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Muddling Through: Brexit, the unwritten Constitution, and the Limits of Political Authority

Denis Galligan, Professor of Socio-Legal Studies, Oxford
16 Jun 2017

Following the triggering of the Brexit process after the vote to leave the European Union last year, the notion of representative government implicit in parliamentary sovereignty has now become the accepted form of constitutional authority. It offers a practical resolution of the tension between two competing ideas: that the people should be in some sense in charge of their own affairs, and the need for good and effective government.

Denis Galligan, Oxford Professor of Socio-Legal Studies, explores the unfolding constitutional crisis in the wake of the EU Referendum and asks: What are the limits of parliamentary and constitutional authority?

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The relationship between the people and Parliament, rulers and ruled, has always been inherently unstable. It depends on opinion, on the opinion not just of the rulers and their supporters, but, as Hume noted as long ago as the eighteenth century, on the opinion of the people. And as opinion shifts and changes, the relationship between the two may need to adapt with it. As a practical principle of political life, the people are inclined to accept or acquiesce in the existing constitutional order, whatever its frustrations and imperfections.

 

The relationship between the people and Parliament, rulers and ruled, has always been inherently unstable

 

But loyalty has its limits and must compete with other expectations and inclinations – and it may be stretched beyond endurance. From the course of constitutional history, punctuated by episodes of restlessness, rebellion, and sometimes revolution, we are able to detect the signs of popular disaffection. And as history teaches, when such signs are plainly visible, the body politic may not be in good health and remedies may need to be prescribed, if worse is to be avoided. 

Constitutional crisis 2017

Turning to the current crisis of the Constitution of the UK, let us be clear about the issue that confronts us. By statutory enactment, Parliament provided for a referendum on whether or not to remain a member of the EU. The words are to the point: ‘there shall be a referendum’. Nothing is said about the status and significance of the referendum. The majority of the people voted to leave the EU. A majority of members of Parliament consider the public interest, the common good, is best served by remaining in the Union. Nevertheless, the majority considered they were bound by the referendum. Their reasons naturally vary, but the common idea seems to be that the people have expressed their will and Parliament should act accordingly.

This approach raises several issues:

i) The Act does not state that the referendum is binding on Parliament.

ii) Even if the Act did so state, the conventional principle is that Parliament cannot bind itself for the future

iii) Parliament's primary duty is to act in the public interest, the common good, the good of all. To accept the referendum as binding, despite its being against the public interest, in the opinion of a majority of members of Parliament, is contrary to Parliament's fundamental constitutional duty.

iv) The referendum has no place historically in the British Constitution. It has been used twice in recent years but without the controversy of the kind now dividing the nation. The reason is that the referendum has until now been seen as a successor to other mechanisms, such as petitions and addresses, by which the people could express their views, their grievances, their complaints. The current controversy centres on the new notion that the referendum is binding on Parliament.

v) Some politicians and commentators are now talking about the sovereignty of the people as having superseded the sovereignty of Parliament. This despite the decision of the Supreme Court in January 2017 restating the sovereignty of Parliament.

vi) Finally, there is the concern that, even conceding a place for referenda in the constitution, no consideration has been given to the conditions under which it should be appropriate, nor how to ensure the people are adequately educated about the issues and the consequences of voting one way or another.

The United Kingdom has all the advantages and disadvantages of not having an authoritative constitutional text. The advantages are plain: within a structure of embedded conventions, a certain flexibility; a capacity to adapt to change, to accommodate incremental adjustment; and hence a capacity to respond to changing ideas and expectations; in Humean terms, to adjust in step with opinion. The disadvantages are equally plain: no clear mechanism for change; too much uncertainty; no clear definition of the constitutional sphere; no clear separation of the constitutional and the political.

 

To accept the referendum as binding, despite its being against the public interest, is contrary to Parliament's fundamental constitutional duty

 

The current crisis illustrates the point. Since the mechanism for constitutional change is not clear, we are thrust into a zone of constitutional uncertainty. Has the referendum now entered the constitutional order as the final means for deciding matters of seminal importance? Do we now have a principle of popular sovereignty that trumps parliamentary authority? Or is the current situation exceptional, a once-only, not to be taken too seriously and of no long-term significance? Has the social consensus that has sustained the system for centuries been shattered, so that we are now a society split by deep and dangerous divisions?

If that is the case, it might be time for a written text as a way of bridging the divisions. Or will the British muddle through, as they have muddled through, with the status quo restored, once the excitement of Brexit has abated? To questions like these there is no answer, and we must be content to wait and see, although I expect the muddling through option, once again, will prove victorious.

 

Has the centuries-old social consensus been shattered, so that we are now a society split by deep and dangerous divisions?

