Should Parliamentary Sovereignty Trump Popular Sovereignty?

On June 23rd the UK referendum on membership in the European Union delivered a clear, if narrow, result: the country should leave. Much still remains open, but as far as that issue is concerned, the matter is decided. I’m sure that British voters had no view about which mechanism would transfer their decision into law; but they understood that something would. No one supposed that a clear result might be treated as a helpful hint to politicians, or as a preliminary comment in a national seminar on the constitution.

Today’s judgment in the High Court repudiates that understanding. (R (Miller) v Secretary of State for Exiting the European Union). Lord Thomas of Cymgiedd CJ, Sir Terence Etherton MR, and Lord Sales decided that the UK executive lacks any power to transmit the will of the people into law by triggering the notification procedure for exit that is outlined in the EU Treaty. The court holds that the absolute sovereignty of Parliament must be respected, and that such prerogative power as the executive has to act in international affairs, including  treaties, can never repeal rights in domestic law. So Parliament must still decide whether to leave the EU. The matter remains open.

The breadth of the doctrine is breathtaking. The court does not merely say that Parliament is not, in this case, strictly bound by the referendum result; it declares that any popular vote is of zero legal relevance until Parliament expressly chooses otherwise. It is not even legally persuasive: ‘a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question.’ [emphasis added]

If the Supreme Court confirms this decision, the entire national debate on the EU can begin over: in the House of Commons, in the (unelected) House of Lords, then possibly back again to the courts, or maybe even the electorate. And that is what the claimants want: delay and time for second thoughts and further lobbying–not on the ground that the referendum result was unclear or the procedure unfair, but on the ground that the question was wrongly decided.

I agree that the question was wrongly decided. I also think that referendums are a very poor instrument of ordinary governance. But when what is at stake is the boundary of a constitutional people, we have no better procedure than a referendum, and courts should use their powers to uphold, rather than undermine, the result. Those who regret the result (as I do) should spend less time trying to overturn or forestall it, and more time trying to rally opinion around one of the better options that it has left open. Lawyers shouldn’t feel sidelined: whatever happens there will be work for them.

Democracy is government by the people. But the definition of ‘the people’ is not a matter solely for Parliament. It is matter prior to parliamentary democracy, and the legitimacy of Parliament depends on settling it correctly. The people have a right to decide for themselves the most basic terms of their constitution, including the people who will empowered by that constitution. That is why it is for Scots to decide whether to remain in the UK—and not for the UK as a whole; and why it is for the British to decide whether to remain in the EU—and not for the other member states.

What we might call English Constitutional Theory has long distrusted popular sovereignty.  An influential line of thought running from Hobbes, through Blackstone and Bentham, to Dicey and Jennings, equates popular sovereignty with Parliamentary sovereignty. Even today, the High Court repeats with approval Dicey’s words : ‘The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament’. Of course, it is plausible to think that the ‘will of the people’ needs practical expression. But when we have—as Dicey did not—lawfully organized and fair referendum procedures, it is implausible that only an Act of Parliament can ever speak for the people.

The UK has a fluid, informal constitution, and when disputes about its basic ground rules reach our courts, they generally lie in a penumbral zone where, whatever judges pretend, their decisions not only have political consequences but are made, and can only be properly made, on grounds of political morality. There are no ‘purely legal’ decisions at this level.

Today’s decision sidelines an important principle of political morality. It is not inexorably driven to do so by law or by logic. The judgment depends on two propositions that remain as debatable after the decision as they were before: (1) that the UK’s notification to withdraw from the EU cannot be made conditional on anything, and (2) that the European Communities Act 1972 not only gives EU law direct effect in UK courts, but also makes it part of UK law. Since the parties all accepted (1), the court did not test it. On (2), the court rejected the government’s argument that rights of British citizens under EU law result from an interaction of domestic and European law, and do not rest in domestic law alone.  Legal philosophers have struggled with the general issue at stake in (2).  Compare:  if conflict-of-laws rules sometimes require English courts to give effect to French law, does that make French law part of domestic English law?  It is a delicate question.  The Court makes short shrift of it.  Oddly, given its enthusiasm for Dicey’s doctrine that Parliament is omnicompetent, and its insistence that it only addresses ‘purely legal’ questions, the court  declares  (2) wrong because it is unrealistic: ‘In a highly formalistic sense this may be accurate. But in our view it is a submission which is divorced from reality.’

