU, and remaining within the EU necessitates parliament relinquishing a considerable part of its power to make law to the executive. The European Communities Act 1972 automatically enacts EU law as UK law, without requiring parliament to pass any further statutes each time EU law changes. UK ministers contribute to making EU law through their activity in the European institutions. The power that ministers are exercising when they make those EU laws is nothing other than the Crown’s prerogative to conduct international relations. The result is that Remainers who loudly claim to be upholding the sovereignty of parliament against Theresa May’s reliance on the prerogative are the same people who want parliament to continue to surrender a significant part of its law-making powers to the Crown in the form of EU law-making.

If the prime minister did use prerogative powers to implement Article 50, this would not involve the Crown taking powers away from parliament. Parliament asked the British people in the referendum whether we wanted to retain the rights associated with EU membership, and a majority voted not to. If the government invokes Article 50, it would simply be implementing a democratic decision called for by parliament itself. Moreover the government has pledged to maintain all of the legal rights and duties in domestic law that arise from EU law, allowing parliament to retain, repeal or amend them after Brexit.

Parliamentary sovereignty is threatened far more by the legal ruling than it is by Theresa May. The judges’ insistence that parliament’s sovereignty requires parliament to make the decision on Article 50 pretends that the decision has not already been made by the people that parliament is supposed to represent. The judges’ ruling therefore opposes parliamentary sovereignty to popular sovereignty. The political authority of parliament ultimately derives solely from the extent to which it represents the people. By encouraging and empowering our political representatives to set themselves against the majority decision, the ruling has the effect of undermining the true sovereignty of parliament in the name of upholding it.

The crisis of representation

The ruling underscores the deep crisis of political representation in Britain. Theresa May’s reluctance to hand the authority over Article 50 to parliament is not simply because she thinks ‘revealing our hand’ is a bad negotiating tactic. It is because she cannot trust the predominantly Remainer MPs to accept the referendum result, and can foresee disaster should they refuse to do so. A large majority of the public backed May on this, suggesting that they, too, do not trust MPs to represent them. The same sentiment is conveyed by the shrill Leaver reaction to the court’s judgement.

This is not a ‘constitutional crisis’, as some are saying; it is a crisis of political representation, expressing the disconnection of the political elite from the electorate. Parliament has been exposed as highly unrepresentative: 74% of them – and every political party bar UKIP and the Ulster Unionist parties – backed Remain, versus just 48% of the voters. Many MPs have openly expressed a desire to frustrate the outcome. This creates a situation where it is the executive branch that more accurately represents popular sentiment by pledging that ‘Brexit means Brexit’.

This is hugely problematic precisely because, as TCM has repeatedly argued, open debate and participatory democratic processes are now vital to determine what Brexit actually means in practice. The majority of people favoured leaving the EU, thereby authorising the government to change the law accordingly, including by repealing rights associated with EU membership. Nevertheless, the exact nature of Brexit was never defined during the campaign; no one can seriously argue Leave voters endorsed any particular option.

From the democratic point of view, it would be good to have as wide a political debate on this question as possible. The Brexit negotiations are not a matter for secret diplomacy, still less are they a poker game. The terms of Britain’s departure concerns us all. If Brexit is going to restore representative democracy, and strengthen parliamentary sovereignty, then the process should begin with collective political debate on defining what Brexit means. This involves representing the interests of both Leavers and Remainers. The referendum produced a clear result, but 16 million people still voted to Remain. They must accept that they lost on the fundamental question of EU membership, but are fully entitled to have their concerns and interests reflected in discussions on the nature of Britain’s departure.

However, the crisis of representation is such that, although parliament should be making decisions on the form of Brexit, it is unrepresentative with respect to Brexit itself, and therefore ought not to be given a veto over Britain’s departure from the EU – which is what giving MPs a final say over Article 50 does.

