UK Constitutional Law Association

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Jean Leclair: Brexit and the Unwritten Constitutional Principle of Democracy: A Canadian Perspective

jean-leclairMuch has been written on whether a prior approval by the UK Parliament is required to trigger the withdrawal process from the European Union under Article 50 of the Treaty on European Union. I will not presume to comment on the technical legal issues raised by this debate. Instead, I wish to highlight how the irreconcilable monistic understandings of sovereignty held by Brexiteers and Remainers –understandings that go to the very core of the UK’s basic constitutional structure– explain the present disagreement over Article 50’s implementation. I will then conclude by examining how in the 1998 Quebec Secession Reference the Supreme Court of Canada’s reasoning made political compromises possible by avoiding solutions formulated in absolutist terms, and how a similar approach could provide Brexiteers and Remainers alike with an interesting route.

For Brexiteers, sovereignty of the people is the cornerstone, the ultimate rule of recognition, the Grundnorm –call it what you want– of the UK’s constitutional order, whereas for Remainers, sovereignty lies with Parliament. For the former, this entails an obligation on the part of the executive to trigger immediately the withdrawal process, whereas for the latter, such a decision must involve Parliament. This opposition goes beyond the classic Diceyan distinction between Parliament’s “legal” sovereignty and that of the electoral body, which is “political” sovereignty. Remainers, if one reads their arguments closely, are not simply claiming that Parliament’s sovereignty refers to a law-making power unrestricted by any legal limit. What they are saying is that Parliament’s sovereignty has a definite political dimension, since Parliament’s role is to furnish a forum where complex issues of public governance management may be deliberated in an ordered and rational manner.

The debate opposes, as in a zero-sum game, these two irreconcilable monistic understandings of political sovereignty. One or the other, it is implied, must triumph. On the one hand, ascribing to Parliament a right to have a say on the issue of withdrawal would fly in the face of the people’s will. This is because of the fact that, as Attorney-General Jeremy Wright QC phrases it in the Miller and Dos Santos case (17 October 2016), “Parliament [w]ould now be asked to answer the same question as put to the people in the referendum.” On the other hand, denying Parliament any role and allowing Prime Minister May to unilaterally trigger the withdrawal process would amount to letting the royal prerogative prevail over the will of Parliament. Parliament, of course, is the UK constitutional system’s fundamental institution. Its authority largely stems from the fact that it is the privileged locus of political deliberation.

All parties to the debate brandish, as one would a flag, the concept of sovereignty, whether in its popular or parliamentary guise. Sovereignty, in this perspective, takes on the appearance of an empirical fact, of an entity endowed with some form of plasticity akin, for example, to capital that can be owned, accumulated and spent.

However, such a perspective overlooks the fact that sovereignty refers to a relation rather than to a well-delimited, abstract juridical entity. More specifically, sovereignty is the fruit of a complex political relationship between the rulers and the ruled, a relationship that intermingles elements of legality and legitimacy. Insofar as one recognizes sovereignty as the product of a relationship involving many political actors (PM/cabinet, parliamentarians and the electorate) with equally legitimate points of view, it becomes possible to admit that all of these actors share, in equal parts, in the sovereignty of the state (as distinct from the sovereignty of Parliament), neither of them being its exclusive titleholder.

In a liberal democracy, politics play out, not on a field of power, but on one of powers. Consequently, all legitimate political actors have an equally important role to play. However, Parliament and the electorate do not have identical roles.

Nowadays, parliamentary sovereignty and popular sovereignty both have the democratic principle as normative foundation. However, maintaining that the former must give way to the latter ignores the fact that, while democracy understood as majority rule is a decisional mechanism –i.e. an instrument capable of translating collective choices into reality, even in the face of ongoing disagreements– it also is (in a liberal democracy, mind you) a justificatory principle. In fact, democracy can be illiberal if it is not concerned with the protection of certain values held to be fundamental.

This justificatory dimension is all the more important when one considers that in its decisional guise democracy has a tendency to conflate majority and unanimity. For some, 50% plus one of the votes soon morph into the will of all. To claim that one must submit to such a narrow majority is one thing, but asserting that the latter expresses the will of all undeniably amounts to breathing life into a fiction. The majority principle may overshadow dissent, but it never makes it disappear. In the end, the quality of a democratic decision will depend on its justification, and, ultimately, on the quality of the deliberation that led to its formulation.

Democracy understood as a principle of justification is also based on the idea that a democratic regime cannot survive in the absence of a shared conviction that certain principles or conclusions are better than others, that rational cognitive processes allow us to identify those principles or conclusions, and that deliberation remains the most effective way to distinguish the desirable from the undesirable. In sum, no democracy is possible without the conviction that truth is more important than lies.

What lessons can we draw from the foregoing regarding the respective authorities of Cabinet and Parliament in the implementation of article 50? A few comments about the decision made by the British population on the occasion of last June’s referendum are required to answer this question appropriately.

