One of the key messages that the Leave campaign pushed during the referendum campaign was the British parliament was ‘taking back control’.
This was always a misrepresentation of the nature of British parliamentary sovereignty.
Parliament – which constitutionally is composed of the House of Lords, the House of Commons and the Monarch-in-Parliament – is the all-powerful, political body in this country. It has the power to set all laws, and parliament recognises no higher authority than itself. All British political power resides in the Westminster parliament.
The argument that the EU had power over Britain had some merit, if you ignored the fact that the parliament had willingly given up power to the EU. This is the well-known and long-established doctrine of ‘pooled sovereignty’. Each of the member states agreed to recognise the legal authority of law made by the EU (including their own input as members) because it was felt that being in the EU conferred greater benefits to each member state than just being a sovereign nation on one’s own. Like not descending into bloody Europe-wide civil war once every generation.
Britain’s parliament – and so the country – recognised the power of European law willingly, by passing the 1972 European Communities Act. A referendum in 1975 put the question directly to the country, and was approved by a large majority. It was always within the power of the British parliament to repeal the Act, and so leave the EU (or what was the EEC, then the EC). The law passed in 1972 is one of those that Theresa May’s government will have to repeal as part of the so-called ‘Great Repeal Bill’.
It is not unreasonable to argue that giving away a fairly sizeable amount of power is something that is worth re-endorsing once in a while. What is the good of a theoretical power to leave the EU, if that threat never looks like becoming a reality? Or, put another way, anyone under the age of 59 in 2016 hasn’t had the chance to rubber-stamp that decision for themselves.
On that logic a fresh periodic referenda, to discuss the merits of continued membership seems like a good idea. It would be a chance to re-invigorate a mandate to remain in the EU and settle the question. Putting the issue to bed was one of David Cameron’s motivations for calling the referendum, though more from a party-political than national-interest point of view.
While that might have been a good idea – and it’s far too late now – the conversation was not about that. Not at all.
Taking back control or pulling the wool?
Instead the Leave campaign group adopted a tactic of stoking fear in order to distract from the way it was deliberately misleading people. The issue of sovereignty was and is a legitimate political concern. The Leave campaign wasn’t interested in bringing power down to a more local level – to the ‘little man of Farage’s imagination – but in taking it away from the EU and keeping it for themselves. In some cases the aim was simply to take a position in order to further their own political careers. I’m looking at you Boris and Michael.
We can really tell the intentions of the Brexiteers from their actions post-referendum. The £350m to the NHS claim was notoriously jettisoned the very morning after. Some months later the issue of parliamentary sovereignty is getting the same treatment. It would seem entirely reasonable, given the earlier rhetoric, that parliament would have some serious and substantial involvement in the process of leaving the EU. Yet it seems that won’t be the case. Firstly the government said it wouldn’t be “giving a running commentary” and this Monday David Davis – Minister for Not Telling You Anything – said the Commons would not get to debate or vote on Brexit.
This won’t do. Parliament is an imperfect institution and only imperfectly reflects the will of the people It should never be allowed to overturn a clear democratic mandate, in this case to exit the EU. However the manner in which that process takes place is well within its scope. There is a strong argument that Brexit negotiation fall within the Costitutional Reform and Governance Act (2010). That requires that treaties are at least ratified by the Commons.
Not giving the mother of parliaments a say on the most important political decision of a generation would be the mother of all mistakes.