Parliamentary sovereignty & the Maiden Tribute

Parliamentary Sovereignty & the Maiden Tribute

 

The rules of British political life are unwritten and obscure. Unlike the USA, Britain has only an “unwritten” constitution and much current practice is based on pre-democratic foundations. Since the 17th century political conflict has revolved around who controls parliament rather than how parliament operates,  and the outcomes of the 17th conflicts revolved around transferring monarchical power to parliament rather than attempting the separation of powers which underpinned the  US constitution when it was drafted in the late 18th century. British political conflicts never involved root and branch constitutional renewal. As critics in the 1980s noted, Britain avoided constitutional debate, and there has never been a constitutional convention across the UK, unlike Scotland before devolution. The outcome has been a Westminster system which is  highly centralised, contains many archaic practices, notably the House of Lords, and is not based on explicit and clearly understood principles.

 

The key issue has long been the central issue of sovereignty, which as the word suggest is based on the power of an individual, the sovereign – initially the monarch. It is not an accident that the oldest text of modern political discourse, Machiavelli’s The Prince derives its model from monarchical regimes (1), though Machiavelli operated during the Florentine republic. Sovereign power is always is some respect monarchical. During the Soviet Era, Stalin was frequently described as a “Red Tsar”. Britain has not been an autocracy since the execution of Charles I resolved that power passed to parliament, but in Britain though the system has for several centuries abandoned the monarchy it has never lost its monarchical trappings. Parliament retains the Queen’s speech at the state opening, for example, though everyone knows the Queen does not write it.

 

The political system emerged after the Glorious Revolution of 1688 as flexible enough to adapt to new circumstances, and control by Westminster satisfied the major interests in a rapidly changing society. However by the late twentieth century an increasingly diverse society found Westminster’s total dominance unsatisfactory with many of the decisions unrepresentative. This forced the development, ad hoc, of referenda the first of which took place in 1975 over the EU. The advisory nature of that referendum did not alter the constitution at that time though the system was blatantly producing unrepresentative governments, and continued to do so even when changes were inevitable.

 

As Bernard Donoughue has written (2), despite being in the Number 10 policy unit, and  had lectured on “the steady decline in electoral support for both of Britain’s main parties” he did not  grasp how changes in society meant “we would move into both a more multi-party system and, from 1979 one in which a single party would dominate government with a minority of the popular vote and the support of barely a third of the electorate”. He was not alone in being suprised, and no politician has ever seen the need for root and branch constitutional reform. While it is a continuing puzzle that Thatcherism did not led to electoral reform, it is not suprising that as governments continued to fail to win majorities among the voters the pressure for direct decision making by the undefined concept of ‘The People’ grew in strength. The key immediate point is the lack of effective debate about the constitutional effects of ad hoc popular votes.

 

The use of referedum in recent years has been driven by the attempt to produce a more representative democracy than a sovereign parliament was providing . The EU referendum of 2016 massively increased confusion about a system which earlier had been called by some  “Elected dictatorship”. However the system by 2017 was no longer able to command even passive consent. Sadly  the use of referenda failed to provide a stable political system, as the Brexit controversy indicates. The most extensive referendum yet did not produce a workable outcome.

 

By January 11th 2018, when Nigel Farage declared his sympathy for another EU referendum, the bizarre situation developed where even the acknowledged victor in the 2016 referendum and main actor in the Brexit scenario no longer believed the referendum he had long campaigned for had delivered a stable outcome. The political system in Britain is in profound crisis which demands intensive scrutiny. What drove recent changes and why has the referendum system come to produce such unsatisfactory results?

 

Referendums, sovereignty and democratic deficit.

 

One reason for the turn to direct democracy via referenda was  a widespread impression by the 1970s, particularly in Scotland but across the UK that parliament was out of touch with public opinion on issues of independence. This lead to ad hoc decisions, initially over the EU. There were increasing pressures to change the form of government, leading to the devolution of powers to national assemblies and the creation of Elected Mayors, all by referendums, but without a systematic agreement on how direct democracy fitted with representative democracy. While the initial EU referendum of 1975 was advisory,  David Cameron decreed binding votes in Scotland and on the EU.. The implications were badly thought through and unlike the 1975 referendum which produced a two thirds majority in favour of the EU  and four decades of relative stability, there has been no settling of the issues as Farage, alone among major politicians, has recognised.

 

The root of the failure to establish clear ground rules lay in the long held assumption that the unwritten constitution is the workable product of brilliant improvisation. The British never seem to have believed there was a need to work from first principles, and for the 2016 EU referendum many assumed that parliament has been removed from the process by referenda, and that a single vote makes parliament irrelevant, or simply a rubber stamp- as Brexiteers argued through 2017 seeking to close the debate on a further referendum as they had – narrowly – won in 2016, until Farage broke ranks.