I wish the court’s desire to shape the law with an eye to reality had gripped it in some more helpful way. Since the UK is a union of peoples, not just one people, the declaration that any referendum, on any matter at all, can only ever be advisory will not go down well in Scotland, or in Northern Ireland. Nor will the conclusion, which follows inexorably, that Westminster can by explicit legislation repeal the Scotland Act 2016, notwithstanding what ‘a decision of the people of Scotland voting in a referendum’ (s 63 A) might have to say about the matter.  Does the Act itself give such a referendum legal force?  If so, it only takes a simple majority, which might consist only of English MPs, to amend or repeal it.

Contrast the more sensitive, and sensible, approach of the Supreme Court of Canada when addressing the constitutional significance of a possible referendum result in favour of Québec independence:

The continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada.  This would amount to the assertion that other constitutionally recognized principles necessarily trump the clearly expressed democratic will of the people of Quebec.’ (Reference re Secession of Quebec, [1998] 2 S.C.R. 217)

The formulation is inexact, but the idea is sound. The idea that ‘other constitutionally recognized principles’ necessarily trump any clear expression of popular sovereignty is a danger to the continued existence and operation of any constitutional order. The Canadian Court knew that to endorse that idea could risk national calamity. By their judgment they changed, if only marginally, the basic ground rules of the Canadian legal system. It was a wise move.  Perhaps our Supreme Court will follow it?

Popular sovereignty is a moral ideal. Parliamentary sovereignty is an institutional device, helpful where it secures important values, but a hindrance when it does not.

 

What ‘Brexit’ Really Means–Explained

My part-time colleague, Bo Rothstein, argues for a second referendum on the United Kingdom’s membership in the European Union–if and when the government comes up with ‘a deal’.

Fair enough.  But is his second referendum supposed to be able to reverse the decision of the first one?  Strangely, Rothstein doesn’t tell us.   In light of his examples of referendums of which he disapproves, it is natural to think that he means not merely a second referendum on an independent issue (e.g. the UK’s membership of the European Economic Area–yes or no?) but a second referendum capable of undoing the first, that is, of leading to the UK remaining in the EU–the very option that was so clearly rejected in June.  No referendum result (or election result, or judicial decision) has absolute authority.  But does this one really have zero authority?  Is it liable to be annulled on the ground that it was wrongly settled?

I am not surprised that Rothstein is coy about all this, for offering any definite view would require at least a sketch of the conditions under which a government should comply with the result of a (legally) advisory plebiscite.  He gives us none.  Rothstein does not notice, let alone refute, Richard Wollheim’s old but important resolution of the so-called ‘paradox of voting‘, namely, the fact that one can consistently think that one ought to support X against Y, yet also think that, if the majority supports Y against X, then one should support that. (Within limits.)  Wollheim said there is a difference between our ‘direct’ and our ‘oblique’ policies, and that it is  reasonable to have different policies about what we should ‘directly’ favour (were it up to us alone) and what we should ‘obliquely’ favour when called on to consider which policies should settle differences in what people ‘directly’ favour. So it does not follow from the fact that there was ample reason for me to vote Remain that, after a clear majority voted Leave, I should now insist on discounting their advice, relying instead on the grounds that justified my own initial vote.  The actual, positive, fact of a majority vote matters, and before we decide to ignore it, we need a better reason than that the majority was wrong to vote that way.

Wollheim’s labels never caught on, but his idea did, and it was put to work by writers like HLA Hart, John Rawls, Joseph Raz, John Finnis, Jeremy Waldron, me, and lots of others.  Nowadays we talk about the authority of ‘content-independent’ reasons, or of procedures. I’m not sure that ‘content-independent’ is any catchier than ‘oblique’, but it is the thing we need to consider when we weigh the moral authority of a referendum result, or an election result, or a court decision.  We don’t hear about this from Rothstein, who never tells us when he thinks it is right (if ever?) to give weight to content-independent considerations.  Of course, in a short journalistic piece one doesn’t expect a detailed argument.  But not even a hint?   Not a gesture?  The silence suggests that he thinks positive facts  have no authority at all to set against what is (in ‘truth’) right and proper.

