The People’s Pledge: a demand for popular sovereignty

Imagine if May’s referendum on the Alternative Vote were a referendum on the UK’s membership of the EU. The media would be completely filled with the story, and we’d see the claims and counter-claims of the two sides in the argument being fired off in quick succession like a never-ending tennis rally. Compare that to the apathetic drip-drop of coverage the AV referendum has thus far proved capable of generating, and it’s easy to see which is the more important issue.

The EU matters more to people – it raises far more heated emotions – and it’s a more important matter in itself, from a constitutional point of view. Those two statements are intimately connected: the extent of people power – whether and to what degree we have it – matters profoundly to the citizens of a democracy, and it’s also the core constitutional issue. The fact that the EU gets people’s hackles up so much is an indication of the people’s unerring sense of where the real issues affecting their right of self-determination lie. And the fact that a referendum on the system used to elect our hallowed Parliament is being greeted with such indifference is a damning indictment of the increasing irrelevance and illegitimacy of that Parliament and its supposed sovereignty.

The UK parliament has transferred sovereignty – our sovereignty: the people’s sovereignty – in so many areas to the EU, and we the people have not been consulted. In fact, the acronym ‘EU’ has become so familiar that we forget that we’ve never been consulted on our very membership of the EU: the European Union. People who oppose a referendum on our membership of that body point to the fact that ‘we’ were consulted on that topic in 1975. However, apart from the fact that you’d have to be born in or before 1957 to have voted in that referendum, it also wasn’t about membership of the European Union at all but about whether the UK should remain in the European Community (or the European Economic Community (EEC), as it was known then).

This is not an issue of mere nomenclature. The European Union is an entirely different legal entity that didn’t exist until 1993, when the Maastricht Treaty was ratified by all EU member states. It’s this ‘Treaty on European Union’ that gave legal effect to the constitutional provisions and institutions through which most of our laws are now made, with the role of individual national parliaments being merely to incorporate EU Directives into their respective legislation. The Maastricht Treaty was in fact an EU constitution avant la lettre (i.e. before the Lisbon Treaty), both in respect of its legal function and of the fact that it actually constituted (set up) the EU. The Treaty on Union sets out: the legal basis for the EU’s powers; its institutions; the relationship between those institutions and sovereign European member states; the core processes of EU governance; the fundamental objectives of the EU (its ‘mission’, defined in one place as that of “creating an ever closer union among the peoples of Europe”); and the rights of EU ‘citizens’. Because EU citizens is what we are, in law, as a result of Maastricht, whether we knew it or not, and whether we chose it or not.

You’d think, wouldn’t you, that an international treaty making the citizens of the UK also citizens of a proto-European super-state would be submitted to those UK citizens for their approval in a referendum? Well, it wasn’t; but it damn well should have been by rights. The trouble is ‘we the British people’ don’t have a constitutional right to have the final say on laws affecting our constitutional status and provisions because we don’t have a constitution: at least not a single codified document setting out the basic rules for how we are to be governed. Instead, we have the principle of ‘parliamentary sovereignty’.

It’s by reference to this principle that we were denied a referendum on Maastricht and on the Lisbon Treaty (the re-hashed EU Constitution), which consolidates the two founding documents of the EU – the Treaty on Union and the Treaty of Rome – into a single constitutional text while making significant revisions that ‘streamline’ the processes of EU governance and enable the scope of the Treaty’s provisions to be extended without requiring a new treaty. Under the doctrine of parliamentary sovereignty, the UK parliament is said to have the constitutional competence – the right and authority – to take all decisions regarding laws affecting all UK citizens. Therefore, according to this view, there was no real need to hold referendums on Maastricht and Lisbon: Parliament was the legitimate authority in the matter.

But the legitimacy of Parliament is seriously questionable if its elected representatives fail to carry out what they promised to voters: in its 2005 election manifesto, Labour promised a referendum on the EU Constitution but did not deliver it in government on the quite spurious basis that the Lisbon Treaty was not the same thing as the Constitution, and that Parliament was the legitimate forum in which this ‘new’ matter of Lisbon should be debated and resolved. Lisbon may well not be the Constitution but it is undeniably a constitution: saying it isn’t stretches semantics beyond all reasonable bounds. And if a government commanding the majority in parliament fails to keep its promise to consult the people on a matter of such fundamental constitutional importance, then its decision to go ahead with Lisbon regardless lacks any democratic legitimacy even if it can still be argued that it has constitutional validity: Parliament had the power to take us into Lisbon but not the right without asking us first.

So we’re living under the sovereignty of a parliament that has lost touch and broken faith with the consent of the people that is meant to be the democratic foundation and justification for its power. In fact, this divorce between parliamentary sovereignty and popular consent is a product of the fact that Parliament has become subservient to the power of the Executive. In reality, we live, as Jack Straw put it, in an ‘executive democracy’ not a parliamentary or constitutional democracy: the real power is vested in the government, and in almost all matters, Parliament has just become pretty much a rubber stamp for executive decisions, with MPs towing their respective party lines. So it was with Lisbon: the government of Gordon Brown decided it would take the UK into the Treaty, and once that decision had been made, there was no way sufficient Labour MPs were going to defy the authority of the PM and the Party to vote it down, even if they’d wanted to do so.