 

The absence of debate on constitutional issues has prevented discussion on how referenda and representative democracy can mesh. This happens in Switzerland and some US states, but they do not do so easily. While Referendums are new for the British, parliamentary sovereignty remains in place. This decrees that no vote even if a popular one is ever final. Political decisions are reversable, and politics even when popular votes are involved is capable of taking the U turns that politicians dread. This is not however the current political view at Westminster, based on a weak understanding of the history and legal basis of the constitution.

 

Prime Minister Theresa May for example took the view that Brexit decisions once taken are irreversible. She wrote in the Daily Telegraph  that  “We are leaving the European Union on 29th March 2019”, referring to a date set  after the parliamentary vote to trigger Article 50 of the Lisbon Treaty by the letter sent to the EU in March 2017 notifying the decision to leave. This led to to an attempt by the Conservative government to put the date into law, assuming that this would mean that the decision was irrevocable. The government was then forced into retreating.

 

The Guardian (21st December 2017) reported that “The government has accepted a compromise over its plans to Brexit date into law”, as the attempt to set a fixed date did not survive parliamentary debate. The face saving compromised negotiated by Oliver Letwin MP, in the words of  the Guardian “tweaked the government’s own amendment, leaving the Brexit date (29th March 2019) in the legislation, but giving MPs the power to push it back if the EU27 agree”. Nevertheless the Conservative web site in mid January 2017 claimed as one of three major achievements that financial commitments  would be honoured “So from March 29th 2019 when we formally leave the EU, we can spend that money on our NHS and public services”. (3) The Party and thus the government has never accepted that its decision to write to the EU on March 29th 2019 was not a binding commitment, posing a continuing failure to grasp the constitution and, worrying, suggests that law is not accepted by the  Conservative Party.

 

Nor does it understand the implications of the Lisbon Treaty.  The rigid assumption that the decision

to leave EU was irreversible and embodied in the triggering of Article 50 of the Lisbon Treaty had already led to humiliating reversal in the House of Lords in November. The Conservatives had assumed that Article 50 cannot be repealed and thus the decision to leave the EU had been made, removing any role for parliament actioning Article 50. This produced a parliamentary farce.

 

The former diplomat and lawyer Lord Kerr, (John Olav Kerr of Kinlochard, a crossbench peer and former member of the European Commission that drafted the Lisbon Treaty) was widely reported in  the liberal media disagreeing (4). Kerr had given an interview on the Radio 4  Today programme where he reportedly said “At any stage we can change our minds…. The Brexiteers give the impression that because of the way Article 50 is written  having sent in a letter on 29th March 2017 we must leave automatically on 29th March 2019 at the latest. That is not true. It is misleading to suggest that a decision that we are taking autonomously in this country about the timing of our departure, we are required to take by a provision of EU treaty laws”.

 

Lord Kerr’s view had weight because as he said to the BBC “I’m not a politician. I’m just the guy who wrote the Treaty telling you what the Treaty means”. Lord Kerr is an expert in international law, and his statement to the BBC that “These decisions are taken entirely in this country, they have nothing to do with the Treaty, as far as the Treaty is concerned there are lots of options…” had to be taken seriously as a view of European Law.  He is essentially arguing that the principle of parliamentary sovereignty applies. And if the decisions are taken in Westminster they can be reversed in Westminster, though my view is that  approval of a final decision by referendum would be needed.

 

According to the Independent, (9th November 2017) “pressure has been building on the Government to publish legal advice it has received, that is believed to state that Parliament can stop Brexit. The country’s top legal experts are said to have told the Prime Minister that leaving the EU could be halted if MPs judge that a change of mind is in the national interest”. Theresa May had been questioned by journalists on whether this legal advice had allowed the decision on Article 50 to be revoked, but had given no clear answer.

 

Kerr’s intervention removed any doubt, except in government circles. Kerr’s views were raised in the House of Lords, when his views were put to Lord Callanan (Minister of State  in the Department for exiting the European Union) the following Monday. Hansard shows the following:

 

House of Lords 13 11 17 Col 1845

Lord Ridley (Con) “Further to what my noble friend said about fixing the date of withdrawal… can he confirm that the judgement of the Supreme Court in the case brought by Gina Miller confirms in precise terms that article 50 is irreversible, in contrast to what the noble lord, Lord Kerr, has said?”

 

Lord Callanan: “I can confirm that. It is also stated by the European Commission that Article 50, once invoked, is irrevocable unless there is political agreement on it”.

