Update: This article has been re-published in Country Squire Magazine under the title “Let them Eat Cake”.
After the referendum and the General Election which followed it, both of the main parties stated categorically that they would uphold and enact the results of that referendum. In case readers should need reminding, this was to leave the European Union. It was not to play about on the edges, being halfway in or out; it was not to have another little referendum just to make sure everyone had properly made up their minds. It was to leave the EU, clearly and unequivocally. In particular, every Conservative MP undertook to honour the result. However, as time has passed, a number of Conservative MPs – Nick Boles, Dominic Grieve, Anna Soubry, Heidi Allen, Sarah Wollaston and many others – have all reneged upon their electoral promises (having carefully collected their votes beforehand). From the apparent safety of a five-year interval between elections, they clearly thought they could go back on the promises made to their electors.
These splendiferous be-toga’d and laurel-wreathed orators stride about the place, laying claim to principles that only they, as adepts to the mysteries of constitutional law and precedent, have access to. Much talk is of their right to thought and action, entirely independent of the wishes of their constituents. There is also much grand talk of ‘Parliamentary sovereignty’ and other high-sounding phrases which are lobbed into the conversation on television interviews.
There is the idea, much put about by this high-minded clique, that the average Joe Public does not really understand the finer points of the argument. Thus, Joe’s opinion is far beneath the intelligence of these omniscient parliamentarians. But these same adepts are distressed, despite the grandiloquence of their oratory, the magnificence of their Jesuistry and the precision of their hair-splitting, that few people seem to listen to them; and of those that do listen, many respond with succinct Anglo-Saxon rejoinders.
The basis for these claims of independence from the wishes of the electorate lay in a magnificent speech made by Edmund Burke. As his words and guidance have been so often invoked, let us begin with what Edmund Burke actually said in his speech after winning the election as Member of Parliament to Bristol on the 3rd November 1774 :
“Certainly, gentlemen, it ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interests to his own.”
Here, Burke is setting out the importance of listening to his constituents and their businesses and their welfare. Notice that he attaches great importance to respecting their opinion – a quality that is noticeably missing from many modern MPs consideration of their constituents. However, Burke goes on to qualify this:
“But his unbiassed opinion, his mature judgement, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgement; and he betrays, instead of serving you, if he sacrifices it to your opinion.”
It is this paragraph which has entered parliamentary discourse as if it were Holy Writ. And this is the basis for the Remainer MPs’ determination to vote against the government in the EU Withdrawal Bill and all its amendments. It is founded upon the independence of thought, the ability of being able to listen to all the arguments. Burke concluded this part of his speech with:
“Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where not local purposes, not local prejudices, ought to guide; but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not a member of Bristol, but he is a member of parliament.”
And here Burke is reinforcing his independence because of his superior knowledge at the hub of information and power. But there are a number of objections to Burke’s reasoning when we place it into the modern context:
- Parliament has changed considerably from Burke’s day in that it has now become exactly what Burke said it wasn’t: a chamber of advocacy against competing interests. This change has happened because of the evolution of the party system into much harder lines than existed in Burke’s day. Parliament is now almost always adversarial and partisan.
- The electoral franchise in the late 18th Century was very small compared to today. The electorate in Bristol in 1772 was a mere 2,000. Today, the average constituency is about 70,000 electors.
- Electoral suffrage is now universal for all eligible adults – broadly: men and women who are UK citizens over the age of 18.
- Education is now universal, so the 21st Century electorate is, on average, much better educated than that of the late 18th Century.
- In the late 18th Century, it took two or three days to travel from London to Bristol by stagecoach. Information travelled at the same speed.
- Today, we have not just television and radio, but also the internet. Information travels at the speed of light. From the comfort of our own homes in Newcastle, Edinburgh, Leicester or Truro we can watch an MP make a speech in the House of Commons at the same time as he is making it.
- The electorate is now better educated, informed and able to scrutinise Parliament and government as never before. Social media offers instant scrutiny and comment upon the activities of our government and our MPs.
- Plebiscites or referendums did not happen in Burke’s day and so he never made any comment at all upon how a direct instruction from the people should be considered by his mature judgement.
Even as we acknowledge the changes that have occurred since Burke’s time, it is important to note that, whilst he maintained the independence of an MP as paramount, he also recognised the input of his constituents and further that the considerations of each MP must be for the national good, and not just the local.
