The current debate over the UK’s withdrawal from the EU is toxic, with mutually exclusive stances taken, with each side ascribing bad faith to the other. Within the parliamentary system, each side is using powers that they have at their disposal, but for novel purposes.
Those opposed to a ‘no deal’ Brexit have sought to mobilise parliamentary majorities for Parliament to ‘take back control’. To take back control, one has to have had it in the first place. Insofar as it is a case of taking control of the parliamentary timetable, then there is a case for arguing that it is Parliament taking back control. The government’s power to determine business in the Commons derives from the Balfour reforms of 1902, though there were also significant changes in the late 19th Century. Insofar as it is a case of trying to wrest control of policy making from government, as with the European Withdrawal Act 2019, there is no taking back of control – there was no control in the first place, as Parliament has always been a reactive body, capable of denying the Crown’s requests for supply and legislation, and possibly amending the latter, but the onus for policy making has always rested with the Crown.
On the other side of the debate, the Government has had recourse to prorogation. Prorogation is a prerogative power and is employed to end a session in preparation for the next. The Queen grants prorogation on the advice of the Privy Council, which is what has happened on this occasion. Usually, the gap between Parliament being prorogued and the Queen’s Speech to open the new session is a matter of days (prorogued one week, Queen’s Speech the next). Here, prorogation coincides, or coincides roughly, with the usual recess between a September sitting and both Houses resuming in early October. The difference is that no parliamentary business can be transacted once Parliament is prorogued. If it was a recess, committees could meet. The timing of the recess could also be changed. Prorogation is a matter for government. Recess dates have to be agreed by the House. The government is thus open to the accusation that it is preventing Parliament sitting and a majority being mobilised to enact legislation that would have the effect of preventing leaving the EU without a deal.
There appears to be a majority in the Commons against a no-deal Brexit, but not necessarily a majority for a specific alternative to no deal. The Government’s Withdrawal Agreement was rejected. The Government has not as yet persuaded the EU to agree to something else, not least getting rid of the Northern Irish backstop.
My purpose here is to seek to make sense of why we are where we are. It is the product of a clash between two concepts of democracy. With direct democracy, the people determine policy for themselves. In the Greek polis, or in American town hall gatherings, citizens gathered to debate and resolve policy. Today, the principal means of enabling people to determine a policy directly is through a referendum. Switzerland is the world leader in holding referendums. Some other nations hold them and the number in the Western world is on the rise. Previously unknown to the British constitution, we have held twelve since 1973, three of them on a UK-wide basis and the rest in different parts of the UK.
The principal form of democracy employed in the UK and other Western democracies is that of representative democracy. The people choose those who they wish to take decisions on their behalf. They elect them and hold them to account through subsequent elections. Accountability is at the heart of the political system. Parties seek election on a particular platform, the party with a majority of seats forms a government and seeks to implements its programme. The doctrine of collective responsibility ensures there is one entity that faces electors at the next election. A general election, in Karl Popper’s words, is ‘judgment day’.
The explanation for the current apparently irreconcilable situation in which the nation finds itself is the clash between direct and representative democracy. Parliament legislated for an in/out referendum on EU membership. There was a majority for leave. The problem with a referendum is that it is left to Government and Parliament to implement the outcome. Electors cannot do that and there is no accountability for the result. Electors cannot hold themselves accountable for the outcome of a referendum. It is also left to Government and Parliament to interpret why electors voted as they did. Voting to leave tells one nothing about what sort of exit is preferred. Did most favour a ‘hard’ or ‘soft’ Brexit? That assumes electors knew the difference and had a view.
After the referendum, Prime Minister David Cameron resigned and was succeeded by Theresa May. She sought and achieved the agreement of the House of Commons, under the Fixed-term Parliaments Act, for an early general election. The 2017 election did not produce a strong Conservative majority. Since the election, the government’s majority has dwindled to one. Electors voted to leave the EU, but the following year elected a House of Commons that was clearly divided on how to give effect, if at all, to the outcome of the referendum.
The current situation shows what happens when two forms of democracy collide.