 

Lord Elystan Morgan (Cross Bench)

“My Lords, does the minister agree that the notice given in March this year in relation to Article 50 was not a notice of withdrawal but a notice of intention to withdraw? Does he appreciate that our distinguished colleague, the noble Lord, Lord Kerr, and the vast mass of legal authority, are of the opinion, therefore, that such a notice can be withdrawn unilaterally….?

 

Lord Callanan, (Con)

“My Lords, no, I will not confirm that, because it has been stated by  legal opinion on this side of the water and in the EU that Article 50 is not revocable. It all flies in the face of the results of the referendum…” And Lord Callanan went on to discuss the referendum without understanding that this was governed by the principle of parliamentary sovereignty. Any law can be reversed by parliament unless developments outside parliament have overtaken the decision and the law is irrelevant (a treaty with a country that no longer exists for example).

 

Lord Callanan then had to  return  to the Lords a week later to admit he was wrong. As Hansard records:  House of Lords 20 11 17  –   2.42 PM Announcement:

 

Lord Callanan (Con)

“Last Monday …. I responded to a question from my noble friend Lord Ridley regarding the Supreme Court’s view on the revocability of Article 50. My response to my noble friend was incorrect (emphasis TF)… I am grateful to the noble Baroness, Lady Hayter, who highlighted my mistake…..I undertook to check the record… and make it clear that the Supreme Court did not opine on the revocability of Article 50…

“…to reiterate… the Supreme Court proceeded in the Miller case on the basis that Article 50 would not be revoked but did not rule on the legal position regarding its revocability. It was, and remains, the government’s position that our notification of Article 50 will not be withdrawn…..”

 

This statement avoided making a direct comment on whether the statement made by Lord Kerr was correct. But Callanan had specifically stated that Article 50 was not revocable, and Kerr is right. The revocability of Article 50  is of fundamental political and constitutional importance going beyond the immediate issue of how to leave the EU. It is particularly worrying that the Conservative Party have not accepted that the notification can be withdrawn, evading the issue even at Prime Ministerial level, and remain committed to March 29th as a rigid leaving date without accepting that the Commons voted for extending the date if agreed with the EU. The Party believes that there is a fixed situation which has never been the case. Parliament can always change its mind.

 

It is a fundamental principle of the (Unwritten) British constitution that any law can be reversed. The rules appear to have been changed by the 2016 Referendum to require this issue – and possibly others – to be decided by Referendum, but this remains obscure as the European Union Referendum Act, which recieved the Royal Assent on 17th December 2015 was poorly drafted and the parliamentary debate was scandalously unable to clarify issues of procedural importance. However in principle, as this was an Act of Parliament,  both the referendum and its consequences are subject to the unwritten constitutional rules, thus parliamentary votes on EU matters can be reversed. The implications of this principle need to be teased out in the unavoidable situation of a referendum driven politics.

 

 Lessons from history on the fundamentals of the constitution.

 

The bedrock principle is that Parliament is sovereign and can change its mind. This lead from political developments at the end of the Middle Ages  when the  monarch came to consult parliament, allowing  parliament to share the powers of the sovereign. This was pre-eminently the case with Henry VIII who even though an autocrat required his Chief Minister Thomas Cromwell to have his protestant reformation approved by parliament. Henry VIII’s break from Rome required the formal consent of the representatives of  a still overwhelmingly Catholic population – protestant ideology had little appeal even for the King – so gaining the  consent of the population via parliament was a political not a democratic move, aimed to limit opposition from followers of the Old Religion. However the law of unintended consequences then operated.

 

The Henrican Reformation contributed to the development of the formula which became known as the Crown in Parliament. Under this doctrine,  parliament had to approve decisions of the Crown,  and it became clear that sovereignty no longer was exclusively in the hands of the monarch. But  by the end of the Tudor  period the situation had become unstable by creating two power centres – the Court and Parliament. The Catesby conspiracy – the Gunpowder Plot – dramatised political reality by attempting to wipe out King and Parliament in one fell swoop, destroying the two driving forces of the Reformation and starting a Catholic coup, but its failure did not lead to a more harmonious relationship of the two power centres. The following years showed internal conflict between Crown and Parliament become savage, Charles 1 clearly aiming to return to control by absolute monarchy and the removal of parliament. The result that the English Civil Wars – and then the Glorious Revolution of 1688 – resolved by armed force that the balance of power lay with parliament. The settlement has never been questioned.