Parliamentary sovereignty is a phrase much bandied about, but not so much understood by the public at large. It begs the question: who is parliament sovereign over? Parliament is sovereign, as a law-making body, over the Executive and the Judiciary. It is NOT sovereign over the people. Dicey  defines parliament as: “the King, the House of Lords and the House of Commons” and then goes on to define parliamentary sovereignty as: “….the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament.” He goes on to define a law as: “any rule which will be enforced by the courts.”
At this juncture we should make the point that this is no longer the case for as long as we are members of the European Union, because the EU has law-making powers which over-ride our own. Furthermore, its courts are considered to be superior to our own.
But putting the EU to one side, and given Dicey’s definition, we can say that Parliament is concerned with the making of rules. It does not enforce them – this is the job of the Judiciary. Neither does it involve itself in the day to day administration of the nation and its laws – that is the job of the executive. Parliament can make laws at the suggestion of the government or from within its own membership. It may make or overturn minor judge-made or ‘common law’ if anomalies or injustices arise therefrom.
Outside its law-making duties, Parliament also acts as a check upon government itself. This is the whole point of Prime Ministers questions and those levelled at any other government minister in Parliament. Meanwhile, the judiciary has a powerful check upon excesses of Parliament and government by way of continuous oversight. Although it should be pointed out that the Judiciary does not initiate action against either parliament or the government. Action comes from the judiciary when complaints are made by external entities. The recent case of Miller v Sec of State for DexEU is an example. Likewise, the government does not interfere with the judiciary or its findings. This principle of checks and balances is described as the separation of powers between each of the three entities of Parliament, government and the judiciary.
Figure 1 – Parliament, Judiciary and Government enclosed within the Rule of Law along with the Electorate.
The dark red circles and arrows indicates those bodies and processes which are active in the administration of the nation – broadly speaking this is the state, indicated in grey. The orange indicates a body which is indirect in its effect. In this case, the electorate has an indirect input to Parliament (but not to government or the judiciary) via elections for Members of Parliament who act in a representative role and which are held on the basis of party manifestos.
In this diagram, the three arms of the nation’s administration are each tied to the other with checks and balances. This three-armed structure is the central part of the State. Outside this triangle and the State, are the electors whose input is to appoint their constituency representatives as Members of Parliament. These serve in Parliament and thereby derive our laws. The purpose of the State is to serve and protect the people. All four parts of this structure are encapsulated within the Rule of Law. It is this relationship between all four entities which we describe as representative democracy, because the process starts by the electorate voting in MPs to represent their interests in Parliament. The MPs act as both law-makers and as a check upon the government. The government draws its members from the ordinary MPs – usually from the largest party, and their leader becomes the Prime Minister. It is important to note that the process begins, and is utterly dependent upon, the choices of the electorate in General Elections.
The whole of this construct: Parliament, government (the executive), the judiciary and the electorate are tied together by the rule of law – the principle whereby everyone and all institutions are at one in the eyes of the law.
This delicate structure has evolved steadily over the centuries and has created a distinctive model which has been copied, not always successfully, in other countries. In particular, the central idea of the rule of law governing not only the people but also all of the institutions of the state, has been a hallmark of the success of the British constitution, the rule of law and the foundation of our economic success.
The referendum and afterwards
In the case of the EU referendum in 2016, this picture was altered considerably. The matter of our continued membership of the EU was deemed to be so important that the government felt that only a direct appeal to the electorate would suffice. Referendums are not a common method of decision making in the UK, although they are very much more common in other European countries, especially Switzerland.
In the UK, there have been eleven referendums since 1945, plus the 2016 EU referendum. There is plenty of precedent to guide us. However, the effect of a referendum, in constitutional terms, is to remove the decision-making process from Parliament and go direct to the people for a decision. This is a departure from the usual representative democracy because the issues are a matter of profound constitutional change, affect everyone, and affect the way in which the UK is governed and administered. This process is direct democracy.
In these referendums, the electorate have been asked binary questions, such as whether or not Scotland should have a devolved parliament with its own tax raising powers. In this instance, the answer to this question was ‘Yes’ and Scotland dully had its own parliament, in addition to Scottish MPs being elected to attend the Westminster Parliament. In all of these referendums, the Westminster Parliament did not get involved in the progress of the decision and not only did not hinder the outcome, but also ensured that the outcome was dully enacted. Figure 2 below shows the effect of direct democracy in the event of a referendum.
Figure 2 – The effect of direct democracy in a referendum
As with Figure 1, the dark red indicates those bodies and processes which are active. The orange shows those bodies and processes which have an incidental or minor effect upon the process; and the pale yellow shows those bodies which are passive and/or have no part to play. Once the referendum is conducted, the decision made and put into law, the relationship of the electorate to the state reverts to the condition in Figure 1.
