Sovereign Power

As the referendum debate continues to meander on through fear and counter-fear, a new issue has been brought to the fore – the sovereignty of parliament. In part, this is due to a conflation of the sovereignty of Britain and the sovereignty of Parliament, which, while intertwined, are not the same, but it also derives from confusion over the relationship between parliament and the referendum. Thus, we find certain MPs talking about parliament (which has a majority of pro-EU MPs) rejecting the referendum result if it favours withdrawal from Europe, while there have also been accusations that ‘Brexiteers favour the sovereignty of Parliament unless they disagree with it.’

The first thing to clarify is that leaving the EU is about sovereignty for Britain. It isn’t about the way in which the country governs itself beyond it being governed from within Britain and neither by unelected bureaucrats in Brussels nor by a consensus of politicians from across Europe. In my opinion, Britain’s political system is in need of a major overhaul, but that is something that should be done by the British and not as part of Europe. Thus, there is no contradiction in backing withdrawal from Europe and insisting Parliament honour the result of the referendum if it is in favour of withdrawal.

But, more importantly, it is necessary to understand what we mean when we talk about the Sovereignty of Parliament, and how that relates to the referendum. Most importantly, we need to understand that the phrase is inaccurate, being a shorthand for each Parliament being sovereign (within British law) and Parliament being invested with the Sovereign’s power. The first of those is the concept that every Parliament is a separate entity that is not bound by the decisions of its predecessors. This means that, even if a law or treaty is written as being for all time and unchangeable, any future Parliament can cancel or change it. In terms of the EU, it means that any Parliament can end Britain’s ties to the EU whenever they wish (it also means that a future Parliament can choose to ignore the result of the referendum, whichever way it falls).

What is relevant is the second point, that Parliament is invested with the Sovereign’s power. Ultimately, authority in the UK devolves from the Sovereign (that is, the Queen) and no law is legal without her assent. Thus, although on a day-to-day basis, Parliament can be considered sovereign, it isn’t in the true sense of the word. Thus, it is possible that MPs could ignore the result of the referendum, but the Queen would likely dissolve Parliament and force a new election to forestall a crisis; it would even be possible for anti-EU MPs to meet and draft legislation to withdraw and ask the Queen to sign it into law if the referendum presented a significant Leave result.

But, the most important issue is could Parliament reject the outcome of a referendum? Yes, technically, it could. But, the idea, besides the potential for seeing Parliament dissolved or fracturing and the potential for a political or even violent backlash, is flawed on a couple of points. The first is that, although seldom used in Britain, ignoring the result would undermine their future use. At best, people wouldn’t vote in future; at worst, they would be ignored (why would the SNP campaign for another referendum on Scottish independence if they knew it wasn’t likely to be honoured? They’d just declare independence, regardless). The second is that, while MPs may not be officially bound by the result, they voted to hold the referendum. In doing so, they implicitly, if not explicitly, indicated that the results would be honoured. More realistically, they would have to call for Parliament to be dissolved so that, if re-elected, they could then vote to ignore the result (on the basis that the new Parliament wouldn’t be bound to follow the decision made by the previous one in holding the referendum).

There is, of course, one last point that is generally overlooked when it comes to talk of sovereignty. When it is stated that Parliament is sovereign (or, more accurately, is invested with the Sovereign’s power) that means there is no higher power above it. (This is why European laws have to be passed into British law by Parliament, as the European Parliament doesn’t, in theory, have the authority to override Parliament.) But, that doesn’t mean they aren’t beholden to a power below Parliament. While the authority of Parliament, in terms of passing legislation, is devolved from the Sovereign, the right of MPs to sit in Parliament is derived from the people. As a ‘representative democracy’, MPs are elected to ‘represent’ their constituents, meaning that they are supposed to apply their best judgement. In the normal course of things, while an individual MP might not have been elected by the majority of their constituents, they are considered to represent them all as they meet with them in their weekly surgeries and read their letters and emails, considering their views. Thus, even if an MP votes in a way that doesn’t seem to reflect the views of his constituents, and which perhaps doesn’t even match the manifesto promises he was elected on, it can be argued that he is only doing so after exercising his judgement after considering all the views of his constituents and all the evidence (although, in reality, he is probably just voting based on his own prejudices or his party’s whip’s demands).

But, that argument doesn’t hold together in the wake of a referendum. While it’s plausible that an MP is representing the majority of his constituents despite signs to the contrary when there’s no hard evidence otherwise, going against a clear referendum majority would show them to be going against their will. Also, there is a huge difference between ‘considering all opinions and evidence’ and then reaching a decision and asking the voters to decide, having been presented with (supposedly) all the evidence, and then ignoring it in favour of their own judgement.

Of course, with such a low opinion of MPs currently, it’s difficult to think they will behave honourably, but hopefully they will. But, if not, the referendum could just be the beginning of a major political crisis in the UK. How it might unfold is something we cannot be certain of as referenda are seldom held in the UK and, of those that have been, the results have either supported the government’s default opinion or been about relatively non-controversial issues. The outcome could be significant.

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