Theresa May, image, FCO.
What we may call constitutional ‘populism’ has thrown the British constitution into a state of confusion. Old certainties about the supremacy of parliament, the role of parties and the independence of the civil service and the courts are being challenged. Alarmingly, the nebulous idea of a remote and ‘illegitimate’ establishment seems now to include our democratic representatives in parliament, as well as the civil service and the courts. Theresa May, who, ironically, is an unelected prime minister who won office through the internal processes of her party, said in a speech last October that those that challenged the legality of the Article 50 notification were ‘subverting democracy’.
It was an extraordinary thing to say. This statement – not an isolated case – was a public endorsement of the populist narrative. Newspapers then followed suit in branding the judges as ‘enemies of the people’ after they found that an Article 50 notification must be decided by parliament, under standard rules about the use of the royal prerogative. Even Vernon Bogdanor, an experienced observer of the British constitution, wrote a few weeks ago that the will of the people, not the will of parliament, is now sovereign (‘After the Referendum the People and not Parliament are Sovereign’ Financial Times, 9 December 2016). Anthony Barnett also argued that Brexit has ‘killed the sovereignty of parliament’ in these pages in December. Barnett, however disagrees strongly with Bogdanor’s conclusion that the change is to be welcomed. Barnet alerts us to the risks of authoritarianism with much needed clarity: “The 'Will of the People' must now prevail. Those who resist are 'Enemies of the People’. This is the raw meat of dictatorship.” In Barnett’s view the required response is the creation of a European style written constitution, which will protect British democracy from authoritarian populism.
