The curse of the European issue has been slowly re-emerging for the Tory-led government after a period of relative quiet and calm.
Right-wing voices have stated that the European Union Bill with its Clause 18 defining parliamentary sovereignty is not clear and powerful enough to block the continued encroachment of Brussels into British public life.
What then is this thing called parliamentary sovereignty, why are our political classes obsessed with it, and what does this tell us about the health of our democracy?
Britain’s parliamentary sovereignty is based on the Diceyian notion that no Parliament can legally bind its successor. It is of course a myth, fraud, and part of the folklore which makes up how the British constitution has evolved over time.
The actual reality is that Britain stopped being governed by parliamentary sovereignty in the pure sense a long time ago. The rise of party and cabinet government was one factor in the early 20th century bemoaned by Dicey. Another was the creation of dominion status for Canada and Australia in the Empire, limiting the powers of Parliament.
A significant moment in all of this was the accession of the UK to the then Common Market in 1973. Related to this has been the emergence of a more politicised judiciary, the increased use of judicial review and the passing of the Human Rights Act.
Then there is Scotland. Long before devolution we had MacCormick versus the Lord Advocate in 1953 – a complicated judgement which in many eyes qualified parliamentary sovereignty in Scotland.
More crucially, do our elected politicians really believe the people out there hold on to the idea of parliamentary sovereignty? Have they learned nothing from the expenses scandal and the private welfare state they built to cocoon themselves from the harsh winds they inflicted on the rest of us? The public rage on this showed a sentiment that was shaped by popular, not parliamentary sovereignty.
Political power now stems from the people, not Parliament. The confused Conservative Eurosceptic response to this is shown by the fact that their suggested ultimate defence of parliamentary sovereignty in the European Union Bill is the holding of a referendum whenever the European Union proposes a significant extension of its powers into UK domestic life.
As any constitutional student at even A Level would know, a referendum – a device once frowned upon by the defenders of the British constitution as being ‘unBritish’ and the sort of thing ‘continental dictatorships’ used such as Hitler and Stalin – undermines parliamentary sovereignty. The reason being that it is an expression of popular sovereignty.
Some of the Tory discontent in this is admittedly tied up with the party’s backbench frustration with the Cameroons and David Cameron himself. There is a feeling which strays far beyond the Tory right that David Cameron isn’t exactly ‘a Tory’ and that this is not a Conservative enough administration.
The toxic distrust on the Tory right takes them into a surreal world of the land of make believe where a more full-blooded Conservative Party would be rapturously received by the voters; it is the kind of Walter Mitty fantasyland which the Labour left used to inhabit in the 1980s and which did such damage to the Labour Party.
Strangely one of the paradoxes of this is that as parliamentary sovereignty has weakened in practice, our political classes have become more obsessed by it. One explanation for this is that it is one of the tales told that makes Westminster and its politicians feel special and unique. Parliamentary sovereignty is one of the last stories of British exceptionalism, a kind of British version of the American dream but just for our political elites.
Then there is the story of British democracy and liberty, which has by modern times been reduced to a Whig-style caricature and set of clichés whereby all the Westminster classes sign up to the special importance of Britishness.
Parliamentary sovereignty has a special place in this story, for it is the conventional account of how Britain became a democracy, its politicians stood up to despots, and overthrew arbitrary power. All of this was then given validation through British democracy surviving the Second World War when as the phrase goes ‘we kept the lights on in Europe’ and then built a welfare state and civilised society.
Our democracy and Parliament was meant to be the envy of the world at the end of the Second World War, but this fed into a British complacency and conceit. One British expert on politics responded to an American academic by stating that ‘the British constitution’ was ‘as nearly perfect as any human institution could be’. Now only two other democracies in the world have parliamentary sovereignty, New Zealand and Finland, while the First Past the Post electoral system is only rarely used in places such as the USA, Canada and India. British democracy is increasingly an anachronism in the world.
There is more to it than that. The old system of parliamentary sovereignty was shaped by a carefully constructed system of checks and balances which gave Britain relatively representative and responsible government. However, as Britain faced huge economic and social challenges and decline, this system began to fall apart.
From Thatcher on, governments have chosen to interpret a literal version of parliamentary sovereignty to do what they like: be partisan, centralise powers, reward groups of supporters, and abolish tiers of government as they fancy, and much worse.
Thatcherism and New Labour drove through their revolutions on minority votes, aided by our truncated democracy and the ethos of parliamentary sovereignty. This allowed them to mount in Chris Mullin’s words ‘a very British coup’, using the cloak of time-old precedent to push through far-reaching change.
Still to this day the dusty, rarefied, ancient corridors of Westminster are filled not only with the ghosts and tales of old, but with present-day worship and deference to the voodoo myth that is parliamentary sovereignty.
It is a fiction, but the worst, most damaging kind of fiction, one which our political classes believe to be true, and act accordingly. It is a mantra which animates and holds prison our politics, political system and ourselves, the people.
It has long outserved its usefulness, and should be carted away to some special museum or made the subject of a David Starkey TV special on the mumbo-jumbo which people used to believe in the bad old days. It is time for Britain to enter the modern age, become a fully-fledged democracy, and dispense with the idea that parliamentary sovereignty protects us.
This piece was originally published in The Scotsman.