Vernon Bogdanor, ‘Beyond Brexit’, Towards a British Constitution

Perhaps an apology is needed for inflicting upon the public yet another book on Brexit. Someone has remarked that everything possible about Brexit has already been said, but it has not yet been said by everybody!

But my recently published book, Beyond Brexit, is not about the whys and wherefores of Brexit. It seeks instead to answer quite different and more fundamental questions. How did Britain’s short-lived European commitment, from 1973 to 2019 affect our constitution and system of government; and how will they be affected by Brexit.

The effects of Europe on our constitution have been momentous. Most obviously, it led to our first national referendum, in 1975, just two years after we joined the European Community, as the European Union then was. In that referendum, by contrast with that in 2016, the British decided by a two to one majority that they wanted to remain in Europe.

Before 1975, the referendum was widely seen as unconstitutional. Indeed, when in 1945, Winston Churchill suggested a referendum on continuation of the wartime coalition, Attlee retorted that the referendum was an instrument of dictators and quite unsuitable for Britain. The referendum, it was said, was contrary to the sovereignty of Parliament, the idea that Parliament is the supreme legislator. But, if Parliament is all-powerful, then, surely, it can call a referendum. What it cannot do is provide for a referendum which legally binds government or MPs. And in fact our two referendums on Europe – in 1975 and 2016 – were, from a legal point of view, purely advisory. But in both cases the government of the day said that it would accept the peoples’ verdict whatever it was.

The referendum was justified on the grounds that, in the 1970 election, the last before  Britain joined the European Community, all three parties favoured entry, just as in 2016, the three major parties were all for Remain. So a voter opposed to entry in 1970 had no way of indicating this through her vote.

But even had the party system been working more effectively, some issues are so fundamental that a parliamentary vote alone cannot yield legitimacy. In March 1975, the Leader of the Commons, Edward Short, said, `The issue continues to divide the country. The decision to go in has not been accepted. That is the essence of the case for having a referendum’. David Cameron could have said the same in 2016. Voters entrust MPs with legislative powers. But they do not give them authority to transfer those powers to another body such as the European Community. For that, Parliament needs specific authority and that requires a referendum.

The referendum of 1975 was a success in that the people accepted the advice of their leaders to remain in Europe. But in 2016 the people rejected the advice of their leaders. An academic colleague of mine at King’s College, London, said that the 2016 referendum was the most important constitutional event in Britain since the restoration of the monarchy in 1660. That was because it generated a conflict between the sovereignty of the people and the sovereignty of Parliament, since most MPs and peers are Remainers. That conflict has not yet been resolved. But it means that, for the first time in its history, Parliament is being asked to vote for something in which it does not believe. Entry into the European Community in 1973 meant acceptance of a system of law superior to that of Westminster. For European law trumped national law. That was incompatible with the sovereignty of Parliament according to which Parliament was supreme. In 1991, the House of Lords, acting in its judicial capacity, disapplied, for the first time in British history, part of an Act of Parliament since it was incompatible with European law.

Vernon Bogdanor is Professor of Government, King’s College, London. His book `Beyond Brexit: Towards a British Constitution’ was published earlier this year by Tauris. The rest of this editorial will be published at a later date.