Britain’s raging argument about Brexit is increasingly morphing into a contest about more issues than just this country’s relationship with the European Union. It is also turning into a contest about the relationship between two sources of democratic power – referendums and parliament. Referendums claim to elevate the people’s will over parliament, which is expected to defer indefinitely and in detail. Yet Britain’s historic constitutional doctrine, still bred in the bone of most MPs, has traditionally been that parliament is sovereign.
The Victorian jurist AV Dicey argued long ago that parliament “has the right to make or unmake any law whatever” and that “no person or body is recognised by the law … as having the right to override or set aside the legislation of parliament”. Much has changed in the laws of Britain since Dicey, including human rights legislation, devolution and Britain’s 45-year membership of what is now the EU. Nevertheless the doctrine of parliamentary sovereignty that he set out remains a guiding and established principle for the courts and for all parties and MPs, whether they are remainers or leavers.
However, parliament’s rights are being relentlessly stress-tested by the Brexit crisis. Several times since the 2016 referendum, parliament has asserted its sovereign right to make the final decisions on Brexit, often in the face of government opposition. Examples include the original article 50 withdrawal decision itself, the call for a meaningful vote on the Brexit deal and, only last week, the instruction to publish the attorney general’s legal advice to ministers on the withdrawal agreement. If, in the coming weeks, there is a successful attempt to pause the article 50 process, as Sir John Major advocated on Tuesday, or a vote for a second referendum, then this process will have reached an even greater climax.
There was another interim clash in this process on Monday when Theresa May decided unilaterally to suspend the debate on her Brexit deal, which had been due to come to the vote on Tuesday evening. That decision was an insult to MPs, especially the 164 who had already spoken in the debate. It made a mockery of the belief that parliament, rather than government, is in charge of its own processes.
When a government has a clear majority, this issue is blurred. Yet in a hung parliament, with no overall majority and both major parties split over Brexit, it is painfully obvious that MPs’ claim to control their own house is in fact still dependent on ministers for much of the time. The Speaker, John Bercow, rightly denounced Mrs May’s decision to pull the vote on Monday. He is clearly up for a long fight to defend the Commons against ministerial attempts to railroad MPs. A Labour backbencher grabbed the Commons mace in protest. On Tuesday, rather than debating the Brexit deal, MPs instead found themselves toothlessly debating why they were not debating it.
This is a crucial battle, whose importance goes beyond remain versus leave. Mrs May’s decision to stop the debate must not mean that the procedural concessions that MPs have won are simply wiped from the record when – or if – Mrs May comes back from her travels with a revised version of the withdrawal deal or a new addendum to it. In the Commons on Tuesday the cabinet office minister David Lidington appeared to accept that five days of withdrawal agreement debate are paused, not aborted. It is essential that this should be so.
This country needs to have the vote on the Brexit deal; but it also needs a Commons that is empowered to make its own decision in time to prevent a no-deal alternative. The vote should therefore happen as soon as possible, not at the last minute. The ensuing process should be facilitated and not blocked by the party whips. Many MPs on all sides grasp this. It is vital that they, and Mr Bercow, stand firm and ensure that the Commons takes charge. Brexiters in the government and on the backbenches always claim to regard a sovereign House of Commons as a fundamental pillar of leaving the EU. They have no right to complain when MPs insist on exercising that sovereignty, or when they do so in new ways – perhaps even through a free unwhipped vote – that challenge the excessive power of ministers.
