All sorts of constitutional arguments which at the mid-twentieth century seemed to have been settled have reawakened under the stress of Britain’s membership of the EU. What we have been living through is one of the great periods of constitutional upheaval which have marked British history every hundred years or so, and when the dust settles we shall be looking out over a new landscape – though in some respects it is a landscape which would have been familiar to Englishmen three hundred years ago. In particular, we have been forced to think hard about what “sovereignty” means, and where it is located in the British system.
Until recently, the answer would have been “in Parliament” or, if one was being ultra-precise, “in the Queen in Parliament”, and this answer is still given today by a faction within the British establishment which wants to use Parliament to control Brexit (though they usually mean by Parliament the two Houses, or perhaps only the Commons, and not the Crown or the Crown’s ministers). But this was only ever true in a limited sense. Only laws made with the consent of Queen, Lords and Commons have ultimate legal validity, though there have always been very general statutes which granted a high degree of effective law-making to other entities, notably ministers of the Crown and (since 1973) functionaries of the EU.
But if one goes beyond this legal doctrine and asks “Why does this group of people meeting in a rather shabby building on the banks of the Thames possess sovereignty?” the realistic answer for many hundreds of years has been that they represent the British people as a whole; andthat the ultimate power must lie in the body which not only represents the people in some loose or metaphorical sense, but which, since the advent of democracy, has been elected on the basis of universal suffrage, namely the House of Commons.
What this answer illustrates is that constitutional theory is a blend of law and political theory. Nowhere is it clearly stated as a legal principle that Parliament must be representative — and indeed neither the Queen nor the Lords are — but no one today could reasonably deny that it is the fact of election which gives Parliament its authority, and that the non-elected parts have authority ultimately on the suffrance of the elected part, and not vice versa (this was decided conclusively in January 1649, and again in 1688)!
However, some people – and again, particularly those desperate to block Brexit – would respond, “Yes, but once elected the members have the right to use their own personal judgement”, and they might mutter something about Edmund Burke’s Speech to the Electors of Bristol in 1774, in which Burke proclaimed his right, if elected, to do just that. But what is often forgotten is that the Burkean view was always contestable, and indeed ran flatly counter to long-standing practices in the England of his day. It was not at all uncommon for M.P.s to be given a mandate by the same assembly which had just elected them. Prior to the introduction of the secret ballot in 1872 elections took place in raucous public meetings – a good picture of them is to be found in George Eliot’s relatively neglected novel Felix Holt the Radical – and the meetings could relatively easily agree on instructions to be given to the members on how to vote in Parliament. This had indeed been the usual practice in Bristol (which had one of the most extensive franchises in pre-Reform Act England), and Burke’s opponent in 1774 promised to continue the old custom. When Burke failed to do as his constituents wanted, he was promptly ejected at the next election.
It is not clear when the practice of local mandation ended, but by the late nineteenth century it had been replaced by the idea that a party manifesto serves as a mandate to the members elected under the banner of the party, an idea expressed most clearly in Baldwin’s plea to the electors in the 1929 Conservative manifesto to give the Government “a national mandate” to pursue the policies set out in the manifesto. But the most important example of the way the idea of a national mandate in a manifesto functioned is to be found in the last major change in the functioning of Parliament, when the House of Lords had to come to terms with the radical programme of the Attlee government in 1945. Despite a large Conservative majority in the Lords, the Labour and Conservative leaders agreed that the House would not exercise its right under the 1911 Parliament Act to delay legislation for up to two years –what was later known as “the Salisbury Compromise”.
Defending the agreement, Lord Cranborne (to be Lord Salisbury after his father’s death in 1947) said
Whatever our personal views, we should frankly recognize that these proposals were put before the country at the recent General Election and that the people of this country, with full knowledge of these proposals, returned the Labour Party to power. The Government may, therefore, I think, fairly claim that they have a mandate to introduce these proposals. I believe that it would be constitutionally wrong, when the country has so recently expressed its view, for this House to oppose proposals which have been definitely put before the electorate.
(HL Hansard, 16th August 1945, vol. 137, col. 47)
He put it even more clearly in October 1945:
If the country is behind [the government], their mandate will be renewed. If the country votes against them, it is clear that their policy is not approved. That is the proper constitutional course … First, there is the Government: over them comes the authority of Parliament: and over Parliament the authority of the British people. That is the structure of the British Constitution.
(HL Hansard, 31st October 1945, vol. 137, cols. 613)
“Over Parliament is the authority of the British people.” This was the implicit doctrine of the mandate: a policy which had been put before the electorate in the formal setting of a manifesto had a special authority, special enough to change a fundamental part of the British constitution. By recognising this, Lord Salisbury (it is not far-fetched to say) preserved the House of Lords, and may also have preserved civil peace in an almost revolutionary moment. If the idea of a mandate had been rejected, Salisbury could not have done this: the Attlee Government needed some means of enforcing the popular will against existing Parliamentary norms, and the obvious recourse was to the notion of a mandate. But the notion applies as much to the Lower as to the Upper House, and, as I said, it had traditionally been used to control members of the Commons.
The other weapon Attlee used against the House of Lords, as we have all been reminded recently, was prorogation. He used it in 1949 to create a special short session of Parliament to fulfil the requirements of the 1911 Act and force through a reduction of the Lords’ delaying power to one year in the face of their hostility to the nationalisation of the steel industry. No one thought this particularly unconstitutional, and Salisbury once again acknowledged that they were bound by the 1945 General Election mandate not to resist steel nationalisation.