 

Revisiting the relationship between the people and government

Such events as the British vote to quit the Union, together with other social movements across Europe, the United States, and elsewhere, display dissatisfaction with government, with inequality, with capitalism, with globalization, immigration, and so on. The signs of disaffection are plain; whether they amount to a seismic change in the social, economic, and political order of developed nations is not at all certain; whether such movements are accurately characterized as ‘populist’, is a matter of debate. If such paradigm shifts are occurring, constitutional consequences of a major kind will follow.

Let us not, however, speculate on the uncertainties of the future. Instead, I would like to return to the relationship between the people and government. It may be that, in light of current events, the relationship expressed in representative government is ripe for revisiting and possibly revising. It is, as noted before, a dynamic relationship that, historically, has shifted and changed with the ebb and flow of events. How it is defined at any time is contingent on opinion, and opinion is shaped by events. And since it relies on opinion, the relationship is inherently unstable. It is also one of inherent tension, since it depends on the cooperation and concurrence of two sets of actors – the people on one side, officials and advisers on the other – whose interests may be, or appear to be, in competition and conflict.

The relationship between rulers and ruled is the foundation of constitutional authority, and so to that notion we must now return.

The first point to note is that authority occurs within a social relationship: parent–child, teacher–pupil, police officer–citizen, and so on. Constitutional authority has the same form: it is constituted by a particular relationship between the people and the governors.

The second point to note is that, once we approach constitutional authority in this way, as a social relationship, then we may proceed to identify and examine the terms and conditions, the understandings and expectations, the conventions and customs, on which the relationship is based. We may ask, in other words, what are the terms and conditions upon which the people exercise self-restraint? Such enquiry requires that we focus on the meanings, understandings, and interpretations that people and officials attribute to their actions. It leads us directly to the meaning of ‘constitutionalism’ as experienced by members of society, as opposed to the prescriptions of constitutional theorists. 

 

We may ask, in other words, what are the terms and conditions upon which the people exercise self-restraint?

 

Thirdly, central to the social relationship is the expectation that those exercising authority justify themselves and their actions. Failure to justify undermines the basis of self-restraint.

Here I can do no more than set out the contours of the enquiry. It requires careful empirical research to uncover the implicit and unspoken terms of constitutional authority, and to judge whether it is in a state of upheaval, and if so why. For those interested in the social foundations of constitutional authority, there is much to do. For those intrigued by what is happening around us, such an analysis should be instructive.

I conclude by sketching three models of constitutional authority, which I find useful as a way of getting started on the enquiry. I call them: the ruler–ruled model, the self-rule model, and the keepers of the common good model. They are drawn from extensive empirical research of constitutional history, with particular reference to the United Kingdom.

Ruler–ruled model  When Hume was writing in the eighteenth century, he praised the British Constitution as near perfect. It provided effective government in which the people acquiesced. The three parts – king, peers, and commons – balanced each other to provide firm, stable, and measured government. This could be achieved only if government were left to those who knew how to govern. The people simply had to acquiesce and do what they were told.

This idea was often linked to that of an organic society in which all had their place and all knew their place; body imagery was often invoked: the very idea of the body politic by analogy to the human. The body politic was in good health when all parts were working well. It was up to government to make sure they did.

Self-rule model  Another theme running through Western constitutional thought, another model drawn from it, is that the people are, or ought to be, self-governing. What constitutes self-government is open to different interpretations, but essentially people should be in charge of their own affairs. This idea has its origins in Roman Law and the later republican tradition, with its emphasis on liberty and the idea that the free man or woman should not be under the domination of another. It is the source of ideas of democracy. The self-rule model is naturally in conflict with the ruler–ruled model, from which came the birth of representative government. The resolution reached is neither necessary nor timeless, and could easily be on different terms.

Keepers of the common good  The third model is not as easily described. It moves beyond the other two, while adopting aspects of both. Its guiding principle is good government, where that means respecting the rights, liberties, and expectations of the people, while pursuing the common good. While acknowledging the need for firm government, this model knows that power is dangerous and easily abused and corrupted; government must be kept under the steady gaze of the people.

On this model, the people accept that government and administration, especially in modern societies in all their complexity, require experience and expertise, and may best be left to others. The notion of self-rule in a pure form does not dominate. Yet the urge to have some control over their own affairs remains powerful; it has to be reinterpreted to and expressed in more diverse and less direct ways as a means to making sure government is for the common good, and hence the good of all. Mechanisms of scrutiny and accountability are of central importance, while vigilance on the part of the people is essential.

In reassessing the representative principle, for which the time seems to be ripe, in rebalancing the relationship between the people and government, it is tempting to conclude that the self-rule model is the way to proceed. More democracy, more power to the people, is the immediate and natural response. Such a battle cry has great appeal. But, the virtue of the other two models of constitutional authority should not be neglected, for as history has taught, they are essential to good and effective government, which, after all, is the point of a constitution.

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Denis Galligan is Professor of Socio-Legal Studies at the University of Oxford, and Director of Programmes of the Foundation for Law, Justice and Society.