Liberal Democrat peer Viscount Thurso in House of Lords in 1998, having failed to amend the Scotland Bill, bringing back a Scottish Parliament after nearly 300 years. Press Association archive. All rights reserved.While the Miller case has been hailed as a victory for Parliament in the face of an overbearing executive, that is only half of the story. The Supreme Court in Miller has restated the conventional narrative of parliamentary sovereignty; the most surprising aspect is that the case was needed in the first place. Why did it take the litigation of Gina Miller and Deir Tozetti Dos Santos to require the Supreme Court to make a decision that could equally forcefully have been articulated by the speaker of the Commons on the advice of his lawyers?
The Supreme Court decision affirms the conventional story of parliamentary sovereignty. An understanding that has its origins in the decision of the Tudors to govern through Parliament and the seventeenth century struggle with the King; settled decisively in Parliament’s victory in the Civil War; confirmed in the Glorious Revolution, and the Bill of Rights (1689).
Parliamentary sovereignty predates the creation of a unitary state, and is only given democratic force by the Reform Acts of 1832 and 1867, where Parliament is made subject to the people. But since the time of Albert Venn Dicey’s An Introduction to the Law of the Constitution (Dicey, 1885) – still acknowledged by the Supreme Court as the classical statement of Parliamentary Sovereignty – the doctrine has suffered a century’s long erosion with the growth of a supranational constitution; the judicialisation of human rights; a devolution settlement creating a quasi-federal state and the increasing reliance of the executive on delegated legislation.
Now that Parliament has passed the EU Withdrawal Bill it remains the task of Parliament to provide for a meaningful vote on the ‘final deal’ regarding Brexit and ensure the rights of existing EU citizens, not least by its select committees holding the government to account at every stage along the way. It remains within Parliament’s power to ensure full control of the process throughout the negotiations.
Far from thwarting the democratic will of the people, it is the responsibility of Members of Parliament in their role as elected representatives to scrutinise the decisions of the executive precisely as an expression of their constituency mandate. Members of Parliament who have no appetite for exercising their scrutiny reserve should make way for others who are more willing to do so. If Parliament collectively cannot fulfil that task it is time for a codified constitution to replace the fig leaf of parliamentary sovereignty with a set of entrenched and codified rights.
Sovereignty as a legal concept emerges from, but is not identical with political reality. According to a traditional doctrine it can only change as part of an iterative process involving a change of constitutional practice – such as the successful entrenchment of legislation. While relationships with the European Union, devolved legislatures and a culture of human rights have provided the context; the ineffectiveness of parliamentary accountability during periods of strong majority government has been a catalyst for change.
The power of political parties inverts the model of executive accountability to Parliament by substituting executive control of the legislature. Where the executive dominates Parliament as seldom before, parliamentary sovereignty risks evisceration to a point where it becomes a criterion for the legitimacy of executive action of which it is no longer the source. By providing for a non-legally binding, pre-legislative, yes-no referendum on a complex set of constitutional relationships and then treating its result as set in stone as the ‘will of the people’ the Conservative Government has undermined the very parliamentary sovereignty that it claims to be restoring. Many MPs of all political parties no longer understand themselves as representatives but as mere delegates. It is not the use of a referendum that is the problem but the way it has been used.
Nothing illustrates the atrophy of Parliament more persuasively than the fact that the debates regarding the scope of parliamentary sovereignty in Miller began in the courts and affirmed a sovereignty that Parliament was unwilling or unable to claim for itself via Parliamentary process. If Parliament cannot reform itself internally as Stein Ringen calls for in openDemocracy there is a need for an extra-parliamentary movement for a codified constitution which would include the reform of the House of Lords, entrenchment of social and economic rights, a more proportional system of election and a transparent process for any citizen to raise their constitutional concerns via petitioning a constitutional court.
The Select Committee on the Reform of the House of Commons under the chairmanship of Tony Wright was a first step. While the establishment of a Business Committee to give the Commons a role in setting its own business and the election of Select Committee Chairs (see Mark Fisher) gives the House of Commons the theoretical power to hold the government more effectively to account, the process requires the support of an active citizens’ movement that can engage with Parliament at an institutional level. Why do concerned citizens today have any less right to be heard constitutionally than those such as Gina Miller who have the resources to litigate in the High Court or the children of hereditary peers such as Lord Thurso who was elected to the House of Lords from an electorate of only three Liberal members eligible to vote?