In Heroic Failure: Brexit and the Politics of Pain, Fintan O’Toole asks: ‘If restoring sovereignty to Westminster and the British courts is the point of the exercise, why does the rhetoric of Brexit so quickly resolve itself into hysterical attacks on the exercise of this very sovereignty by Parliament and the Supreme Court?’. O’Toole suggests that in order to escape this contradiction there is ‘recourse to the dark, deep past where sovereignty is befuddled by feudal notions of honour and duty’, and particularly, via the likes of Jacob Rees-Mogg, to rhetorical evocations of both English ‘vassalage’ to continental European powers in the dim and distant past, and to great victories such as Waterloo, Crécy and Agincourt.
This is undoubtedly the case, but in order to reach the heart of this contradiction we also need to understand what many Brexiters actually understand by sovereignty, and by parliamentary sovereignty in particular. To help us to do so, it might be useful to turn briefly to the shenanigans attending the passage of the Human Rights Act (HRA) 1998.
The Bill was constantly hedged about by endless assurances that it ‘must not disturb Parliament’s supremacy’, as a much-beleaguered Lord Irvine habitually put it. To which Anthony Barnett responded in This Time: The Constitutional Revolution:
As if that historic supremacy is as fine and dandy as it ever was. The supremacy to which Irvine refers is formulaic. Already the Commons is the site of the submission of the legislature to the Executive. The claim of the ‘supremacy’ of Parliament raises rather than resolves the issue of democracy, therefore. A strong party system has knee-capped the power of MPs to hold Ministers to account. With the Lords otiose, the supremacy of the Commons means the supremacy of party. In modern conditions, the supremacy of party means the supremacy of the leader.
These, however, were the antediluvian arrangements which many Tory MPs and most British newspapers wanted to preserve at all costs, although the latter’s defence of the status quo was motivated not simply by constitutional atavism but also by fear that the HRA would limit their ability to run highly lucrative stories about people’s private lives (as has indeed to some extent turned out to be the case).
Thus began decades of press attacks on both the European Convention on Human Rights (ECHR) and on judges who have attempted merely to interpret legislation in a way compatible with it. These were regularly lambasted as ‘dictators in wigs’ and accused of ‘usurping the role of Parliament’, ‘denying elected ministers the right to govern’ and, more recently, during the Article 50 affair, as ‘enemies of the people’.
Underlying all of these onslaughts was the idea that parliamentary sovereignty was being threatened by the judiciary, but until recently the nature of that sovereignty which was being so stoutly defended remained rather vague. Now, however, its contours are becoming clearer. This is largely due to the campaign by Brexiters in both the Tory party and press against those parliamentarians who have fought tenaciously to give Parliament an active role in shaping any Brexit deal. Highly prominent here have been the Tory MP for Beaconsfield, Dominic Grieve, and also the Speaker, John Bercow.
During the Brexit negotiation process, Grieve, who had voted for remain in the referendum, made a number of amendments to the Government’s plans to leave the EU, all of which were aimed at giving MPs a significant role in deciding on the final shape of the Brexit deal, and at stopping the Government from trying to use so-called Henry VIII powers to put its preferred version of Brexit into effect without giving MPs a proper say on the details.
However, these attempts to safeguard the ability of Parliament to withstand being steamrollered by the government were met with absolute fury by Tory MPs who supported Brexit, and by their numerous and vociferous allies in the press. For example, the Sun protested that one of Grieve’s amendments ‘would tear up centuries of precedent by limiting the Government’s ability to govern’, and in the next day’s edition, Quentin Letts raged: ‘After a secret meeting with the appallingly biased John Bercow, Grieve got that anti-Brexit Commons Speaker to chuck out centuries of accepted debating rules. Propriety was smashed like plates at a Greek wedding’.
Meanwhile in the Mail, Bercow was accused by Dominic Sandbrook of being ‘shamelessly partisan’; by Stephen Glover of ‘finagling’ and ‘plotting to overthrow an enfeebled government’; by David Starkey of a ‘coup against the people’; by Richard Littlejohn of a ‘treacherous coup’; and by an editorial of being ‘shameless’ and a ‘national disgrace’.
Grieve - round two in the battle over human rights and the rule of law
In this context, it should also be remembered that this is by no means the first time that Grieve had found himself in the eye of a political storm for being a friend of ‘Europe’, and this brings us back to the notion of human rights. In particular, it needs to be stressed that Grieve lost his Attorney General portfolio in July 2014 for being a firm supporter of the ECHR and the Human Rights Act 1998 at a time when his party had more firmly than ever set its face against them (and against ‘Europe’ more generally). His sacking from the role of the Attorney General was a ‘sop to more radical elements in the Conservative party’, argued an article in the Guardian, adding that Grieve had ‘found himself victim of a piece of the most ruthless realpolitik’.
For Grieve, much of the criticism of the ECHR from some of his colleagues – including long-time foe of the Convention, and future Prime Minister, Theresa May – were ‘hysterical untruths’. Grieve was simply pointing out that the UK’s adherence to the ECHR derived from the country’s attachment to the rule of law and its international legal obligations; it would potentially be a breach of the rule of law, and of these international legal obligations, to allow parliament to ignore rulings of the Strasbourg Court unfavourable to the UK, as leading figures in the Conservative party were advocating at the time (and indeed still are). In other words, Grieve’s defence of the ECHR originated – it could convincingly be argued – in the idea that the Court’s authority over the UK was in no way restricting parliamentary sovereignty; rather, quite ironically, it was the direct outcome of the exercise of that sovereignty. David Feldman has expressed this idea with striking clarity, in Jeffrey Jowel’s, Dawn Oliver’s and Colm O’Cinneide’s The Changing Constitution:
[I]nternational institutions like the Strasbourg Court exercise authority over the UK because the UK has repeatedly bound itself by treaty to accept their rulings (an exercise of, rather than interference with, national sovereignty), and that has nothing to do with the legislative sovereignty of the Queen in Parliament or the political sovereignty of the UK’s electorate.