This form of direct democracy is effectively a contract between the people and the government. Parliament is not involved in the decision making and is not a party to that contract – except as an enabler in providing the necessary Act of Parliament which permitted the referendum to take place in the first place; and subsequently in putting the decision into law. Neither is Parliament involved in dictating the terms of the conduct of the government vis à vis implementing the result of the referendum. Once the enabling Act is passed into law, Parliament is (or should be) passive. So too are the judiciary (as usual). But notice that, even though the referendum short-circuited Parliament, the process was still within the rule of law, because that process was sanctioned by Parliament.
In the case of the EU referendum, the EU Referendum Act was passed in Parliament with a majority of 544 to 53 votes and came into force on the 1st February 2016. The referendum was held on the 23rd June 2016. 33.5 million votes were cast; 17.4 million votes were for Leave and 16.1 million votes were for Remain. ‘Leave’ therefore won by 1.3 million votes. The vote to Leave was the biggest vote for anything ever achieved for any cause in the history of the United Kingdom. The legitimacy of the referendum, its results and the intended exit from the EU are, at this point, beyond doubt.
Article 50 and its consequences
It was the government’s original intention to trigger the UK using Article 50 of the Lisbon Treaty to exit from the EU by using Royal Prerogative. This was because our relationship with the EU is one of foreign affairs, and the Foreign Office is empowered to use this prerogative in such cases. This negated the need to seek Parliamentary approval for the submission of that notice. However, Mrs Gina Miller – a financier by occupation – thought otherwise and challenged the Secretary of State for the Department for Exiting the EU (DexEU) at the High Court. The High Court found in favour of DexEU and Mrs Miller appealed. The Supreme Court then found in favour of Mrs Miller and so the whole thing was left for Parliament to decide whether the Article 50 letter should be submitted or not. Parliament dully voted to grant the Prime Minister the authority to issue the Article 50 notice. The leaving date of 29th March 2019 was set in statute by the European Union (Notification of Withdrawal) Act on the 16th March 2017. On the 21st March 2017, the government formally served the Article 50 notice of withdrawal to the EU.
Figure 3 – The progress of events flowing from the Gina Miller case
The process began with Gina Miller’s case against DexEU (here described as the vexatious litigant in the red diamond) which was designed to prompt Parliament into beginning a sequence which would stop Brexit in its tracks. The courts (in dark red) agreed and the government (in a paler red because it could only react to events outside its control) was thereby obliged to generate the necessary Bill. Despite the confidence of Mrs Miller, Parliament voted to withdraw from the EU. Meanwhile, the people (shown in pale yellow) have now lost control of events and are passive. The clear referendum instruction given to the government is now increasingly marginalised and is also shown in pale yellow.
Whilst the fact of leaving the EU was set in law, the nature of the subsequent arrangement with the EU was up for negotiation during the two-year interregnum between serving notice and actually leaving. Initially, DexEU started work on preparing the ground for a sensible free trade agreement between the UK and the EU, which took into account the special nature of the existing relationship between us.
This was completely trashed at the Chequers meeting between Theresa May and the Cabinet in July 2018. The sequence of events at Chequers is outlined here. In summary: a separate and parallel draft agreement had been prepared by the team in No. 10 Downing Street, completely unknown to the very department that was responsible for exiting the EU. It was presented to the Cabinet as a fait accompli. It was to be Theresa’s Deal or nothing. A limited number of resignations followed, but Theresa May was unmoved and remained in office.
Outside Parliament, there has been a continuous, organised, concerted and damaging campaign by those who wished to reverse the referendum result. This group consists of MPs who voted Remain; and high-profile ex politicians such as Tony Blair, media such as the BBC, every establishment organisation from the Royal Society downwards. This is a campaign which has been largely funded by Roland Rudd. There has been a continuous media barrage about the ills of leaving; and when we leave, the nature of leaving. It has been entirely negative and designed to suggest that lil’ ‘ol Britain cannot make it on its own without continuous life support from Jean-Claude Juncker, Michel Barnier and Guy Verhofstadt.
Unfortunately, Theresa’s Deal was a travesty of the clear instructions from the electorate. It amounted to remaining in just about all institutions of the EU, paying huge sums of money without any say over where and how it was spent; a commitment to entrench our armed forces into the EU defence force; remaining in a customs union, having little or no say over our own international trade deals and a blatant attempt to sever the Union of the United Kingdom by erecting a border in the Irish Sea and keeping Northern Ireland as a de facto member of the EU. In other words, it was Brexit in Name Only.