First, although the decision to withdraw the UK from the EU was indeed taken, it must be admitted that the referendum question’s binary nature has left open a dizzying number of complex issues. In addition, assuming that the people did make the choice to withdraw, must it be inferred that by doing so they assigned to the executive government the freedom to trigger Article 50 whenever it chooses, even if withdrawal at the time of its choosing could place the UK in an extremely unfavourable negotiating position? If the referendum has made withdrawal all but inevitable due to the decision taken by the people, one must admit that the concrete steps needed for implementation of that decision (apart from the Article 50 notification process) never seem to have been clearly explained to the electors.

Second, it must also be acknowledged, as the House of Commons Treasury Select Committee did in May 2016, that “[t]he Public Debate [has been] poorly served by inconsistent, unqualified and, in some cases, misleading claims and counter-claims”, and that, “[m]embers of both the ‘leave’ and ‘remain’ camps [have been] making such claims.” While there may be very good reasons to leave or to remain in the European Union, still, as a large number of media specialists have observed, the referendum campaign was dominated by what Jonathan Freedland of The Guardian has dubbed “post-truth politicians”, and most agree that the overall “quality” of the public deliberation was at best mediocre.

Two conclusions follow from the preceding: 1) on the occasion of the referendum, the legitimate expression of the population’s will was indeed made known and the decision to leave was taken; 2) notwithstanding, the debate over the benefits and advantages of EU membership has been almost entirely evaded.

This context, I argue, allows for the legitimate intervention of Parliament in the triggering process. Historically, authors such as Blackstone and de Lolme have seen in Parliament the incarnation of what Paul Craig called a “balanced constitutionalism”. From this point of view, the Monarch, the House of Lords and the House of Commons represented different legitimate interests within society, and the division of power between them was perceived as a shield against tyranny. This “balanced constitutionalism” remains a central feature of the UK’s constitutional order.

Indeed, in addition to its roles as legislator and supporter of the Government of the day (the latter’s power being dependant on its being able to maintain the confidence of the House), Parliament must monitor the actions of the Government in order to ensure their conformity with the rules and principles that the state’s legal and constitutional order dictates. In the fulfilment of this task Parliament constitutes a privileged forum where –despite partisanship and party discipline– a rational deliberative process respectful of the intelligence of all stands the greatest chance of taking place. I have in mind here the Commons European Scrutiny Committee and, especially, the various non-partisan committees making up the European Union Committee of the House of Lords. These committees are apparently doing a remarkable job of review and analysis designed to ensure that EU-related government policies are as well-informed as possible.

In other words, affording a role to Parliament in the triggering of Article 50 does not mean trumping the will of the people. Rather it amounts to complementing their will with a type of public deliberation for which the referendum campaign did not allow. In a nutshell, there is no clash between two colliding sovereignties if one accepts that equally legitimate political actors all participate in the constitution of the UK’s sovereignty, and that they do so in expressing their points of view within distinct forums (parliament and referendum) which, combined, reconcile the democratic principle’s decision-making and justificatory dimensions. An intervention by Parliament could guarantee that the withdrawal process takes place in conditions that would ensure the best interests of all.

Could the preceding normative thesis be translated into binding constitutional concepts? I believe it could, if the Supreme Court of Canada’s reasoning in the 1998 Quebec Secession Reference were to be followed. Borrowing from the Court’s reasons for decision, one could argue that there exists a number of “foundational constitutional principles” (para. 49) that constitute the “lifeblood” of the UK’s constitutional structure (para. 51), and that although they “are not explicitly made part of the Constitution … it would be impossible to conceive of [the UK’s] constitutional structure without them” (para. 51). One could then assert that democracy and the rule of law must be counted among these principles and that these foundational principles function “in symbiosis”, with no “one principle [being able to] trump or exclude the operation of any other” (para. 49). It could then be argued that these principles “are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments’” (para. 54). This, however, does not mean that the Courts have to play a “supervising role” (para. 101). In truth, they should not, since they “would not have access to all of the information available to the political actors” (para. 101). Be that as it may, as the Supreme Court underlined, in spite of the fact that these principles are held to be non-justiciable, this does not mean “that constitutional obligations could be breached without incurring serious legal repercussions. Where there are legal rights there are remedies, but […] the appropriate recourse in some circumstances lies through the workings of the political process rather than the courts” (102).

In other words, it would be possible for a UK Court to assert that the democratic principle and the rule of law impose a binding legal obligation to consult Parliament on the executive power even though such an obligation could not be judicially sanctioned. It would be for the political authorities to determine the ins and outs of such a collaboration. Any refusal to collaborate in good faith would receive its ultimate sanction at the ballot box.

A UK judge embracing a similar reasoning could demonstrate that, in times of crisis, a non-elected state actor can contribute to the enrichment of a state’s democratic culture.

Jean Leclair, Professor, Université de Montréal

(Suggested citation: J. Leclair, ‘Brexit and the Unwritten Constitutional Principle of Democracy: A Canadian Perspective’, U.K. Const. L. Blog (3rd Nov 2016) (available at https://ukconstitutionallaw.org/))

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