 

Parliament makes the major decisions, and these decisions are revokable. Statute Laws have certainly been revocable by parliament since the Reformation. For example, the criminalisation of homosexuality as a capital offence was made by the Henrican legislation of 1533, but the capital punishment element was removed in the Victorian period and the criminalisaution of male homosexuality as such revoked by the famous 1967 Law following the Wolfenden report. The pace  intensified in the early nineteenth century as the changes of the industrial revolution demanded laws changed to match the demands of a rapidly changing society. The changes to existing law made after the Napoleonic wars were so many and fundamental that the Oxford History of England volume  (5) dealing with the period is called The Age of Reform (1815- 1870) though laws had been changed before 1815 and after 1870 and continue to be changed. Indeed Brexit itself is an attempt to repeal the laws that took Britain into the EU. It is not the case that Article 50 is not revocable, and the attempt to put the leaving date into laws was farcical.  As far as British politics are concerned,the principle that parliament can revoke laws has never been in question, and to make sense constitutionally must transfer to referenda – which are agreed by statute law.

 

Both international and European laws have now been incorporated into English law by parliament – and Brexit aims to remove the links. This is the heart of the Brexit project, and at the heart of the disputes over how this is proceeding is the constitutional issue of whether the role of parliament has been altered by Referenda. This issue raises other questions about the democratic deficit and whether referenda themselves are revokable. Almost certainly they can and no objection has ever been raised in principle to a further referendum, but as both Houses of Parliament have voted against a further referendum on Brexit the situation raises the question of extra parliamentary politics. If the People Had Decided on Brexit in 2016, the people now being divided how can the conflict within the population be resolved to ensure that the processes do not damage confidence in democracy?

In this context an increasingly pressing question is whether government can be compelled to abolish a law by external pressure rather than party politics, Labour has voted for Article 50 to be invoked and has aligned with the Conservatives in making no admission that this can be revoked. Reform of legislation is usually a feature of party politics in the Houses of Parliament. Even the Conservative Party embraced ‘Reform to Conserve’ under Sir Robert Peel.  But sometimes the impetus has came from outside parliament, as with the Repeal of the Corn Laws. And occasionally it was through a movement with a social message, notably Votes for Women, working over a long period as was the case with the Anti Corn Law movement. The Chartist Movement which worked in the same period as the Anti Corn Law Movement failed to secure its six point charter but five of the points have been made law since its demise. MPs are reluctant to admit that an extra parliamentary movement has compelled it to change the law, but there are historical cases which show that this has happened, without affecting parliamentary sovereignty as such. A telling example, which became obscure almost as soon as it happened as the politicians of the time wanted to forget it, was the campaign to pass the Criminal Law Amendment Act of 1885.

 

The Maiden Tribute of Modern Babylon 1885

 

History books do not record many examples of parliament coming to repeal existing legislation because of a campaign which forces a complete volte face in policy in summary order, and fewer by an alliance of anti-establishment groups (6). One example is the Maiden Tribute campaign of 1885 run by the Pall Mall Gazette, whose pioneering editor W T Stead  used public  pressure, applied to parliamentarians, to force them to change entrenched positions. This was only achieved by producing a public outcry so great that politicians feared for their positions if they ignored public opinion. National politicians concluded in the summer of 1885 this would happen if they did not reverse their decisons on sexual legislation and produce a new statute- the Criminal Law Amendment Act of 1885, a law  which aimed to protect women and young girls from sexual exploitation.

 

The events which led to the Act had their roots in a long run campaign by moral puritans and child protection activists to defend girls and young women from sexual exploitation. This was the first campaign for the new Society for the Prevention of Cruelty to Children which joined the existing Moral Purity lobby to campaign for a new law to protect young females from sexual abuse.

 

A key objective  was an attempt to change  the age of consent, which was 13 in the later Victorian period. The legal limit for sexual activity for girls had been 12 till 1861, despite campaigners arguing, correctly, that with the age of puberty being on average later girls could be forced into sexual activity before they were mature. From 1861 to 1880, political pressure to raise the age to 16 failed despite a concession, passed in 1875 by Disraeli’s Conservatives, raising the age of consent to 13. The Tories then lost interest in further changes. Prostitution in the UK continued to involve immature girls, with the moral puritans demonstrating that girls were detained against their will in brothels in the UK and the continent – but  politicians ignored  the evidence. Despite Gladstone’s evangelical views even Liberal Party MPs resisted change.

 

Gladstone’s Liberal victory in 1880 did offer possibilities for reform as the new government accepted substantial abuse existed, and Gladstone’s cabinet used the House of Lords  to set up a Select Committee. This reported on 10th July 1882 making reccomendations including the key proposal to raise the age of consent to 16. The Liberals had to start a Bill in the Lords as the Commons remained hostile. The next three years would show that the Lords were lukewarm but prepared to support their own Select Committee, but the Commons was opposed  and opposition was shared by both Conservative and Liberal MPs.

