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In the aftermath of the EU Referendum many hoped that Parliament will, in its wisdom, block what the people decided to do in the heat of the moment: to leave the EU in a single ‘in-out’ referendum, with a simple majority, in a campaign full of deliberate lies and misinformation. That hope remained alive when the government’s attempt to bypass Parliament, through the use of the Royal Prerogative, was challenged in court as unconstitutional. The government has now lost the constitutional argument but it was clear, long before the Supreme Court’s decision, that Brexit is the only political game in town.
Last week, MPs voted in favour of the Brexit Bill by 494 to 122 (a majority of 372), even though most of them had supported Remain. Several MPs, struggling to reconcile their vote with their belief that Brexit is politically disastrous, invoked the will of the people. Diane Abbott MP stated that “to say that because the vote went the wrong way we are going to ignore the votes of millions of people up and down the country would be a blow to democracy”. Her remark reflects the general sentiment of the country. In the eyes of public opinion, anyone who attempts to block Brexit – litigants, courts, MPs – betrays the value of democracy. They are, in the despicable headline of the tabloid press, ‘enemies of the people’.
It is all too easy to explain the vote in the House of Commons as self-interested political calculation. MPs, who seek re-election, are no doubt unlikely to go against the majority will of their constituents. But why would their constituents, including many who voted Remain, interpret a parliamentary vote against Brexit as undemocratic?
It was quickly pointed out that in constitutional terms MPs are representatives, not delegates of the people. They have a duty to form an independent judgment about what is in the best interests of the country as a whole. The electorate is of course well-aware of this constitutional principle of representative democracy; they do not normally shun as ‘enemies of the people’ the opposition MPs who vote against the policies of the party that won the general elections, as Kenneth Clarke aptly remarked in his speech in Parliament. But in the eyes of the public, the June referendum – which everyone agrees is not legally binding – is treated as an exception to the well-established principle of representative democracy. With the exception of Liberal Democrats, the prevailing view, left, right and centre of the political spectrum, is that the decision to leave the EU was for the people to make, and it is not up to Parliament to re-open it; nor may Parliament impose any limits or qualifications to a decision that purports to have a major constitutional impact: MPs even voted against an amendment to guarantee the rights of EU citizens living in the UK, post-Brexit.
This is an astonishing constitutional development since it sets severe limits to Parliament’s authority in the name of the rather nebulous concept of what ‘the people voted for’ in a simple yes/no referendum. No referendum of this kind can of course decide the myriad interconnected issues of law and policy that are affected by the country’s membership of the EU. Yet the attribution to the outcome of the June referendum of any specific content about what Brexit means (‘hard’ Brexit for example), and the subsequent fettering of Parliament’s legislative authority, means that it is the value of representative democracy that has suffered the real blow.
The June referendum risks having another, less obvious, impact on our constitutional landscape. For over 40 years, membership of European organisations radically changed the UK constitution. Domestic courts have been interpreting Acts of Parliament subject to EU legislation giving precedence to the latter in case of conflict, while under s. 3 of the Human Rights Act 1998, they have been interpreting Acts of Parliament in a dynamic way, so as to make them compatible with human rights. These changes shook the foundations of the positivistic doctrine of parliamentary sovereignty. This constitutional doctrine holds that Parliament can make or unmake any law and the role of courts is to give effect to its will unconditionally. Real constitutional progress was made, revealing the inadequacies of this archaic doctrine. Courts immersed themselves in the task of protecting individuals against well-known vices of any representative democracy, not least of all the Westminster Parliament: bias towards unpopular minorities, neglect of vulnerable people, xenophobia, political opportunism, vested interests, abuse of power by powerful private actors and many others. They also embarked on a process of institutional dialogue and co-operation with European supranational institutions, thus being able to tackle collective problems (such as climate change, consumer protection or workers’ rights) which no country can solve by itself.
Intellectually however the UK, the birthplace of legal positivism, was slow to absorb these constitutional changes. They were typically conceptualised as compatible with, and grounded upon, the doctrine of parliamentary sovereignty. Courts were depicted as applying someone else’s decisions (the EU’s or Strasbourg’s) only because Parliament directed them to do so: when disapplying Acts of the UK Parliament courts were simply obeying Parliament. This sophomoric depiction salvages the doctrine of parliamentary sovereignty but is jurisprudentially vacuous.
The reality is much different. In engaging with European legislation and case-law, domestic courts were not obeying anyone; they were constructing their own view of how all these diverse legal materials (domestic and supranational) can be interpreted in a coherent and principled manner and be applied in a way that treats like cases alike. In so doing, courts set off on the path of modern constitutionalism: this is the idea that there are certain fundamental legal principles, accepted and recognised in all mature democracies, which limit and control the effect of any decision made by the political branch of government, however representative of the people it might be. Central to modern constitutionalism is the political value of the Rule of Law: it requires courts to uphold such principles, and the individual rights that they ground, placing law above politics. In a constitutional democracy no one is sovereign and no majoritarian decision, be it by the people or by Parliament, is above the Rule of Law.
