Leading article

Brexit and the power principle

26 October 2019

9:00 AM

26 October 2019

9:00 AM

It has become perceived wisdom that we are heading for a ‘people vs parliament’ election. But that is a false construct. Who gets to sit in parliament is the one matter in our political system over which the people have almost total control. The reason so many MPs are trying to avoid a general election is that they know the electorate will decide whether or not they keep their jobs – which is why so many of them are seeking to avoid it. The real struggle going in is parliament vs the law: where MPs, realising they cannot win democratic support for various policies, try to pass laws now to stop parliament (and, ergo, the people) changing policies later.

So this is a slightly different power struggle. This is between the right of the government to govern and a permanent infrastructure of inviolable rules: policies that the people — or, specifically, the MPs they elect to represent them — are un-able to change. The new battle us about how our system is wired. How much of our system parliament can change, and how much of it is kept out of voters’ reach.

The arguments against Boris Johnson’s EU Withdrawal Bill offer a classic case in point. The Labour front bench refused to support the Bill on the grounds they feared it would lead to the erosion of workers’ rights. A cross-party group of MPs have tabled an amendment demanding that environmental standards will not be watered down. Yet the Withdrawal Bill is not about either issue: it simply sets out the terms of Britain’s departure from the EU. It would mean that such issues can be decided in future by Jeremy Corbyn, Boris Johnson, or whoever the next leader is. So the attempt to have these laws inserted now, and mandated at the European level, makes sure they cannot be changed by a new Prime Minister later. This means fleeing from the forces of democracy.

We can see Tory MPs too also worrying about what the voters, collectively, might decide to do. The Tory rebels — who tend to be patrician types, products of England’s finest schools and universities — talk as if they seek a permanent establishment. And that the threat of Brexit is that it would allow a whole swathe of issues to be decided by the sort of people who voted to leave the European Union in the first place. They see in the European project a means of keeping various issues (such as immigration control or Corbyn’s nationalisation) off the agenda.

The Brexit-supporting Tories say that they are the true democrats. But even they are often unwilling to trust ‘the people’. For example, one might think that a government that has just been dragged through the courts over the prorogation of parliament would be cautious about giving courts more powers. Yet the Queen’s speech included a proposed environment bill which would have exactly that effect: it would set up a quango with the express purpose of ensuring an elected government hits various environmental targets and principles. The whole idea is to place this policy out of the reach of democracy. David Cameron did this too when he passed a law mandating that governments must spend 0.7pc of GDP on overseas aid. Passing a law means that this policy is now guarded by lawyers, rather than politicians. It was an admission that the policy was unlikely to sustain democratic consent.

More so even than now, decisions such as whether to go ahead with a third runway at Heathrow or HS2 — which should be political decisions — will now ultimately be made by judges. Those close to Boris Johnson privately admit that they hope the courts or a quango will block the Heathrow expansion so he doesn’t have to lie down in front of the bulldozers. But the decision about whether or not to go ahead with such infrastructure projects is ultimately political, and politicians should be accountable for them.

To have a permanent infrastructure of fundamental principles built into the constitution, with which elected politicians cannot interfere, is an idea used by many countries — so long, that is, as those principles are limited to fundamental freedoms and human rights. The widely admired constitution of the United States introduced that concept more than two centuries ago, and since the 1940s most countries have chosen to be bound by the United Nations Declaration of Human Rights, and many to the European Charter of Human Rights, too.

But the existence of written rules immediately passes power to the lawyers and courts that interpret them. In Britain, our constitution can be summed up by a single sentence: what the Queen enacts, through parliament, is law. We leave politics to the politicians, and law to the lawyers. This is what has given our legal system a global reputation for fairness: the notion of activist judges is still foreign to us. The British model — common law that emerges through custom, and a parliament whose members fear the people — has given us perhaps the most responsive democracy in the world. This is what Brexiteers say they seek to protect.

Constraining the remit of democracies – and elected politicians – is not a new idea. It has been part of the culture of the EU since its foundation. Often for good reasons. Many of its member states had mixed results with democracy, and now seek checks and balances to stop demagogues taking over the apparatus. That noble concept has been abused by lobbyists intent on using the unelected European Commission in order to bypass democracy on all sorts of minutiae of law, from the number of hours which employees can work to how long a migrant worker can live in a country before being eligible for out-of-work benefits.

So we now have issues where control lies in the court, or in supra-national organisations like the EU. This is what voters are reacting against: here, with Brexit and on the continent by voting for populist parties. This has also led to the view of the EU as a source of instability, preventing governments from responding to new concerns from citizens. Rather than produce stability, this is the recipe for populism.

Brexit was, from the offset, intended to realign democracy with public concern from retrieving sovereignty. An opportunity to repatriate powers — not just to national governments but to the general public. It will have been a pointless exercise if, instead of allowing us the freedom to be able to make our own laws, politicians think of new ways of putting such powers out of reach.

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