 

A first bill passed the Lords in the spring of 1883, but fierce criticism from Conservative peers  led the Liberals to revise it to produce a milder measure in 1884 aiming at a consensus. This was sent to the Commons where it failed to get any debate. MPs would not support a measure which they feared would risk their sons being blackmailed by  girls exploiting an age limit beyond 13. However rising public concern particularly over child abuse meant ministers could not abandon the issue. A third bill was then brought back to the Lords with the age lowered to 15 as a concession. The Lords had no problem passing this, but the MPs were a different matter.

The bill reached second reading on April 22nd 1885 when only 40 MPs bothered to turn up to debate it and the speaker abandoned the debate as so few MPs were interested. Thus the bill to protect young women and children was sidelined, with the Liberals in crisis as the government was struggling to pass a budget.  The budget crisis forced Gladstone to  resign in June 1885 and Salisbury formed a minority Conservative government pending a general election –  the moral puritans realising that the bill having been sidelined would vanish when the election was called. Drastic action was needed, and they turned to the editor of the Pall Mall Gazette, W T Stead, to take up the cudgels hoping for a press campaign that the politicians could not ignore. Stead was both committed to reform of the law affecting young women and girls and prepared to take risks – though he based his campaign on meticulous research of a deeply scandalous situation.

Stead spoke to the head of the Criminal Investigation Department of Scotland Yard, Howard Vincent, who confirmed that the existing law was inadequate to trigger police action to defend even very young girls. Any doubt about this was removed when Stead visited a safe house run by the new National Society for the Prevention of Cruelty to Children (founded as the London Society  the previous year, 1884), and was introduced to a girl aged 7 who had been raped in a fashionable brothel, and one even younger, who had been rescued  by Society inspectors after being raped a dozen times. Her assailants had been discharged from court unconvicted. The magistrates ruled that she had to understand the evidence  oath sworn on the bible and was too young to do so. This viscious catch 22 meant young girls could be raped with impunity.

 

Older females could understand the oath but the existing law was inadequate to provide police with powers to investigate, even when it was clear brothel owners used violence to intimidate vulnerable women and prevent them appealing to the police. Vincent told Stead that young women could be bought and taken to brothels for sex against their will, and taken abroad to imprisonment in brothels – the phenomenon of White Slavery – and despite the age of consent being 13 this would not protect them as police were powerless to investigate the trade and take women to safety. For Stead, this was the equivalent of the sacrifice of virgins to the gods of the ancient world, and his campaign would be called The Maiden Tribute of Modern Babylon.

Stead set out to prove that young females could be traded for sexual purposes by the sensational method of purchasing a girl of 13 and sending her abroad – where she would vanish, but be under the protection of the Salvation Army which agreed to support his move. The girl was Eliza Armstrong, and Stead purchased her from her mother and sent her to a brothel where she was lightly drugged and left alone with Stead. Having proved that he could have raped her, the still virgin Eliza was then taken abroad by the Salvation Army. Stead wrote his story in the Pall Mall Gazette and launched a campaign backed by Moral Purity and child protection groups across the country.

The full story can be read in my book SCANDAL – THE SEXUAL POLITICS OF LATE VICTORIAN BRITAIN (Sutton 1995) and while the particulars belong to the history of morality, the political effects prove without question the rule that legislation can be remade if there is a powerful upsurge of public feeling. The minority Conservative government had no more intention of passing a Criminal Law Amendment Bill into law than the Liberals under Gladstone had been, but the  well organised public campaign in support of pushing the Bill through into law became unstoppable.

 

The wider context aided the campaigners. Stead’s campaign and the actions of the SPCC and moral groups like the Society for the Suppression of Vice occured during a time of political instability, with the Tories and Liberals both planning for a General Election after Gladstone’s resignation. The election could not happen immediately because the extension of the franchise to male labourers, agreed in 1884, was delayed as the new voter lists had not been completed. The gap between Gladstone’s resignation and the election gave the reformers a window of opportunity. They knew that the situation meant that working class men could be persuaded that their daughters were at risk from the lust of rich men, and this message was easily understood, the National Society for the Protection of Children agitating for the age of consent to be raised to 18 – unsuccessfully, but pointedly ensuring the issue could be an election issue.

 

Stead’s sensational story made this unavoidable. Advertised on 4th July 1885, the actual articles at the start of the following week forced the Conservatives to reintroduce the Liberal Bill, and the Conservative Home Secretary R A Cross brought it back to the Commons five days after Stead’s first article. Passing the bill into law and defusing the furore had become an urgent priority for both major parties, and it became law on August 14th.