The real threat to parliamentary sovereignty arises from legislators’ continuing willingness to hold Brexit hostage, which is only encouraged by the High Court’s judgement. If MPs really respected the true basis of parliamentary sovereignty – the will of the electorate – they would stop blackmailing the electorate. They would unambiguously commit themselves to respecting the referendum result and leave invoking Article 50 to the executive. They would confine themselves to debating how best to implement the judgement of those who give them their authority. As long as they refuse to do this, too many electors will not trust them to be involved and the government can correctly stake a greater claim to true representativeness and to the political authority to keep the negotiations secretive.

Will the judgement foil Brexit?

Despite Leaver anxiety, the simmering mutual antipathy between the Leave majority in the electorate and the Remain majority in parliament will probably keep the UK on course to leave the EU. Work to model the EU referendum results at constituency level shows that 421 out of 574 English and Welsh constituencies probably voted Leave, and 270 definitely did, while only 152 constituencies probably voted Remain, while only 76 definitely did so. If MPs defy the referendum result, they would face an enormous backlash and many could lose their seats.

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Theresa May understands this – which is why she has doubled down on Brexit, reiterating her intention to invoke Article 50 by March. Many Remainer MPs too are hearing the electoral message, and now say that parliament’s role is to scrutinise the government’s negotiating position and ensure that Britain pursues an approach that protects British interests – from their perspective, staying in the single market. Following the ruling the Labour Party leadership has reiterated that Labour will not block Article 50, but will just ‘fight for a Brexit that works for Britain’. True, some MPs are still clinging to the idea of a second referendum on the final deal, but for reasons we have outlined previously, that is both politically unacceptable and impractical, making it very unlikely to fly in the Commons. The betrayal of the referendum result is therefore technically enabled by the High Court’s judgement, but remains politically unlikely.

If it does happen, the consequences will be unpredictable. One possibility is that Leave voters will rebel against their turncoat MPs, forcing their deselection or defecting to other parties – possibly reviving the disintegrating shambles that is now UKIP. While this revival would be a regrettable result of Remainer intransigence, it would at least have the positive outcome of disciplining the people’s representatives, showing them that they cannot continually defy the voters’ will. That might actually strengthen representative democracy. However, another possibility is that parliament’s frustration of the referendum result deepens popular cynicism towards the electoral system and the elitist Remainer parties populating it. The electorate will then increasingly look for solutions that attack and circumvent this system, making them prey to extremist populist appeals.

Although Remain MPs appear to be seeing sense, the possibility that parliament might frustrate the majority decision in the referendum is still a greater threat to democracy than giving the executive wide discretion to interpret the result, undesirable as that is.

The Supreme Court may yet dig parliament out of the mess it has got itself into by finding a way to reverse the High Court ruling when the government appeals in December, though it would be unwise to set too much store by the judges’ democratic instincts. The highly personalised attacks on the High Court judges in the Brexit-supporting media are no doubt intended to intimidate the Supreme Court. If the court does not overturn the ruling, a general election may be the only solution. Whatever the final result of the legal proceedings, parliament is at a crossroads. MPs can choose to undermine democracy further by continuing to delay or frustrate the implementation of the majority’s decision. Or they can participate in the renewal of democracy by giving up their claim to have a right to do so.

Lee Jones and Peter Ramsay

18 Responses to “The High Court Undermines Parliamentary Sovereignty”

  1. jordanosserman November 6, 2016 at 11:49 pm #

    Is there any point a which a Brexit agreement crafted by May ceases to represent the Will of the People, or is she to be granted full power to generate as regressive a Leave agreement as she can manage in the name of Democracy? I understand you propose an open debate on how Brexit will proceed but do you honestly believe May is interested in experimenting with direct democracy? Perhaps the high court ruling is neither to be praised not condemned but understood as just another twist in the battle between the forces of right and left neoliberalism that have predetermined the contours of the entire Brexit debacle.

    • Deborah November 7, 2016 at 7:56 am #

      I agree. The reality is the Tories need to be forced to the table and be subjected to parliamentary scrutiny and debate. That is the only way ‘we the people’ will hear what they have planned.

