The idea that Parliament should have control over Brexit is a strange perversion of our history and of common sense

Contrary to what you might have heard, the Royal Prerogative is not merely an archaic hangover from the feudal system. Most democratic countries accept this sort of arrangement. The people do not govern, or legislate, or interpret the law, but they are the ultimate source of the authority of those who do

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The Prime Minister’s pithy statement, “Brexit means Brexit”, appeared at first to have settled the matter. But since then, prominent and influential voices have cast doubt on both the substance and the form of the Government’s policy. Their broad argument is that Parliament or the law courts should if not overrule (though some have argued even that) then at least circumscribe and interpret the verdict of the referendum, which can only be advisory and not decisive.

The presumption, sometimes explicit, is that a referendum is illegitimate or at least inferior as an expression of political choice, and that it is contrary to our long constitutional history which has made Parliament sovereign. Hence, Parliament should not only make the final decision as to whether Brexit does mean Brexit, but that it should also dictate the policy and strategy of the government in negotiating with the European Union.

Evidently, this is not simply a matter of abstract constitutional theory. Its significance comes from the belief that most MPs deplore the referendum result and would box the Government into a corner in which it would only be able to negotiate a limited form of Brexit. Much therefore turns on the frequently expressed claim that Parliament (essentially the House of Commons) is sovereign.

The idea that Parliament is sovereign owes much to the “Whig” interpretation of our history which made its core theme conflict between Crown and parliament. The Victorian constitutional authority A V Dicey said Parliament can “make or unmake any law whatever” and its statutes cannot be overridden by any other authority. Parliamentary sovereignty clearly does not mean executive authority or judicial authority (since trial by Parliament was abolished): it means the supreme authority to make laws, “neither more nor less”, in Dicey’s words. It does not imply therefore that Parliament can or should direct every sphere of government.

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Nor does it mean that what in Britain is termed the Royal Prerogative – in this case the negotiation of international treaties – is merely an archaic feudal relic. Most democratic countries accept the idea of a “separation of powers” between executive, legislative and judicial institutions. This principle was most famously defined by the French philosopher Montesquieu in the 1740s. His idea, influenced by British practice at the time, later became the foundation of the United States constitution and influences the practices of most modern states.

British government has never conformed exactly to Montesquieu’s model, but broadly speaking, it does separate powers. The Crown governs, through ministers, but since the Glorious Revolution of 1688 it does not legislate. Parliament legislates, but since the fiasco of the Puritan Commonwealth – when the House of Commons claimed to be sovereign and it became high treason to deny its “supreme authority” – it does not govern: hence it cannot, for example, give orders to the civil service or the armed forces. The courts interpret and apply the law, but they do not create law.

The executive thus has its proper sphere: in a word, it governs, under the law. It is accountable for its actions, both to Parliament and to the public, but accountability implies independence: it does not take instructions on policy from parliament, but defends its policies and either wins or loses the support of Parliament and the electorate on the basis of what it has done and promises to do.

Does our history then support the view that ultimately Parliament is sovereign, and hence superior to the popular will, especially when expressed through the extra-parliamentary channel of an “advisory” referendum?

A weighty and often quoted view is that of the 18th-century Whig politician Edmund Burke, in a speech to his Bristol constituents, in which he denied that he was required to accept their instructions when acting as their MP. It was, he said, his duty to serve them but not to obey them if his conscience and judgement differed from theirs. This was partly inspired by his proper insistence that MPs were not simply representatives of sectional interests, but had to act in the national interest.

But we should not take Burke as an unconditional defender of the sovereignty of MPs. He accepted the power of the Crown as legitimate and necessary. He supported the claims of the American resisters against parliamentary sovereignty. He praised the 1688 “Glorious Revolution” as a popular act to protect the “fundamental, unquestionable laws and liberties” of the nation, which even parliament had no right to give away – “the House of Commons cannot renounce its share of authority”. What might he have thought of it overruling the expressed will of the people in order to “pool sovereignty” in EU institutions?

Direct popular participation in crucial political acts has been part of our history since time immemorial. Until the 20th century, not all could participate equally, but acceptance that popular consent was necessary to legitimate authority has always been a foundation of our governance.

In Anglo-Saxon times there was a “council of the English people”, and the 1008 law code was issued “on the decree of the English council”. The later medieval concept of “the community of the realm” meant not only the barons, bishops and knights who sat in parliaments, but merchants, craftsmen, yeomen, and in some circumstances everyone.

I am not referring to illegal riotous acts – of which there were many, including the 1381 Peasants’ Revolt and the Suffragettes – but to popular participation in a national political process, albeit often an improvised one. When Edward II (one of England’s worst kings) was deposed in 1327 it was with the support of what a chronicler called “the whole community of the realm”, and “a great multitude of people”, who attended sessions in Westminster Hall. The crowd was literally given a voice, shouting for Edward to be replaced.

It also had a voice at coronations, when it acclaimed new monarchs – a reminder that monarchy has always had an elective element, dependent on popular acceptance. Even though this became symbolic, symbols recall important truths: who could doubt today that the legitimacy of our monarchy derives from the will of the people – as it has done since the 1660 Restoration?

When the Glorious Revolution replaced James II with William of Orange in 1688, it was preceded by numerous county and town meetings of citizens, sometimes bearing arms, which forcefully expressed popular rejection of James. A special Convention Parliament was summoned, as it had been at the Restoration of Charles II, to legalise the necessary constitutional change.

Parliaments, whether specially summoned or not, were instrumental in some of these great events; but parliaments were acting to put the will of the nation into law, not claiming a separate or independent sovereignty. We no longer have to rely on popular tumult or armed meetings to express our will on fundamental political questions: we now have referendums. This is a new element in our constitution, whose implications have yet to be digested.

Does this mean that the people, not parliament, the Crown or the courts, are the true sovereign, the ultimate source of authority? I would say – as a historian, not a constitutional lawyer – that it does: the people do not govern, or legislate, or interpret the law, but they are the ultimate source of the authority of those who do.

The idea that parliament itself, in some hermetically sealed manner, holds ultimate sovereignty on the grounds of its superior wisdom is a strange perversion of our history and of common sense. But we do not have to go so far as to proclaim the sovereignty of the people, if we find that a step too far. The consent of the people is a more modest and familiar concept. Expressed in a variety of ways, this consent has always been regarded as necessary for legitimate government.

The June referendum showed that the majority of the people no longer consented to government within the European Union. It would be a foolhardy parliament or law court that ignored this fact.

Robert Tombs is Professor of History at St John’s College, Cambridge, author of ‘The English and Their History’, and a supporter of Vote Leave. This is an edited version of his article in ‘Triggering Article 50, Courts, Government and Parliament’ by David Abulafia, Jonathan Clark, Peter Crisp, David Howarth, Sheila Lawlor and Robert Tombs, published by Politeia

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