 

The significance of the 1885 Criminal Law Amendment Act Campaign

 

The historical significance of the Maiden Tribute campaign and the passing of the Act casts a sharp light on the notion of Victorian Morality, which clearly was a fiction before the Act. Prostitution had long been acknowledged as a key element of city life, and tolerated. Sex was umentionable in polite society, but prostitution was openly debated in parliament. However the refusal of MPs to protect young girls from gross exploitation and failure to challenge White Slavery in law – by MPs of both major parties – went well beyond the previously open acceptance of the trade in sex, which had been debated and tolerated for several decades.

 

By 1882 and the Lords select committee report, the existence of gross human rights abuses raised the temperature. There had long been a double standard of morality between men and  women, but what was happening to girls clearly went beyond this. The refusal of male MPs to protect the vulnerable outraged common decency, uniting the morality lobby, the child protection lobby, and the newly emerging feminist movement. Like child employment in factories before the factory act, the refusal to extend legal protection showed political blindness in  a climate where class politics and human rights were both becoming political issues. MPs were out of touch with the new politics of an increasingly democratic society. Nevertheless, they were able to ignore protests till Stead’s campaign.

From a constitutional viewpoint, there was nothing new about the strategy, which drew on the attempts to pressurise parliament of the Chartists and the Anti Corn Law League half a century earlier, though with an unprecented use of press to reach normally a-political citizens.  The key constitutional  issue is that when the pressure was applied by Stead and his colleagues, there were no institutional barriers to changing the law. MPs only had to change their mind. The speed of government reaction was purely due to the fear among politicians, once they were exposed to the campaign in London and other major cities, of a backlash which could have severe electoral consequences in the impending election (though this did not take place till 1886: but the Conservatives had no intention of waiting till it was on the  horizon).

 

Whatever had been said or passed into law before, once the campaign had become a major sensation the political imperative was clear- abandon previous legislation (theoretically parts of the 1861 and the whole of the 1875 Act (7)) and reverse policies and attitudes to produce a whole new settlement. The barriers to changing the law were purely due to attitudes among MPs, and once they feared an electoral backlash they capitulated, totally if  with a bad grace. Parliamentary sovereignty asserted itself, as Stead and his allies knew was possible.

 

While the campaign was crude and Stead himself cut corners, later serving time in prison for a technical offence – he had bought Eliza from her mother: but it was her father, in this patriarchal society, who had control over her and Stead had not asked him. Nonetheless, the substance of the campaign was well founded. The Act, entitled “An Act to make further provision for the Protection of Women and Girls, the suppression of Brothels and other purposes”, became the cornerstone of moral law for several generations. The age of consent, despite recent debates, has remained at 16 ever since 1885.

The Act actually went beyond the topics indicated in the title, notably including the notorious Labouchere amendment (Clause 11) which criminalised gross indecency among men. This was used ten years later to prosecute Oscar Wilde. It can be argued that this was out of order given the actual substance of the parliamentary debate had been the feminist issues of women and girls, but the Speaker ruled that any topic of a sexual nature could be introduced into the debate –  a very wide definition of parliamentary sovereignty- but it was difficult to challenge it, and no-one inside or outside parliament did. When push came to shove, parliamentary sovereignty proved unchallengable. While the introduction of referenda have created many issues which are so far unresolved, it is undoubted that parliamentary sovereignty remains intact and a W T Stead could well look on the activities of the pro-Brexit press as showing a family resemblance to his own largely forgotten campaign of 1885.

 

Constitutional problems and the current controversies

 

The Maiden Tribute affair is one small example of how successfully a political system based on an

unwritten constitution could produce reform demanded by popular pressure, and this was underlined by

more successful if longer run campaigns including the Anti Corn Law League and the Women’s

suffrage movement. Even the Chartists, though defeated in the 1840s, could look at the success of 5 of

their 6 principles made law with some satisfaction. The result has been that the system has been

supremely successful in coping with demands for change. While the Maiden Tribute campaign is

unusual in using shock tactics, a campaigning newspaper and an ad hoc alliance of campaign groups

and leaders, and certainly was an unrepeatable exercise comparable to using Dyno Rod to remove an

obstruction in a pipeline, it had exploited the key fact about parliamentary sovereignty – MPs can

change their mind.

 

The ability of a sovereign parliament to modify existing laws and practices without a formal written

constitution has been undeniable but in the late twentieth century this ceased to be the case. The initial

referendum of 1975 succeeded in securing consent for a settlement which lasted for four decades, but

without setting any rules. It had a two thirds majority in favour, but this was not set down

as a principle and the vote was advisory. Changes to make decisions mandatory, and by simple

majority, then took place without systematic analysis of the consequences.

