At the Crossroads

Bruce Ackerman on the surrender of parliamentary sovereignty

Britain’s constitutional revolution is proceeding at such a pace that it is easy to lose sight of the meaning of it all. The reforms of the past generation – the delegation of quasi-sovereignty to Brussels, devolutions to assemblies in Northern Ireland and Wales and a parliament in Scotland, the passage of the Human Rights Act and the creation of the Supreme Court, the continuing transformation of the House of Lords – have already begun to shake the foundations. All challenge, in different ways, the previously undisputed centrality of the House of Commons in Britain’s governing arrangements. All significantly limit the effective power of the cabinet to exercise plenary control over the country’s political destiny. But the new proposal for electoral reform, championed by Nick Clegg and the Liberal Democrats, marks a turning point. It could well represent the death knell of parliamentary sovereignty.

While the granting of quasi- and semi-sovereign powers to rival power centres might threaten the functional supremacy of the Commons, traditionalists argue that it doesn’t really undermine the foundational principles. After all, the Commons remains free to destroy its new creations by a simple majority vote (after a brief pause in the Lords); or so the statutes, in one way or another, tell us. And if the Commons can repudiate its own institutional experiments, doesn’t the principle of parliamentary sovereignty remain intact?

Maybe not. As the new power centres increasingly assume a life of their own, statutory assertions of ultimate control by Westminster begin to wear thin. This is hardly the first time in British history that evolving practice has gradually undermined purportedly central constitutional principles. During the early 19th century, the prerogatives of the Crown also seemed quite robust; but a hundred years later, they had been eviscerated by the remorseless pressure of countervailing practice.

Not only are the effective powers of the Commons in decline, but a new phenomenon increasingly provides an alternative source of constitutional legitimacy: the referendum. The rise of the referendum has been closely connected to the decline of Parliament’s effective supremacy. A key moment came in the early 1970s, with Edward Heath’s effort to gain approval for Britain’s entry into the EEC through normal parliamentary channels. Labour didn’t only challenge the terms of Heath’s deal: its election manifesto insisted that it was up to the people ‘through the ballot box’ to determine whether Britain should join. After winning the election, Harold Wilson renegotiated Heath’s terms of entry, then put the deal before the electorate in a referendum in 1975. His appeal to popular sovereignty immediately generated a distinctive kind of non-parliamentary politics. While the prime minister campaigned for a yes vote, dissenting members of his cabinet joined the opposition, disrupting traditional notions of cabinet responsibility. Wilson’s decisive two to one victory represented not only a triumph for popular sovereignty, but also a defeat for traditional norms of parliamentary government. This scenario will be repeated in May, when the coalition government puts the proposal to alter the voting system to a referendum: leading Conservatives will be urging people to vote no while remaining bound together with Clegg and his fellow Lib Dems as the coalition pushes the rest of its legislative agenda through Parliament.

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