    • Peter Ramsay November 7, 2016 at 8:17 am #

      The reason that May continues to have the political authority of the referendum behind her is that too many MPs, especially in the Labour Party have refused to accept the legitimacy of the referendum result. Don’t forget that the Tories were in utter disarray in the aftermath of the referendum. If they are in firmer control now that is because the petulant anti-democratic reaction of their opponents has sidelined any other interests. If MPs had accepted that they had received a clear instruction from the electorate and got on with it in that spirit hen they would have some authority with which to force May back to parliament. And that would be a good thing. But they didn’t do that and they have no authority as a result. That’s what we mean by a crisis of representation.

      • Deborah November 7, 2016 at 8:42 am #

        I think you are wrong. In fact Labour has been entirely ambiguous because it is split. The reason it is split is that it’s leadership is anti-EU and membership pro. Moreover, the wording of the Ref was dubious and vague (and a rejection of something rather than a vote for something), the outcome was pretty even split, the campaign bought by lies, and the language intemperate. It is ideology which means that a plan can’t be enacted on the will of all the British people, partly because no-one knows what that will is in practical terms. Just because you think you know what you want, doesn’t mean that the next Leave voter will agree with you. If the LP totally backed the cause of remain it would actually do better. After all, it will never win your average UKIP supporter – that’s the right’s business (or rather mess) to sort out.

        And I’m afraid we have a representative or parliamentary democracy, which means that our government is meant to act on behalf of ALL the people. So tell me, what does that mean (or do you agree with your fascist comrades that we should be put in prison)?

      • Lee Jones November 7, 2016 at 5:47 pm #

        @Deborah

        “the wording of the Ref was dubious and vague”

        The wording of the referendum could not have been clearer: to continue our membership of the EU or not. What the “not” option means in detail was, however, as TCM has repeatedly argued, not spelled out in any coherent manner, which is why participatory debate is now needed to define Brexit.

        “If the LP totally backed the cause of remain it would actually do better.”

        Well, it would lose a lot of its Nothern and Welsh heartlands to a revived UKIP, but maybe you imagine they would pick up seats elsewhere. I doubt it.

        “And I’m afraid we have a representative or parliamentary democracy, which means that our government is meant to act on behalf of ALL the people. So tell me, what does that mean (or do you agree with your fascist comrades that we should be put in prison)?”

        Putting aside your silly final comment, the blog clearly says what representative democracy should mean: MPs should represent “the interests of both Leavers and Remainers. The referendum produced a clear result, but 16 million people still voted to Remain. They must accept that they lost on the fundamental question of EU membership, but are fully entitled to have their concerns and interests reflected in discussions on the nature of Britain’s departure… [MPs should] unambiguously commit themselves to respecting the referendum result and leave invoking Article 50 to the executive. They would confine themselves to debating how best to implement the judgement of those who give them their authority.”

  2. Deborah November 7, 2016 at 7:54 am #

    I think, as someone that voted remain (as opposed to being a member of an out group you’ve created called ‘Remainers’ – it’s like you are living in some kind of historical re-enactment of the Cavaliers and the Roundheads), my main concern all along as been democracy. The right have attempted to engineer a coup in the EU Ref vote, and will use it to push through all sorts of neoliberal/free market/Randian initiatives. It was the wrong decision at this time, for this government.

    Your post is full of inaccuracies or rather, sleight of hands. The Uk had a great deal of power in the EU to overturn proposed law, and what has been adopted as UK law has generally been for the better. Alas, nothing is perfect, but it will be a lot less perfect if we leave (again, for now).

    In addition, you have not mentioned in your post the rise of racist and fascist sentiment in the press and mobilised in communities. This leave vote is the revenge of the white man (and I do notice you are all, well dare I say it). They are hardly democratic, are they?

    You are academics. It is your job to take all facts to view, not just the ones you politically agree with. In being as selective as you are, you undermine trust in your profession.