Like most sensible people, he sees that the referendum result is a disaster for the UK–especially for those of us who teach in its universities; but for many others as well, including many who were duped into voting Leave.  But a second referendum?  What about best three out of five? And why not the same for general elections: the law of large numbers may help iron out the wrinkles caused by deliberate deception, voter ignorance, blindness to expertise, and so on. No MP should be elected without winning, say, 3 out of 5 elections.  Or 5 of 7.   There is an internet; it could be done.  But we will need to settle on the number of elections (or referendums) that need to be won in order to produce a settlement.  People will disagree about that, too.  Should we  hold a referendum on that question?  Or ask the philosophers to decide?

Rothstein also says ‘The slogan “Brexit means Brexit” is … meaningless because no one knows what a Brexit alternative will look like.’  That is just false.  I agree that we do not know what the feasible alternatives will be.  I know that Theresa May’s ‘Brexit means Brexit’ was a silly slogan to buy peace among warring factions of her Conservative Party.  But none of that comes close to showing that ‘Brexit means Brexit’ is meaningless.  For starters, everything is what it is and not another thing, so the sentence, if  uninformative, is meaningful.   Taken literally, it is also (trivially) true.  Of course, everyone also knows that it was not intended literally.  It was intended to tell us not to get our hopes up that Brexit will prove to be something other than what it said on the tin.  And what did it say on the tin?  Since so many now claim to be mystified by that, I am going to tell you, for I know what ‘Brexit’ means.

‘Brexit’ means a BRitish EXIT from the European Union. And that means that those who favoured Brexit wanted the United Kingdom to cease being a member state of the EU. May’s slogan assures her colleagues that that will eventually happen. (‘Eventually’ is a very big problem: I may come back to that another time.)

Now, member-statehood in the EU is fairly crisp, well-defined concept. There are no hard cases of EU membership; it is even pretty easy to find out which states are in and which ones are out.  Admittedly, Leave voters may not have known what they wanted instead of EU membership. But that is a different question, and it was not, as far as I recall, on the ballot paper. What’s more, there is nothing suspect about not wanting X while having no idea of what one would want if not X. People can rationally leave destructive marriages or jobs without settling what they might do next or instead.  I think that those who voted Leave were tragically and terribly mistaken. I even think that many of those Leavers who were literate were culpably mistaken, as they  refused to bear what John Rawls called ‘burdens of judgment.’ They negligently failed to inform themselves about highly pertinent, non-controversial, matters of fact; they refused to confront evidence that ran contrary to their prejudices.  Be that as it may, to suggest that neither Leave voters nor anyone else knows what Brexit means is plain dishonest. For a serious academic to repeat that tired, journalistic lie is close to professional malpractice.

Finally, Rothstein–like most other commentators–says nothing at all about one real, politically serious, ambiguity in the referendum result.  It isn’t helpful to talk about what ‘Britain’ decided, unless that is a casual way of talking about what the member state, the United Kingdom, decided.  That is the relevant entity as far as the referendum, and the EU treaties, are concerned.  And don’t say that ‘Britain means the United Kingdom’, as that is worse than ‘Brexit means Brexit’, inasmuch as the former is false and the latter is at least true.  Most of the Northern Irish voted Remain, as did most Scots, whose relation to ‘Britishness’ is more complex than the English imagine.  The referendum decided that the United Kingdom should leave the European Union. So that means that all of Great Britain and Northern Ireland will probably be given what only England and Wales voted for.  About that, there is a reasonable complaint to be made.  Admittedly, in the eyes of most English lawyers, Scotland’s and Northern Ireland’s rejection of Brexit is a detail of no constitutional significance, or no more constitutional significance than London’s.  But the opinions of English lawyers are not as important to Scottish or Irish politics as the English suppose them to be.

