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Brexit means Brexit

This plain statement by our new prime minister would appear to settle the matter. But there are some — including prominent and influential voices — who cast doubt at least on the substance and even on the form. The argument is that parliament or the law courts should if not overrule or rerun (though some have argued even that) at least circumscribe or delay the verdict of the referendum. The implication is that a referendum is somehow illegitimate or at least inferior as an expression of political choice, and that it is contrary to our long constitutional history that has made parliament sovereign. Hence, a sovereign parliament should make the final decision as to whether Brexit doesin fact mean Brexit.

Who or what is sovereign — who or what has the final say — is a reality of history and politics as least as much as a question of law or theory. The test of who is sovereign is who would ultimately be obeyed. This is a test we must hope never to have to apply, because to do so would mean that the political and constitutional system had broken down. In a normally functioning democratic nation like ours, sovereignty — or to be more precise the exercise of sovereign powers — is divided between institutions.

The idea that parliament is the ultimate sovereign probably derives mainly from the writings of the great Victorian constitutional lawyer A. V. Dicey, but he makes it clear that this applies solely to legislation: parliament can make or unmake any law and none of its laws can be overridden by any other authority. Parliamentary sovereignty does not mean executive authority or judicial authority. It means the supreme authority to make laws, ‘neither more nor less’ in Dicey’s words. Montesquieu defined the ‘separation of powers’ as the hallmark of a free government. British government — unlike that of the United States — has never conformed exactly to this model, but in broad terms it does. The Crown governs, through ministers, but the Glorious Revolution of 1688 stopped it from legislating. Parliament legislates, but since the fiasco of the Puritan Commonwealth it does not govern. The Courts interpret and apply the law.

Does this mean that parliament is a sovereign body superior to the popular will — expressed in this case through the extra-parliamentary channel of a referendum? Direct popular participation in crucial political acts has been part of our history since time immemorial. Until the twentieth century, not all could participate equally, but acceptance that popular consent was necessary to legitimate authority has always been a foundation of governance. In Anglo-Saxon times there was a ‘council of the English people’, and the 1008 law code was issued ‘on the decree of the English council’. The later medieval concept of ‘the community of the realm’ meant not only the barons, bishops and knights who sat in parliaments, but merchants, craftsmen, yeomen, and in some circumstances everyone. I am not referring to acts of rebellion — of which of course there are many, from the 1381 peasants’ revolt to the Suffragettes — but to popular participation in a national political process, albeit often an improvised one. When Edward II (one of England’s worst kings) was deposed in 1327 it was with the support of what a chronicler called ‘the whole community of the realm’, and ‘a great multitude of people,’ who attended sessions in Westminster Hall. The crowd was literally given a voice, shouting for Edward to be replaced. It also had a voice at coronations, when it acclaimed the new monarch — a reminder that monarchy always had a consensual, even an elective, element; and although this became symbolic, symbols recall important truths. When the Glorious Revolution replaced James II with William of Orange, it was preceded by numerous county and town meetings of citizens — sometimes bearing arms — which directly expressed the popular will. A special Convention Parliament had to be summoned, as it had been at the Restoration of Charles II, to put into law the revolutionary changes from which our modern legal and political order proceeds. Parliaments, whether specially summoned or not, were instrumental in some of these great events; but parliaments acting with and as the voice of the national community, not separate from or independent of it.

Does this mean that the people, not parliament, the Crown or the courts, are the true sovereign, the ultimate source of authority? I would say — as a historian, not a constitutional lawyer — that it does: the people do not govern, or legislate, or interpret the law, but they are the ultimate source of the authority of those who do. The idea that parliament itself, in some hermetically sealed manner, holds ultimate sovereignty on the grounds of its inherent wisdom, and that this enables it to oppose a clearly and legally expressed popular choice is a strange perversion of history and of common sense. But we do not have to go so far as to proclaim the sovereignty of the people, if we find that a step too far. Popular consent by the people is a more modest and familiar concept. Expressed in a variety of ways, this consent has always been regarded as necessary for legitimate government. The referendum shows that the majority of the people no longer consent to government within the European Union. It would be a foolhardy parliament or law court that tried to ignore this reality.

 

Professor Robert Tombs

Robert Tombs is Professor of French History at the University of Cambridge and a Fellow of St John’s College. He is co-editor of Briefings for Britain and his publications include The English and Their History (2014) and, with Isabelle Tombs, That Sweet Enemy: The British and the French from the Sun King to the Present (2006). His Politeia publications include The State, National Identity and Schools (2017, with New Direction) and Triggering Article 50, Courts, Government and Parliament (2017).

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