When David Davis, secretary of state for Brexit, responded to the High Court’s decision that only parliament has the authority to trigger article 50, he became unusually incoherent: “Parliament is sovereign,” he said, “has been sovereign, but of course the people are sovereign.”
The “sovereignty of parliament” is a unique feature of Britain’s once durable uncodified arrangements. From 1688, monarchical absolutism, aristocratic privilege and capitalist energy combined into a new form of rule: cabinet government accountable to a parliament of Commons and Lords under the crown.
It created an engine of global conquest with built-in checks that protected the kingdom from would-be dictators and, especially, democracy. It rested on domestic consent, and no effort or skill was spared to ensure this.
But consent was — and was seen as being — the opposite of allowing “government by the people”. This is why the outcome of the Brexit referendum is constitutional dynamite for Britain. The assumption was that it would confirm the status quo: that deference, self-interest and fear of the consequences would renew consent for the old regime with a remain vote.
Instead, consent was withdrawn. A new sovereign — “the people” — has now displaced the old. Unless minds change, the Commons and Lords — both with remain majorities — must vote to leave the EU.
By terminating the 1972 European Communities Act, “parliamentary sovereignty” will be restored only as a technicality: for in fact and in spirit the referendum drove a stake through its heart. The “will of the people” must now prevail. Those who resist are “enemies of the people”, as the Mail described the high court judges. This is the raw meat of dictatorship.
A new and democratic constitution is now essential, one that rests on popular sovereignty but protects the rights of all. To achieve it we have to reawaken England’s passionate constitutional culture that marked out the country from the time of the Levellers to the first world war.
Let’s start with first principles. A constitution sets out the rules for how a society’s rules are made or changed, and all constitutions do three things. First, they establish the authority that different centres of power have, how they relate to one another, and how these relations can be changed. This is where the famous separation of powers comes in — or, in the case of the UK, does not come in: between the executive (the government and civil service), the legislature (which makes laws but does not administer them) and the judiciary (which adjudicates what is lawful when this is disputed).
Second, all constitutions define the powers and rights of citizens, in our case, citizen-subjects. Do individuals have the right to vote, to assemble, to free speech, to property, to equal treatment; and how are these rights protected? Can the executive imprison us or invade our liberty through surveillance without due cause? If not, how must it establish such cause?
Third, all constitutions express the aspirations of the society. This might be to be non-racist (South Africa), or Islamic (Iran), or to be liberal and not fascist (Germany) or universal (France). Aspiration need not be part of the main constitutional document. Thus, “life, liberty and the pursuit of happiness” is the aspiration of the US constitution but appears in the Declaration of Independence.
‘No vulgar aspirations’
Historically, England-Britain, as the firstborn nation, felt it had no need of vulgar aspiration: after all, everyone else aspired to be like us. When David Cameron announced the referendum on 20 February, he said: “The choice goes to the heart of the kind of country we want to be ... You will decide.”
This compressed together all three aspects of our constitution: how power is exercised, the rights of citizens, and our aspiration as a country.
When Cameron did not get the answer he wanted, Britain was turned upside down. For the Mail is right in this respect, if no other: the people have the prerogative now. Whatever the supreme court decides, “the will of the people” trumps an uncodified constitution. It was once the plaything of a privileged elite.
When he was head of the civil service and secretary to the cabinet, Robin Butler was asked by a student what the constitution was. He replied: “It is something we make up as we go along. “ His “we” was not the “we” of “we, the people”. He meant those like him. Today, Butler’s establishment has been driven from power by an even narrower, political-media caste.
Our constitution has become something Rupert Murdoch and Paul Dacre make up as they go along. They took advantage of the deceitful way Butler’s predecessors had taken the UK into the EU, pretending this did not undermine the sovereignty of parliament and that our continental partners’ far-reaching political-cultural project was for us only a matter of economic and instrumental advantage.
Yet, as an uncodified multinational entity inside a larger multinational one actively codifying its reach, the nature of British rule could not but be threatened. To share sovereignty with Europe, Britain needed its own democratic constitution. The argument influenced New Labour. We got our Human Rights Act, a Scottish parliament, a London mayor, and a Freedom of Information Act; and we rid the Lords of most hereditary legislators. Together the reforms broke the informal checks and balances of the old regime while unleashing the national question. But Blair opted to preserve executive power rather than be checked by a new settlement.
Today the embrace of executive dictatorship by the Tory government and the nativist right is even more extreme than Blair’s. In the name of “the people” they seek to break any resistance to Brexit. In so doing they have opened the final battle over the old order. It may take a 20-year confrontation, but the framework of 1688 cannot determine the revolution unleashed by Brexit, not least because Northern Ireland and Scotland have already undergone a form of constitutional normalisation, which is why they felt safe enough to vote to stay in the EU.
The irony is that by leaving the EU, we English now find ourselves in even more need of grown-up, European-style arrangements. The outcome could be a federal UK, if Scotland agrees. That is for the future. What is clear now is that England must bury its arbitrary, hyper-centralised empire-state. For even a newfangled supreme court cannot preserve the unwritten constitution that is being shredded by Brexit.
— Guardian News & Media Ltd
Anthony Barnett was the first director of Charter 88 and is the founder of openDemocracy.net