It has been argued that the coming of Life Peers has changed the situation, since the Lords are now in some sense responsive to the needs of the country. But anyone who looks at the ranks of placemen in the modern chamber, and the cultural gulf between the members of the Lords and the wider population, would find this hard to believe: the modern Lords are as far out of line with the electorate as the hereditaries were, or maybe even more. If Salisbury’s arguments were correct in 1945, they are equally correct today.
It has also occasionally been argued that manifestos should no longer be taken seriously. For example, an article in The Economist in 1997 remarked that a manifesto merely
represents the terms of a truce between the factions that are inevitably present in any political party. The cost of these commitments, however, is that the government gets nailed down on policies which, even if they make sense at the time, may cease to make sense with passage of time.
But this was completely and characteristically to miss the point. The manifesto is a mandate not because of the intrinsic qualities of the policies, but because it is the means by which electors can authorise a policy as well as authorising a set of representatives, just as their predecessors did in the days before the modern party manifesto. Common sense would tell us, and certainly told our predecessors, that representatives may prove unworthy of the trust we place in them, and five years is a long time to wait to repair any damage. Mandation ensured at least a measure of continued control, even though The Economist might view such a thing with distaste. “Nailing down” is the point, not a defect.
The present Parliament has had two separate mandates to do with Brexit. Though this has been relatively neglected, it does have the traditional mandate of an election manifesto. The Conservatives’ manifesto of 2017 contained a number of pledges about Brexit. First, it pledged that the referendum result would be respected: “Following the historic referendum on 23rd June 2016, the United Kingdom is leaving the European Union.” Second, it ruled out continued membership of the single market and the customs union: “As we leave the European Union, we will no longer be members of the single market or customs union but we will seek a deep and special partnership including a comprehensive free trade and customs agreement.” And third (something almost entirely ignored) it committed a Conservative administration to a specific negotiating framework with the EU: “We believe it is necessary to agree the terms of our future partnership alongside our withdrawal, reaching agreement on both within the two years allowed by Article 50 of the Treaty on European Union.”
As we all know, this last commitment was almost immediately torn up by May in the face of the EU’s intransigence, a surrender which should have warned us about the fragility of the other manifesto commitments. The fact that May has presided over a minority government is irrelevant from the point of view of the mandate, since each Conservative M.P. was elected on this manifesto, and it is Conservative rebels who have largely been responsible for the long delay in implementing the referendum.
The Labour manifesto was more evasive, but it too contained the blunt statement “Labour accepts the referendum result”, and it also contained various pledges to negotiate new free trade agreements with other countries which would be incompatible with continued membership of the Customs Union. The DUP also proclaimed its absolute commitment to the result: “The DUP believes that this decision must be upheld and our MPs fought against those who sought to overturn the people’s decision, block Article 50 and tie the government’s negotiation stance.”
Unsurprisingly, neither the SNP nor Plaid Cymru committed themselves to respecting the referendum, and though the Liberal Democrats did do so, they did it in a very strange way, which, incidentally, seems to have popularised the term “Hard Brexit”:.
[W]e acknowledge the result of the 2016 referendum, which gave the government a mandate to start negotiations to leave. The decision Britain took, though, was simply whether to remain in or to leave the European Union. There was no option on the ballot paper to choose the shape of our future relationship with the EU on vital issues including trade, travel or security. While much remains uncertain about Theresa May’s approach, it is now clear that the Conservatives are campaigning for a hard Brexit. This means leaving the single market, ending freedom of movement and abandoning the customs union – even though these choices will make the UK poorer and disappoint many leave voters who wanted a different outcome.
Since staying in the single market and the customs union is staying in the EU, for the EU is nothing more than these two arrangements, this form of words was particularly deceptive, but mysteriously it has become mainstream for all the minority parties in Parliament, other than the DUP.
So even on the traditional view of manifestos, a majority of sitting members of Parliament are mandated to leave the EU, understood as leaving the single market and the customs union. But the 2016 referendum was also in itself a mandate, of an extremely clear kind. Just as the Salisbury Compromise had force because it recognized a political reality – the power of a modern democratic vote – despite the fact that in strict law manifestos had no special significance, so the power of the vote in June 2016 has created a mandate for Parliament, despite the fact that in strict law it was only advisory.
It was not merely an opinion poll, any more than a general election is merely an opinion poll on the policies put forward by the parties. The referendum was organised by the state, it gave everyone a vote, and there was a public understanding that the result would be respected. This was no less true of the referendum than of a party manifesto, and the referendum result in fact had additional authority, given by the fact that the proposition in the referendum was detached from other commitments and was the object of (for all its faults) an extensive and focused debate, comparable to the occasions in our past when a government has gone to the country seeking a mandate on a specific and crucial policy.
As I said, the programme of the Attlee government, though nostalgia has softened it, was close to revolutionary, and was denounced as such by the Conservatives. But rather than fight the programme through Parliamentary technicalities, they chose to accept the reality of a democratic vote, conscious that not to do so would be both a major change in the real British constitution, and a declaration of civil war. Far more was changed in Britain by the Attlee government than could possibly be changed by any form of Brexit, yet modern Parliamentarians seem incapable of emulating the wisdom of their precursors and recognising that above them is still “the sovereign people of this country from which Parliament gets its authority”.
Richard Tuck is a Fellow of the British Academy, and Frank G. Thomson Professor of Government at Harvard University.