However, the deleterious, post-truth, vote-seeking soundbites of the former Attorney General’s ECHR-hating fellow Conservatives, about the alleged ability of the European Court of Human Rights to frustrate parliament’s sovereign power, were clearly far more in line with government thinking than Grieve’s appeal to the rule of law and to the UK’s international legal obligations vis-à-vis the Convention.
Even more inexplicable is the fact – perhaps further proof of blind adherence to an antiquated parliamentary sovereignty ideal – that at the international level (save for Russia and Turkey, perhaps), the UK government is very much in isolation in adopting such a polemical approach to the Convention, and this despite the fact that the number of cases which the UK actually loses is extremely low. As a 2015 report by the Joint Committee on Human Rights noted, the proportion of cases is not 75% or 60%, as press stories often claim, but closer to 1%. No wonder, then, that Conor Gearty rightly expressed his amazement in On Fantasy Island – Britain, Europe and Human Rights, about the fact that, as far as the ECHR is concerned, ‘the main point of discussion in Britain is […] about how Strasbourg is exceeding its remit, pushing the UK too far, forcing its continental laws on us, and so on’. Indeed, only on ‘fantasy island Britain’ is the ECHR seen as posing a real threat to national, parliamentary sovereignty.
Disturbing rhetoric – from the Express to the Reith lectures
As one of us has argued elsewhere, the government now ‘seems to be playing the waiting game until the right moment comes to repeal the Act, once Brexit is out of the way’. In fact, just how deeply entrenched the anti-ECHR narrative is in the UK, has recently become apparent in Lord Sumption’s Reith Lectures entitled Law and the Decline of Politics. Here the former Supreme Court judge has expressed profound concern that ‘allowing judges to circumvent parliamentary legislation or review the merits of policy decisions … confers vast discretionary powers on a body of people who are not constitutionally accountable to anyone for what they do’. This process, in his view, is particularly worrying when it comes to human rights law, which ‘transforms controversial political issues into questions of law for the Courts. In this way it takes critical decision-making powers out of the political process’. Disturbingly, he also drew a comparison between the values of the Strasbourg court and those of the post-war dictatorships of Eastern Europe, in that ‘they both employ the concept of democracy as a generalised term of approval for a set of political values. The choice of elected representatives are, on that view, only legitimate within the limits allowed by these values’. And whilst hoping for ‘a change of heart among both the domestic judiciary and the Strasbourg judiciary about how far it is legitimate to go in differing from democratic institutions’, he argued that ‘if there is no significant change, yes, I would withdraw from the Human Rights Convention’.
Inevitably Lord Sumption’s remarks were gleefully reported by the Express (‘Former Supreme Court Judge Claims UK Should QUIT European Court if it BLOCKS Will of MPs’) and The Times. We should perhaps be careful not to extrapolate from these remarks that senior members of our judiciary overall take a critical approach to the ECHR – in fact, as Ed Bates has demonstrated, ‘much more has been said [by senior members of the judiciary] in support of the Convention than by way of opposition’. But the fact that such a distinguished former Supreme Court judge holds such views on the sovereignty of Parliament does serve to demonstrate the singular sensitivity of the area which Grieve, Bercow and other like-minded MPs have entered in their determination to defend the power of Parliament against not simply the overweening power of the executive but prime ministerial fiat. It may also help to explain why this should have provoked such outrage amongst Brexiters and the vast bulk of the Tory press. But, whatever the case, the brouhaha is surely abundant proof of Anthony Barnett’s contention in The Lure of Greatness that the origins of the British idea of the sovereignty of parliament ‘go back to the absolutist, pre-democratic character of the British state’. It also shows that A.V. Dicey’s argument in Law of the Constitution (1885) that ‘the one fundamental dogma of English constitutional law is the absolute legislative sovereignty or despotism of the King in Parliament’ still appears to dominate the thinking of many of those in positions of power today, extraordinary as that may seem in a democracy in the twenty-first century.
At the same time, however, a new sovereign, ‘The People’, has arisen, and the Brexiters take the view that the Commons should become ‘a mere vehicle for a direct decision of the public’, as Barnett puts it. The ‘will of the people’ must now prevail, and those who try to resist or thwart it are ‘enemies of the people’ and indeed of democracy itself. We are thus faced with two equally un- and indeed anti-democratic conceptions of sovereignty: parliamentary sovereignty conceived as the sovereignty of the executive, and, ultimately, of a prime minister armed with Henry VIII powers; and popular sovereignty conceived as the will of the majority. The former is quite breathtakingly antediluvian, and the latter, as Barnett warns, is ‘the raw meat of dictatorship’.
That Grieve received death threats as a result of his efforts to safeguard the powers of Parliament over the executive, and has now become the target of a vicious campaign in his Beaconsfield constituency to de-select him as an MP, a campaign in which at public meetings he has repeatedly been called a ‘traitor’ and ‘liar’, and where there is convincing evidence of organised entryism into the Tory ranks by former members of UKIP, all too clearly bear out Barnett’s grim warning. In these febrile times, we apparently enter upon questions of parliamentary sovereignty at our peril.