As for Brexit, the Scots and Irish, like the English, understood perfectly well what was being asked in the referendum.  They knew that ‘Brexit means Brexit.‘  That is why they opposed it.

The UK government’s policies, in style and substance

We have been absolutely clear: it is right that we ring fence national security and investigatory powers, even if many oppose us on an industrial scale, depriving as they do hard-working families of choice in striving for British values in a high wage, low-welfare economy, where never again need anything but English votes stand in the way of a truly seven-day NHS, an end to failing schools, and a reformed Europe. Also, we love Scotland.

Wednesday’s Child: My job description grows again

Every year, my job description gets longer. Research and teaching, obviously, and a share of university administration ancillary to that. (For instance, preparing the Law faculty’s REF submission and, more dangerously, chairing my college’s Coffee Committee [OfCoff!].

For the professoriate, these things have always come with the territory. Now, however, I am also drafted as a delegate authority to assist the government in implementing its political agenda. The UK’s self-destructive policies on migration, including the admission of foreign students, are to be monitored by people like me. I have a duty to report how often I lay eyes on my visa students. (What if Oxford students are not really having panic attacks in the library but are actually off in Isis training camps?) I also have a ‘prevent’ duty to make sure they aren’t being sucked into terrorism. (What if they come to believe John Locke’s claim that one may make a violent ‘appeal to heaven’ whenever the rulers try to govern without consent?)

My own view—I wish the Vice Chancellor would endorse it—is that these new duties must not only be ‘balanced against’ my duty to support academic freedom and my Public Sector Equality Duty to advance the status of protected groups—they must be subject to them.  Academic freedom and social equality should be side-constraints within which any ‘prevent’ duty or duty to monitor migration is exercised. Otherwise, the essential bond of trust between teacher and student will be ruptured, and the status of our universities will be undermined.

Consider this. If I do not see a postgraduate student at least three times in eight weeks, I need to report that to the administration.   If I have concerns about why I have not seen her, I need to report those too.  If I fear a student is being ‘radicalised’ I also need to report that. How will I know? The University has a duty to train me: ‘We would expect appropriate members of staff to have an understanding of the factors that make people support terrorist ideologies or engage in terrorist-related activity.’ Of course, the University can’t know what ‘factors’ cause support for ‘terrorist ideologies’ until it knows which ideologies are actually ‘terrorist’. No worries— ‘BIS offers free training for higher and further education staff through its network of regional higher and further education Prevent co-ordinators. ‘ I am not making this up.

Today, I learn that the government is pressing ahead with legislation to ensure that the security services have access to a year’s worth of our online data, including a complete list of every website you accessed. (If you haven’t done so, download Tor now, and browse with nothing else until this legislation is repealed or, if you are in Scotland, until independence frees you from still more English insanity.) The availability of this information will feed into the duty to monitor migration and prevent terrorism.

It isn’t hard to see where this could lead.  I’ve only seen a visa postgraduate twice in eight weeks? Her email says she is away conducting research in Washington. But we can check to see if she has accessed our servers, and from where, and what she is searching for.  We have a duty to keep that data.   A student used to favour power-sharing in Northern Ireland but now jokes that the DUP needs a whiff of gelignite?  I can alert the university to check out his Facebook and Twitter feeds.  Indeed, I must. The statutory guidance says:

‘Radicalised students can also act as a focal point for further radicalisation through personal contact with fellow students and through their social media activity. … Changes in behaviour and outlook may be visible to university staff. Much of this guidance therefore addresses the need for RHEBs to have the necessary staff training, IT policies and student welfare programmes to recognise these signs and respond appropriately.’

It is clear that this government cares little about academic freedom, civil liberties, or social equality. More surprisingly, they seem to care little about the competitive position of our leading universities. (Our opposite numbers at Yale or Harvard are not burdened by any of this–nor by REF or TEF.)   So where are our senior administrators on the issue?  Where is UUK? Where is the professoriate of the ‘elite’ Russell Group of British universities?  I guess they are all off at free BIS training sessions on how to recognize and prevent radicalization among  students.  Or perhaps at job interviews at U.S. universities.