 

The Brexit situation points up unresolved issues which the traditional unwritten constitution has failed

to deal with. Despite previous successes over, centuries recent developments have called into question

the centuries old assumption that adaption within the UK could continue to cope with stresses which

are driven by powerful, and contradictory, nationalist pressures, notably in Scotland. It is not simply

that the  limits of having to rely on unwritten rules has proved a challenge to a divided polity which

has little constitutional grasp, as the Lords debate on Article 50 showed . There is no obvious sign a

written constitution would make a positive difference and formal constitution making is a dead letter

but it is a pressing issue that the referendum method in the UK has no checks and balances. As

operated in the UK, referenda are effectively a game of Russian Roulette, where a small majority which

can well be temporary leads to massive consequences. At the heart of the problems, is the unresolved

issue of the adoption of referenda without any clear idea of how this meshed with parliamentary

sovereignty, especially once the continuing problem of whether small majorities had resolved

controversial issues emerged with the conflict between the Scottish and UK results in 2016 and also

intensified unfinished business from the earlier Scottish referendum.

 

The Brexit movement and Scottish Nationalism, both of which have demanded referenda,

successfully, produced outcomes which have only produced unstability. One very obvious

shortcoming is the lack of a settled resolution to  the national issues inside the UK. These have been

underlined by Brexit, especially as – in contradiction to the Brexit rhetoric that the People Voted For

Brexit – the obvious facts are that Northern Ireland and Scotland did NOT vote for Brexit  The existing

problem of the unresolved Scottish independence referendum was magnified by Brexit. UKIP’s lasting

achievement may finally prove to be that they helped secure the breakup, not the independence, of the

  1. And Brexit itself south of the Scottish border has not proved to have won over the dissidents,

splitting the nation into opposed camps.

It is thus clear that Referenda are not proving successful in resolving long run political disputes nor in

creating a climate in which such disputes can be easily resolved. No short paper can deal with

these fully and this paper does not attempt to do so. However the difficulties, which revolve around

the unresolved issue of sovereignty and the role of parliament will become more pressing as

the Brexit leaving date approaches. Parliament has regained the right to vote on the Deal. But the

government has made it clear this will not stop Brexit. Its position, made clear several times and most

notably in response to epetitions, is that

 

“The British people voted to leave and the Government will implement their decision. The vote on the

final deal will give parliament the choice to accept the agreement or leave the EU with no agreement”.

(8).

 

A choice which is so constrained is not a choice, and raises the issue of whether if parliament

voted down the agreement the government could use Crown Prerogative – the power of the

monarch which transferred to the Prime Minister – to push through the No Deal scenario. But to do this

would show the nature of Prime Ministerial power as monarchical power, and the disputes around the

legitimacy of that would be very damaging. Perhaps the PM would call a General Election, but if so it

could hardly be a one issue campaign – the record of the PM itself would be a factor, as it was in the

2017 election. Under these circumstances, the appeal to the sovereign people would become

increasingly attractive to both sides.

 

That popular sovereignty is now the ultimate arbiter was hinted, in a very tortuous way, by Brexiteer

Michael Gove writing in the pro- Brexit newspaper  The Daily Telegraph. Under a headline  THE

BRITISH PEOPLE WILL BE IN CONTROL IF THEY DISLIKE THE DEAL (9)  he glossed the

agreement reached the previous day discussing the three elements identified by the Conservative Party

as initially important – these are the ones referred to by the Party in the web site entry mentioned in

footnote (2) – but crucially wrote “The British people will be in control. By the time of the next

election, EU and any new treaty with the EU will cease to have primacy or direct effect in UK law. If

the British people dislike the arrangement that we have negotiated with the EU, the agreement will

allow a future government to diverge“. (emphasis added – diverge here presumably means get closer

to the EU as any movement would be to reject the terms of leaving- assuming that there is a treaty –

itself a dubious assumption once Theresa May said No Deal is better than a Bad Deal) However the

British people will have no say over the Deal before it is implemented, which if not accepted by

parliament will lead to a no deal scenario not mentioned by Gove – which would not be an option put to

the people unless there is a referendum. The terms of leaving  the EU will not be referred to the British

people unless the constitutional problems referred to above lead to a General Election before the date of

leaving as defined by the Conservative Party.

 

Gove clearly is not arguing that this would happen, and the next General Election as such is not due till

2022 under the flawed Fixed Term Parliament Act (10). Thus if the Conservatives take Britain out

of the EU in March 2019 there would be over three years till the General Election if the law is followed

and thus it is nonsense to suggest that the British People would be able to control their future. Only a

Referendum would do this, and Gove does not mention the possibility. It may, however, have occured

to Farage that if popular soverignty is to be invoked, as Gove is trying to do, it can only be done

through another referendum. Farage has long argued that on this issue referenda are the only way that

the decision can be made if the sovereign people are to be involved. On the constitutional issue, he and

not Gove appears correct.