The problem, essentially, is that under the UK’s unwritten constitution, there is no separation between Parliament and the Executive. The Executive is determined by which party or parties can command a majority in Parliament; and the Executive sits in Parliament, controls its agenda and marshals ‘its’ MPs by means of the whipping system to ensure its laws are voted through. If the Executive decides it’s going to ignore the will of the people, so long as it commands a parliamentary majority, it can pretty much do whatever it wants unless the people rise up in revolt against it.

In other words, Parliament refers upwards to the Executive as the driving force and authority for its decisions, and does not sufficiently refer downwards to the people and consult with the people who are going to be affected by its Laws as to their views in the matter. This is what a ‘referendum’ means: a matter that is to be referred to the people. The other word for ‘referendum’, ‘plebiscite’, reflects this more explicitly, as it derives from the Latin ‘plebs’, meaning ‘common people’. So a referendum is an exercise in popular, rather than parliamentary, sovereignty: it’s a concession that, in this particular matter, the will of the people is pre-eminent. That’s why the UK parliament has been so reluctant to let us have UK-wide referendums on any issue, not just the EU, as it risks undermining the supremacy of Parliament: it risks creating a precedent for saying that it is the people who should be the ultimate power in the land (‘democracy’ meaning literally ‘people power’), and that Parliament’s power ought properly to be merely the expression of people power – the institutional means enabling the will of the people to take effect – and not an instance of power that takes it upon itself to take decisions on behalf of the people without heeding what the people actually want.

It could be argued that the 1975 referendum on the European Community and this year’s referendum on the voting system for UK-parliamentary elections do not radically concede the principle of popular sovereignty. The 1975 referendum asked whether people accepted the terms of the UK’s membership of the EEC as renegotiated by the then Labour government. So it was really asking voters to ratify something Parliament had already decided in principle. Similarly, the AV referendum this year offers a choice between only two possible voting systems that Parliament has decided to put to us, rather than being a genuine response to any sort of popular demand for AV, as there is none: yes, people want voting reform and, more fundamentally, they want radical reform of Parliament; but AV is the most minimal variety of electoral reform that Parliament could possibly have come up with, and it leaves the democratic deficiencies of Parliament as outlined above completely intact.

However, the demand for a referendum on the UK’s membership of the EU made by the People’s Pledge campaign is different. This is a cross-party campaign that asks people to commit to not voting for any parliamentary candidate who is not committed to supporting a binding referendum on the EU. The wording of the Pledge is as follows: “I will only vote at the next election for a candidate who publicly promises to support a binding referendum on our EU membership and to vote for it in the House of Commons”. This is a demand for Parliament to bow to the will of the people and let us have a referendum on a matter that Parliament thinks it has already resolved by virtue of its self-ascribed universal sovereignty.

In other words, if Parliament did give in to the popular demand for a referendum on the EU, it would be radically conceding a principle of popular sovereignty. And that’s not just because Parliament would have to accept that something it believed it had already decided could be reversed by popular demand, but because the very subject matter of the referendum is sovereignty itself: who governs us and by what authority. The sovereign Parliament decided the British people should be governed by the EU in many areas of law and policy; but if the people reverse this decision, that makes the will of the people, not Parliament, sovereign in fundamental matters about how we are governed.

So I’ve decided to sign up to the People’s Pledge online. There’s obviously a debate as to whether or not the issue of Britain’s withdrawal from the EU needs to be dealt with before we resolve the English Question. Those who think the EU issue takes priority argue that English self-determination means nothing if most of our laws continue to be made by Brussels: it would just be transferring the limited remaining powers of the UK parliament to an even lesser body. But I don’t think it makes sense to say one comes before the other. The situation is the same whether you’re talking about a referendum on the EU or a referendum on an English parliament: both involve extracting a fundamental concession to the principle of popular sovereignty on the part of the UK parliament.

In fact, eurosceptic but unionist supporters of a referendum on the UK’s EU membership may not realise the extent to which obtaining and winning such a referendum would undermine the standing and authority of the UK parliament whose sovereignty they would wish to uphold against Brussels. English nationalists should support such a referendum because it will ultimately further the cause of an English parliament, whichever way the people of the UK as a whole voted on the EU question. The UK parliament would have been humiliated into acknowledging that, on constitutional matters (those relating to the fundamental rules about how we are governed), the people’s will is sovereign. And once that genie is out of the bottle, then Parliament would eventually have to give in to the ever louder demands for a vote on English governance.

So we should demand a referendum on the EU as much to establish the general principle that it is we the people who should determine the manner in which we are governed as to wrest back the British-national sovereignty that Parliament first misappropriated to itself and then handed over to the EU.

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One Response

  1. I disagree with your assertion that:
    “The UK parliament has transferred sovereignty – our sovereignty: the people’s sovereignty – in so many areas to the EU”

    – The UK Parliament transfers its sovereignty to party donors and big business. The EU is the same. We are controlled by big business and the power of finance capital. Whether it be in Brussels or London, its irrelevant. Elections are meaningless. It is a Corporatocracy.

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