Parliament taking over policy is not the answer
What an irony! Gina Miller saves Brexit – at least for now. When the doughty Remain campaigner persuaded the Supreme Court that parliament should have a significant vote on the Brexit deal, many lawyers thought this decision was wrong in law. But without it, the Prime Minister would have been able to push through her Withdrawal Agreement: Brexit In Name Only.
This was a significant change in constitutional practice. Making and ending treaties was traditionally a matter for the Crown – the executive. In the 18th century, Montesquieu, the French philosopher made British practice into a theory – the “separation of powers”, which he considered necessary for liberty. The American rebels enshrined it as a principle of their constitution, and have been followed, at least in theory, by most states with written constitutions. Britain, of course, does not theorise.
As Disraeli put it, we are not governed by principles, but by parliament.
The Victorian constitutional lawyer Dicey said that parliament could “make or unmake any law whatever”. Hence, “parliamentary sovereignty”.
But, as Dicey also said, that sovereignty is circumscribed: parliament makes laws, “neither more nor less”. It does not govern. It cannot give orders to the Army, police or civil service. It cannot dictate policy, other than by the making of laws. It can overthrow governments in whom it has no confidence. But it is governments – ministers of the crown – who actually govern, and take responsibility for their policies before parliament and before the electorate. Or did.
We now have the topsy-turvy prospect of a parliament simultaneously gearing itself up to dictate policy to a government, and yet also to vote on its confidence in a government in which it manifestly has none. This is clearly an infringement by the House of Commons on the proper domain of the executive, and it turns our constitutional practice on its head.
What has given parliament the opportunity to encroach on executive authority is clear, and it is hard to blame MPS. Mistrust of the executive has grown because recent prime ministers – namely Tony Blair and Theresa May – have pushed their own individual authority beyond traditional bounds of cabinet government and collective responsibility.
Blair took us to war in Iraq and kept the Cabinet in the dark (he said later that he assumed they had learnt what was going on by reading newspapers).
May has led us into a legal and political cul-de-sac again by keeping her Cabinet out of Brexit policy, to the extent, which until now would have seemed incredible, of running her own policy in rivalry with the Department for Exiting the European Union, which had constitutional responsibility.
I’m not sure that it is any consolation to say that there is even a worse precedent for a PM going off the rails: the Suez Crisis of 1956, when Sir Anthony Eden plotted in secret to launch an illegal invasion of Egypt.
For parliament to try to take over policy is understandable, but not the answer. Government by assembly has many discouraging precedents. In our own history, it happened after the Civil War, when parliament claimed sole sovereignty, with the speaker as head of state. Cromwell put an end to that. The French tried it too, during the first
revolution, when policy was dictated by those who could shout the loudest. Napoleon put an end to that. During the later and more decorous French Third Republic (1870-1940), the dominance of parliament meant a change of government every few months. Defeat by Germany put an end to that.
There is no mystery why rule by parliament does not work. In such a system, policy is dictated by people who are not responsible for carrying it out, and who in most cases do not have full information or understanding of the technicalities, whether economic, strategic, or legal.
In at least one area, we have already come close to this because of Blair’s adventures: in the convention, accepted under David Cameron, that parliament should debate and vote before a military intervention – time for a potential enemy to prepare, knowing what is planned, where and how. Brexit is fortunately not a matter of life and death. But the disadvantages of 650 MPS trying to dictate policy is the same: power without responsibility, and giving advantages to the other side.
It is admitted – or even said with pride – that most MPS voted Remain, thus showing how unrepresentative the political class is. Since the referendum, and the general election, government has been hamstrung by MPS who openly refuse to accept the validity of the 2016 referendum. This has made serious negotiation with Brussels very difficult. The EU negotiators knew all along they had friends in Britain.
Now, given the debacle of Mrs May’s policy, the Commons has seized their chance. The Grieve amendment passed last week gave MPS the power to alter any motion proposed by the Government to enact the Brexit process
‘The House of Commons seems to be trying to turn itself into another House of Lords’
– in short, to try to instruct the Government on how to govern.
Although legally this can be dismissed as non-binding, many are claiming that the Government would have to take notice, and that in any case the Commons would not permit a “no-deal” Brexit. Needless to say, this gives a further advantage to the EU’S negotiators, who are effectively given a veto over our national policy.
What does it mean to say that the Commons “would not permit” a no-deal Brexit, or that “there is no majority for it”? That they would be claiming to possess sovereign power, for example, to pass an Act withdrawing the executive’s notification to leave the EU under the famous Article 50. This would be to override a national referendum, confirmed by a general election. Their claim to parliamentary sovereignty would ultimately be used against their own electorate.
On what grounds could they claim to possess such a power? Parliament’s sovereignty consists in its power to put the will of the people into law.
The Commons’ legitimacy comes solely from election: this has been the essence of its history since the 13th century. Popular consent to government has been the foundation of our whole democracy, and it goes back well before even Magna Carta. To argue that the people didn’t understand what they were voting for, or that their opinions (under a barrage of one-sided and misleading propaganda) might have changed (for which there is no good evidence), is to undermine the whole legal and moral foundation of democratic government. Any election result could be contested on the same basis. To break clear manifesto promises undermines a central pillar of parliamentary government. The House of Commons seems to be trying to turn itself into another House of Lords.
The Upper House’s legitimacy is (or was) based on the superior status of its members, supposed to represent tradition, wisdom, wealth and power. The Lords claimed the right to veto the will of the plebs because the elite knew better. This came to an end in 1911, after a bitter conflict between “the Peers and the People”. Does the Commons now claim that sovereignty belongs to MPS because they too are members of an elite with superior wisdom? The “sovereignty of parliament” is not an absolute or unlimited sovereignty: it is one element, the power to make laws.
Moreover, that element of sovereignty is only lent to it temporarily – by popular election.
Where does sovereignty ultimately lie? That is a question better not tested, because it asks “who would people in the last analysis obey?” We would only know that if the whole system broke down. But in some imaginary crisis scenario, I doubt very much that the ultimate focus of people’s loyalty is the membership of the House of Commons.
Robert P Tombs is a British historian of France, and professor of French history at St John’s College, Cambridge