Figure 4 – Parliament and the EU dictating to the government.
Theresa’s Deal went through the DUP and was shredded because of the Northern Irish border. It reappeared in other forms and was provisionally accepted as a basis for negotiation by the EU. It then became known as the ‘Withdrawal Agreement’. Once again, the Irish Backstop became an issue and the DUP rejected anything which compromised the Union. The WA (as it became known) was presented to Parliament three times, and three times it was rejected. It has taken on the form of a monster that simply will not die, no matter what Parliament says. Theresa May remains in office, having lost every last vestige of credibility. Attempts to remove her have failed. The Withdrawal Agreement and Theresa May are now inextricably entwined from the hip upwards. They succeed or fail together.
It looks increasingly likely that the draft Withdrawal Agreement had actually been drafted in Brussels by the EU and agreed in a series of shuttle meetings between Ollie Robbins and EU officials. Outside the EU completely, but always in control of EU events, was Angela Merkel. She and Theresa May have held several one-to-one meetings, both before Chequers and after. The Withdrawal Agreement is essentially an EU product.
And thus it is that the EU has driven a wedge into both Parliament and the UK government. In so doing it has also severed the people’s instruction to leave the EU, because the WA does not, in effect, leave the EU. The close association between the people of the United Kingdom and their institutions of the state have been weakened. Our rule of law has been diminished in such a way that it now resembles the Napoleonic system of continental Europe. This has happened entirely by stealth.
The government has been weakened by the EU insertion of the Withdrawal Agreement and their subsequent refusal to alter anything to make the product look reasonable to the British public. Meanwhile, Parliament itself has continued to weaken the government and Theresa May with its constant chipping away at the principal objective to leave the EU. Theresa May is now so helpless that she has enlisted the support of the Leader of the Opposition, Jeremy Corbyn. Only a week or two before, she described Corbyn as a Marxist who is unfit to hold office. This description is entirely reasonable, because it is a matter of fact.
The weakest government in the history of the United Kingdom has almost disintegrated under the combined barrage of the EU and Parliament’s determination to reverse the result of the referendum. Parliament, given the straightforward task upon a binary issue, cannot make up its mind. The Labour MPs are mostly compliant to the voting wishes of their leadership, even though those wishes are frequently contradictory and sometimes not communicated at all. The Conservative Party are split into three – the Remainers, the Leavers in the form of the ERG, and those wallowing about in the middle who are too spineless to commit themselves to either option. The only consistent parties are the SNP who hate the English, the Liberal Democrats who want to reverse the referendum and have said so since the beginning, and the DUP who are demonstrating an admirable sense of the Union and intractable Ulster obduracy. If our democracy survives at all, we will owe a huge debt of gratitude to the Democratic Unionist Party.
As Parliament disintegrates and the government almost disappears under the rubble of Theresa May’s bunker, there is a serious risk that an election is held and that Corbyn becomes Prime Minister. Given the chronic indecision and weakness of Parliament and a bunch of unreconstructed Marxists in No. 10 issuing the orders, the rule of law will inevitably break down. There will be a government which will slowly and stealthily introduce more and more draconian measures for emergencies – which are themselves a product of its own policies. Business will desert the country and we will slide into the totalitarian darkness of a North Atlantic Venezuela.
Figure 5 – The eventual slide into darkness.
This grievous state of affairs has been completely unnecessary. The slippery slope began with a few Members of Parliament who deliberately choose to make an entirely dishonest interpretation of Burke’s Bristol speech. They completely evade all acknowledgement of the need for national considerations and the requirement to carry out the instructions of the people – as determined by a form of democracy that Burke himself never contemplated. In their pompous, disdainful arrogance, they have set running a course of events that brings us perilously close to a Marxist government that makes us all answerable to the state (and not the other way round). It has brought Parliament, politicians and the institutions of state into national and international disrepute. As things stand Theresa May has little more status than some of the many petty despots in hot parts of the world. She has brought all of us into despair.
The only people who have any power at all to do something about this, to remove Theresa May and get out of the European Union swiftly, with a minimum of fuss and ‘no deal’, are the Conservative Party and its MPs. So far, there are few of them with any real courage. Our democracy and rule of law is hanging by a thread.
 Burke, Edmund; The conclusion of the poll at Bristol. In: Reflections on the revolution in France and other writings. Ed. Jesse Norman, (2015) Harper Collins, London.
 Dicey AV; The Law of the Constitution. Ed. Allison JWF (2013), [p.27] Oxford University Press, Oxford.