    • Peter Ramsay November 7, 2016 at 8:48 am #

      Deborah

      The speed with which you stoop to personal attacks (you’re all white men) political slander (‘your fascist comrades’ ) and exaggeration (referendum is attempted coup) indicates the strength of your arguments.

      • Deborah November 7, 2016 at 8:53 am #

        You haven’t really engaged with my argument have you though, and it’s only a personal attack if it’s personal, and not true. And surely even you would have pause to reflect about the fact that you are voting (and acting) on the same side as fascists and Randian libertarians. YOU are the ones who failed to mention the growth in hate crime as a result of the Ref, because YOU clearly don’t think it’s important, because maybe, it doesn’t affect YOU. You sold us down the river, along with EU residents and all ethnic minorities. Have a think about that, will you.

    • Lee Jones November 7, 2016 at 5:54 pm #

      “YOU are the ones who failed to mention the growth in hate crime as a result of the Ref, because YOU clearly don’t think it’s important, because maybe, it doesn’t affect YOU.”

      Deborah, if you bothered to look you will see we have covered the issue of hate crime in several prior posts, e.g. https://thecurrentmoment.wordpress.com/category/racism/ Lots of things don’t affect us personally, e.g. as academics we are not poor, but we are all passionately committed to the poor, oppose austerity, etc. It is very silly to suggest that just because it does not affect one directly, one does not care.

      “The Uk had a great deal of power in the EU to overturn proposed law”

      The UK only had as much power as any other member-state, i.e. its sovereignty was diluted by the presence of 27 others.

      “and what has been adopted as UK law has generally been for the better.”

      That is your opinion. We would not deny that some EU laws may have positive effects. The problem is that these laws do not emerge from the will of the people whom they govern. They are, accordingly, illegitimate.

      “You are academics. It is your job to take all facts to view, not just the ones you politically agree with. In being as selective as you are, you undermine trust in your profession.”

      We have been researching these issues for a decade or more. Our posts here emerge from careful reflection on all of the facts. But ultimately we are happy to say that we are guided above all by a commitment to democracy.

    • James Aber November 7, 2016 at 6:16 pm #

      By ‘coup’, do you mean an elected government doing something that Deborah doesn’t like (e.g. leaving the EU, or ‘neoliberal/free market/Randian initiatives’)?

      That doesn’t seem particularly undemocratic to me. I’m no fan of ‘Randian initiatives’ – I’m not even sure what they are – but shouldn’t an elected government be free to do them, even if Deborah doesn’t like them?

      If anything the opposite seems less democratic – the dictatorship of Deborah, where the elected government may only do things as long as they please Deborah. I suppose that could be democratic – as long as you define ‘the people’ as ‘Deborah’.

      But I do have to concede your point about the Leave vote being the revenge of white men. Because the EU is, of course, made up entirely of ethnic-minority women. http://www.debatingeurope.eu/2015/02/09/why-are-so-many-european-politicians-middle-aged-white-men/

  3. HowardtheCoach November 7, 2016 at 9:48 am #

    Here’s a definition for you: “Representative democracy (also indirect democracy, representative republic, or psephocracy) is a type of democracy founded on the principle of elected officials representing a group of people, as opposed to direct democracy.”

    Your argument is essentially that representative democracy is flawed by its “failure” to mirror direct democracy accurately. Is it not worth at least considering the possibility that the tension between direct and representative democracy is not a design flaw but rather another of the checks and balances built into liberal democracy to defend itself against occasional outbursts of popular but misguided sentiment.

    • greygossling (@greygossling) November 7, 2016 at 11:02 am #

      Yes, well put! Was going to say the same in a different way.

      “the possibility that parliament might frustrate the majority decision in the referendum is still a greater threat to democracy than giving the executive wide discretion to interpret the result, undesirable as that is.”

      This is a total failure to understand our representative democracy. For it to be a representative democracy the representatives must have ability to ‘frustrate the majority’, even though it is extremely unlikely. Giving the executive ‘wide discretion’ is exactly what will endanger democracy in the UK, as we’ve seen in Turkey, Poland & Hungary.