It is disappointing that the UK Supreme Court reverted to the archaic notion of parliamentary sovereignty in the Miller judgment. Eager to justify why the executive lacks the constitutional power to affect individual rights grounded in EU law, the majority in Miller subsumed the relevance and weight of such rights under the doctrine of parliamentary sovereignty. It said [at para. 60]:
[c]onsistently with the principle of Parliamentary sovereignty, this unprecedented state of affairs will only last so long as Parliament wishes: the 1972 Act can be repealed like any other statute. For that reason, we would not accept that the so- called fundamental rule of recognition (ie the fundamental rule by reference to which all other rules are validated) underlying UK laws has been varied by the 1972 Act or would be varied by its repeal.
But the real constitutional issue is not who gets to upset individual rights flowing from EU membership (Parliament or the executive), but whether these rights can be taken away altogether. The passage just quoted – invoking H.L.A. Hart’s famous claim that legal systems have a Rule of Recognition – assumes that Parliament can do away with all such rights, make or unmake any law with respect to the EU. But that is clearly a mistake. Brexit is not a constitution-free zone. Take the example of the rights of EU citizens who have made their life in the UK and of Britons who have made their life in the rest of the EU. Deporting people based on their nationality, whilst they have lawfully made their life in a country, on the explicit understanding that they are entitled to permanent residence, would strike at the heart of the value of the Rule of Law. Taking such rights away, in the name of a plebiscite, may have a place in fascist and authoritarian regimes, but not in a constitutional democracy. Nobody may lawfully expel citizens from other EU countries who have made their life in Britain, not even Parliament. Nor is there any such thing as a Rule of Recognition in the UK, i.e. a social norm practiced amongst legal officials whereby they converge in the application of the law. If there were such a norm, then judges of the Supreme Court would not be in disagreement on such a fundamental constitutional question as who gets to take the country out of the EU.
We should like to hope, too optimistically perhaps, that the reasoning of the Supreme Court in Miller will not get in the way of upholding fundamental individual rights, thus undoing decades of constitutional progress. Under the folly of majoritarianism that has befallen our institutions and our public culture, neither the Prime Minister, nor the House of Commons are willing to guarantee the legal rights of EU citizens who live in the UK. It is the duty of courts not to fall under this spell in the name of the misconceived doctrine of parliamentary sovereignty, and to uphold the Rule of Law.
Why has the country succumbed to the folly of majoritarianism, distorting its constitutional integrity at so many levels? I believe there is a common explanation to how all three branches of government reacted to the EU referendum. At the heart of all this folly lies a misunderstanding about the nature of democracy. It is the assumption that there is such a thing as what ‘the people want’, which can be expressed in a majoritarian decision-making process and become the source of democratic legitimacy for specific laws. Yet this majoritarian conception of democracy is deeply mistaken: voting – in both general elections and referendums – is not a process aimed at revealing the desires and preferences of the people so that they can be satisfied through legislation. If that were the case, then there would be no need for reason-based deliberation and exchange of argumentation, which are central to any democratic process. In a democracy, properly understood, we deliberate and vote about what will make our country more just or fair; justice (social, distributive, institutional and so on) is the subject-matter and the aim of our politics. Citizens are participants, together with the three branches of government, in a complex institutional process aimed at identifying, selecting and implementing particular conceptions of justice. That is why in a democracy, arguments based on ‘what the people want’ are not only irrelevant, but also ontologically spurious. Nothing can be revealed about what the people want from a process that serves a totally different function altogether, namely that of co-authoring the vision of justice that should govern our polity. Arguments about what ‘the people want’ are also politically suspect, because they bypass the need to provide reason-based arguments of justice, as if the win of the majority who voted makes that need obsolete.
It has to be stressed then that no specific political action (‘hard’ Brexit or what have you) can be legitimised as an inference from the fact that the British people ‘wanted Brexit’: no such thing was revealed, or could have been revealed, in the June referendum and no inferences can be drawn from its outcome. All that the referendum legitimised is the government’s mandate to seek a fair and just way of disentangling the country from decades of European integration and rights-based constitutionalism. Perhaps there is no such way – in which case there should be no Brexit; or perhaps, most likely, finding such a way requires securing a large number of individual rights flowing from EU membership, including the single market. In either case, no betrayal of democracy will have taken place. On the contrary, it would be democracy at its best.
So perhaps the Prime Minister was right after all: Brexit does mean Brexit, which is another way of saying that – constitutionally speaking – it means nothing at all. Just like with ordinary politics, the meaning of Brexit should be defined gradually through a long institutional process in which the three branches of government perform their constitutional roles, checking one another. What is important to realise however is that what is at stake now is something far more precious than our relationship with Europe: it is the very democratic nature of our politics. It is everyone’s constitutional duty, as citizens of a democratic state, to resist the folly of majoritarianism that is spreading fast on both sides of the Atlantic.
George Letsas is the Co-Director of the UCL Institute for Human Rights and Professor of the Philosophy of Law at University College London.
(Suggested citation: G. Letsas, ‘The Constitution and the Folly of Majoritarianism’, U.K. Const. L. Blog (20th Feb 2017) (available at https://ukconstitutionallaw.org/))