The Brexit debate is not about parliamentary sovereignty, but the people’s sovereignty

Westminster, October 2008 by Herry Lawford

For the seasoned constitutional observer the chief complaint about Britain is that it lacks a single document with all the important rules written down.

This, in essence, is the problem of the “uncodified” constitution. Whilst many complain of Britain’s “unwritten” constitution, defenders will insist it has been written, but is just scattered around the depths of the Hansard archives.

But even this is misleading. Because the truth is that Britain may be the only country in the world where the constitution can fit into much less than a single tweet.

Parliament is sovereign.

Most legal commentators understand this. And it’s this understanding that has led to so many mocking David Cameron’s reassertion of parliamentary sovereignty against the backdrop of the EU referendum.

In the round the absurdity is thus: If parliament is sovereign it has no need to to assert it; If it is not sovereign then it cannot assert it. Therefore any parliamentary act that did so would by definition be pointless.

The legal argument over whether EU law trumps British law is somewhat tortured, as Mark Elliott, professor of public law at the University of Cambridge, has explained at length.

But while the above may be interesting to lawyers, it does not answer the problem of democratic deficit that has handicapped the EU for so long and is the true essence of the sovereignty debate.

In theory the EU is under the control of the 28 member states that it is comprised of.

Decisions are made by the European Council, which includes various presidents and prime ministers; the European Commission, made up of appointed wonks from various member states; and the European Parliament, which has little influence but is at least directly voted for.

Defenders of the EU will point out that the Commission, where power lies, is made up of appointees from all of the states, which means in effect there is a line of democratic legitimacy.

But being under the control of politicians and being under control of the citizenry are two different things.

By way of example, the governor of the Bank of England is appointed by the chancellor, currently George Osborne. Gideon gets his legitimacy because the Tories control the Commons, and governor Mark Carney relies on that legitimacy.

There is some controversy as to exactly how independent the Bank of England really is from the government, but since Carney’s main activities concern fiddling with monetary policy the public does not much care who he or what he is doing until the economy goes tits up.

While the heads of the 28 EU member states do appoint the European commissioners – via a convoluted process even I find too boring to understand – they are perceived as too detached from the elected governments to borrow their legitimacy.

What is more, their powers are greater than those held by the central bankers, stretching into most policy areas that governments legislate in.

The net result is that the EU’s chief lawmakers are not accountable to the citizens they serve.

No act of parliament, be it in Westminster or elsewhere, is likely to change that, but an exit from the EU would return all lawmaking functions back to Britain, and the sovereignty back to her citizens.

Since parliament is sovereign, and has the power to cut the treaties that bind us into the EU, it is unsurprising that politicians feel they have some control over what the EU does. The EU is at least somewhat accountable to Westminster.

But for the common citizen this accountability is not felt, because for them it does not exist.

As the late Labour grandee Tony Benn once put it in a speech criticising the EU: “I still believe, that when people vote in an election they must be entitled to know that the party for which they vote, if it has a majority, will be able to enact laws under which they will be governed.

“That is no longer true.”

Image Credit – Westminster, October 2008 by Herry Lawford

Jimmy Nicholls
Writes somewhat about British politics and associated matters. Contact

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