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Who will run Britain?

#BrexitFiles

The vote to leave the EU has shed light on the creaking, complicated British constitutional settlement 

When Vote Leave launched the campaign slogan, “Take Back Control” I remember pausing and appreciating the electoral genius of it. Three words had summed up a sentiment so powerful it drew in swathes and their deep-lying feelings on migration, wealth distribution, and the sheer scale of that intimidating complex globalised world out there. I say this as someone who campaigned to Bremain.

If Lord Ashcroft’s polls are to be believed, chief amongst the reasons cited by Brexiters for their vote was “the principle that decisions about the UK should be taken in the UK” or in short the s-word, sovereignty. Why did so many people feel so moved to seemingly prioritise sovereignty over their economic self-interest (be it in the short, medium, or long term) at the EU referendum?

There is perhaps no higher notion than sovereignty in a democracy, the ongoing contemplations on where and how the natural power of the people should reside. However, if we accept that sovereignty naturally resides with the people and it is theirs to reclaim or attribute, this election has exposed problems in the structures of political power, namely our constitution.

In historical terms the Parisian political philosopher, Jean Bodin’s juridical account of sovereignty in the Six Bookes of the Commonweale remains one of Europe’s first and most compelling. He described (albeit in defence of absolute monarchy) sovereign power as containing the following broad constituent elements:

  1. Absolute – in that there could be nothing superior [except God in a non-secular territory e.g. the UK!] and that it could not be tried by any other tribunal.
  2. Indivisible – that a singular body was responsible for legislation and conduct of war/peace.
  3. Perpetual – the power is permanent.

In the UK, we consider Parliament as sovereign. One of the key arguments of the Brexit campaign was that Westminster, of its own volition, has regressed in each of these tests on sovereignty over the last 40 years of EU membership. Adopting Bodin’s redacted three-pronged framework, Eurosceptics have bemoaned the:

  1. primacy of EU law and judicial overreach of the European Court of Justice;
  2. unelected EU Commission initiating law-making;
  3. unlikelihood of reforming the EU institutions.

And so we left.

If scrutinising sovereignty and our constitutional framework is the offshoot new political fashion (I’d be overjoyed if it is), one aspect that has not gained popular cause to nearly the same extent as Euroscepticism is how domestically the Westminster parliament has bound itself into an increasingly fraught and unsustainable constitutional settlement, which is on its last legs, especially since the EU Referendum.

Asymmetric devolution has led to more complex interrelationships of divisible power between the political bodies in the UK. Whilst Westminster ultimately retains authority over the Union, Holyrood, Stormont, and City Hall have begun amplifying the democratic voice of their regions expressed at the EU Referendum. It is understandably difficult for their electorates to conceive that having been entrusted with their own differing levels of executive and legislative devolved power; they are now being overruled, on a matter of huge significance by England and Wales.The spectre of secession by Scotland and potentially Northern Ireland and Gibraltar, in order to retain EU membership stalks the UK constitutional arrangement. If Parliamentary sovereignty shrinks to England and Wales, it would be in and of itself a different entity. The perpetual nature of the UK’s sovereign power, as it is now constituted, would be over.

The Supreme Court is increasingly being tasked with adjudicating over constitutional matters, such as the relationship between branches of the state, that it was never overtly designated to deliberate on. The Prince Charles “Black Spider Letters” case last year, mercifully did not lead to amendments to the Freedom of Information Act, and the idea to confer wide powers of Ministers to override judicial decisions. Such a provision might have been “so constitutionally egregious as to test the courts’ commitment to the absolute supremacy of Parliament.” We’re still not sure whether we have or need a constitutional court.

The sovereignty of Parliament has also found itself being challenged by the government in a number of subtle but significant procedural ways, including the increasing use of statutory instruments (which are subject to less legislative scrutiny), funding cuts, forcing through complex legislation too quickly, a Bill threatening to reassert the primacy of the House of Commons and flooding of the (power-broker Lib Dem)Lords with new Conservative peers.

It is not just the government that is responsible for the current constitutional malaise; parliamentarians do not understand or respect the UK constitution and its relationship to sovereignty. This is demonstrated by the fact that the EU Referendum Bill was passed by 544 to 53 votes in the House of Commons with only the SNP opposing it. This looks like a big mistake in hindsight as the UK arguably only still exists as a result of piecemeal devolution agreements, and the failure of MPs to insert a devolution lock, acknowledging the differing but quasi-autonomous regions of Scotland, Northern Ireland, Gibraltar, and even, arguably, London, and preventing them from being out-voted by England and Wales, threatens the existence of the UK, the very thing Parliament should be protecting.

On Wednesday, constitutional lawyers raised £10,000 in less than 24 hours for a crowdfunded campaign to answer the question, what is the legal status of the outcome of the Referendum, as it was only advisory? In tackling this question, they are confronting something that should have been crystal clear in the EU Referendum Act 2015 and couched within a deep consideration of the impact of a Brexit vote on the UK constitutional order. The fact that it wasn’t will go down in history as reckless, foolish, shortsighted and potentially fatal. It will take political parties (while they decide on their leaderships) many months now to orientate themselves around this. We are in new unchartered politico-legal terrain.

Our complex, constitution has only been able to withstand partisan pragmatic politics dictating sovereign power arrangements for so long. There is no court mandated to protect the constitution and self-interested political groups have ravaged any sense of it being fairly linked to the sovereign will of the people. Will the new settlement allow the people to take back control?

Sashy Nathan is Director of Advocacy at 89up. He is a civil liberties lawyer with a background in defending activists and politically-sensitive criminal cases at Bindmans LLP.