 

If parliament has handed over sovereignty on the EU issue to the people via Referenda, as appears to be

the case, parliament would be overruled by government if it voted against the Deal, as the government

has a mandate via the 2016 referendum. Thus to defeat the Deal requires a third referendum. The

constitutional position seems clear. General Elections and parliamentary votes take second place to

referenda. Farage may  well be wrong in contending a new vote would lead to a higher majority for the

Leave camp. That is a political judgement, not an issue of constitutional propriety. What Farage is

concerned about is a Deal which will not be pure Brexit and could leave links with the EU. To defeat

this would need a referendum not a vote in parliament which neither he nor the Remainers can predict.

But on the pure issue of constitutionalism, he appears to be right. Only a referendum can decide the

issue, of the Deal and indeed Brexit itself if. Parliament can debate the Deal, but if it rejects it the

government could use Crown Prerogative to go to a No Deal solution using the referendum result as the

mandate.. Parliament seems to be in a no win situation.

 

At the heart of the issues posed by Brexit is parliamentary sovereignty. If parliament has handed over

its sovereignty to referenda as appears to be the case, then the key principle that the decisions can be

revoked or amended also apply, must now apply to Referenda. The ‘meaningful vote’ promised

parliament over the terms – difficult to see happening if the terms are still being negotiated, though the

deadline can be extended beyond March 29th 2019 – will be subject to the doctrine that No Deal is

Better than a Bad Deal, and parliament would not have a meaningful vote against. Whether this would

lead to a General Election or a tame acceptance of what the executive had negotiated is pure

speculation. But what can be discussed and resolved without waiting is what role popular sovereignty

has in this matter. Parliamentary sovereignty has not been abolished, simply transferred to the poeple

by referenda. The final approval or rejection of the EU deal must therefore lie with the people, and not

with parliament. Parliament can only approve a further referendum and in achieving this it may be

necessary to have a public campaign – best not left to Nigel Farage. However he alone seems to

have grasped the implications for parliamentary sovereignty of constitutional developments. The

implications of this outcome are not the least important of the many issues about sovereignty that the

current debate about Brexit has thrown up.

———————————————————————————————- 22nd January 2018

 

(1) The original Italian version probably written in 1513 though not published till 1532 after Machiavelli’s death, is entitled De Principatibus,(Of Principalities). The dedication was to Lorenzo the Magnificent, the Medici leader, and Machiavelli said (p5, Penguin edition 2004) that he had discussed Republican politics in another work. The principles he describes are however common to different types of government. The other work is probably his book Discourses on Livy.

 

(2) Bernard Donoughue Downing St Diary – with Harold Wilson in #10 Jonathan Cape 2005 p5.

 

(3) https://www.conservatives.com/sharethefacts/2017/12/deliveredthreepromises – recovered 16th January 2018

 

(4) Guardian of 10th November, Independent of 9th November- the Independent article refers to a speech made by Lord Kerr to the Open  Britain group) while other reports refer to comments made on Radio 4.

 

(5) Vol 13 – Sir Llewellyn Woodward Clarendon Press second edition 1962

 

(6) In Twentieth Century British history the Suffragette-Suffragist campaign is popularly belieived to have produced a successful change in statute and policy, but  it did not succeed before the First World War as the Liberals never conceded. In the Nineteenth the Anti Corn Law League was massively successful, though perhaps not anti Establishment. Both relied on extra and internal parliamentary pressure, as did the Maiden Tribute, with the use of mass media. Anti European campaigns were initially internal to the major parties, but the influence of UKIP while not specifically a pressure group as always an electoral project, shows a skilful use of pressure group tactics to challenge cross party government politics.

 

(7) Offences against the Person Act 1861 sections 49 and 52 and Offences against the Person Act 1875

 

(8) Response to epetition by Ann Greaves which will expire on 17th May 2018. Government response dated 17th December 2017

 

(9) Daily Telegraph 9th December 2017, p3

 

(10) The 2011 Act was designed to prevent the Prime Minister calling an early election to protect the Lib Dems in the 2010 coalition. It cannot do this, as was demonstrated in April 2017, as the PM can call an election and the opposition parties must vote for the suspension of the Act or appear to be afraid of the election and suffer electoral damage. Corbyn’s willingness to accept the PM’s decision and vote for suspension was paradoxically the first step to his successful General Election campaign. Theresa May, however, showed that the PM’s power had been enhanced but would then not be able to control events. A future General Election before the term allowed by the FTPA would be an high risk strategy, but it is entirely legal. The FTPA is another failing constitutional muddle from the Westminster bubble.

 

 

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