      • Peter Ramsay November 7, 2016 at 1:19 pm #

        Our argument is not that parliament has failed to “mirror direct democracy accurately” as you put it. Our argument is that for parliament to insist upon its technical constitutional rights in this case is to undermine its own claim to be a representative institution.

        The referendum only occurred because parliament willed it. Having asked the people to decide the question of EU membership, parliament got a clear answer. Therefore no democratic political authority is being denied to parliament if the Crown enacts Article 50. When so many parliamentarians have made clear their willingness to frustrate the result of a referendum that they overwhelmingly voted for, to insist on parliament’s technical legal power to do just that is to suggest that parliament could have the right to reverse the referendum result or to kick it into the long grass. In substance this is to say that the electorate’s view only counts if it accords with the representatives’ views. That has democratic political representation standing on its head.

        If you have a Madisonian view of political representation then that is all to the good – as you say the point is to frustrate the rule of the people when the people’s view is not consistent with the interests of the political elite. If you have a democratic view of political representation, as we do, the point is that representatives are there to represent us – not us to represent them. Democratic political representation is in very bad shape. Continuing to mock the political authority of the majority of the electorate in the way that the claimants in this case and their parliamentary supporters are doing is very irresponsible indeed.

      • James Aber November 7, 2016 at 6:25 pm #

        Can’t encouraging representatives to frustrate the majority also endanger democracy?

    • James Aber November 7, 2016 at 6:22 pm #

      How do we know that it’s people and not the representatives who have the misguided sentiment?

      • James Aber November 7, 2016 at 6:26 pm #

        *How do we know that it’s the people and not the representatives who have the misguided sentiment?

        (How do you edit comments on this damn thing?)

  4. James Heartfield November 8, 2016 at 8:18 am #

    I agree with Lee and Peter.
    There’s a lot of confusion about whether the three High Court judges have upheld of struck down democracy. The right answer is ‘struck down’. The reason is that Parliament orders its own affairs. That is what Parliamentary sovereignty means. In telling Parliament to debate a particular motion the High Court is not freeing Parliament, it is dictating to it.
    As Walter Bagehot explains in The English Constitution the government is just a sub-committee of Parliament, to which the whole house has derogated its day-to-day powers. If the house wanted to debate Article 50, they could, at any time… as indeed they have on several occasions. The first time they debated it since the referendum, the leader of the opposition said that the government should start Article 50 straight away.
    The court’s performance of defending Parliament’s rights was just a disguise for the actual de-railing of them. As they said at the time, the court knows nothing of public opinion but what Parliament tells them: in which case, why is the court telling Parliament that it must sit and debate an issue? Surely, Parliament knows its own mind and responsibilities?
    A comparable case would be that of those laws that oblige trade unions to carry out postal ballots before striking. The laws were claimed to empower members of unions. But in fact they are an intrusion on the unions’ own internal decision-making. Everyone know that the trade union laws – called by everyone ‘anti-union laws’ were not framed to free unions, but to trip them up, and by delaying and tying up in red tape limit their freedom to act. So it is with the High Court.
    No-one who takes delight in the Court’s decision, not Gina Miller, nor the Court’s defenders in the broadsheet press is motivated by a desire to see Parliament sovereign. Not, indeed, are the three judges themselves, who have offered us a turd and called it chocolate.

Trackbacks/Pingbacks

  1. Let them Dare! … Quick Thoughts on Article 50, Brexit and the US election | thephilippics - November 8, 2016

    […] Months after the national vote to leave the European Union, the Brexit referendum continues to roil British politics. The bad faith and hypocrisy are striking. Since the legal ruling granting parliament a vote on Article 50, Remainers defend the British judiciary and parliament  while in the same breath clearly hoping that parliament will use the opportunity to thwart, subvert, undermine or variously dilute Brexit to the greatest possible extent (i.e., that parliament will act to restore the power of the Crown over parliament through the device of for…). […]

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