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Brexit, the Constitution and the Alternatives

At a recent seminar on Brexit held at King’s, the Professor of European Law, Takis Tridimas, declared that the referendum on Britain’s continued membership of the European Union, held on 23 June 2016, was the most significant constitutional event in Britain since the Restoration in 1660. For the referendum showed, or perhaps confirmed, that on the issue of Europe, the sovereignty of the people trumped the sovereignty of Parliament. In the referendum, Britain voted, against the wishes of Parliament and government, to leave the European Union. Admittedly, the European Union Referendum Act 2015 had provided that the referendum should, by contrast with the referendum on the alternative vote held in 2011, be consultative. Nevertheless, the government had agreed in advance to be bound by the result. Parliament was not bound by the result, but, as the then Leader of the House of Commons, Edward Short, had declared in the House of Commons in relation to the 1975 Referendum Act, Britain’s first national referendum, which was in materially identical terms to the 2015 Act, ‘one would not expect honourable members to go against the wishes of the people’. Europe, then, has been responsible for the introduction of a new principle into the British Constitution—the principle of the sovereignty of the people, a principle which, on this issue at least, supersedes the doctrine of the sovereignty of Parliament. It is a weakness in the doctrine of parliamentary sovereignty, and one of which Dicey was fully aware, that some decisions are so fundamental that a decision by Parliament alone does not yield legitimacy. Amongst those decisions are the transfer of Parliament’s powers either downwards—through devolution—it has become perhaps a convention of the constitution that legislative devolution is to be preceded by a referendum—or upward to a supranational legal order such as the European Union, or continued allegiance to such a supranational legal order. In general elections, the people give authority to MPs to legislate, but not to transfer the powers of Parliament. ‘The Legislative’, Locke insists, ‘cannot transfer the power of making laws to any other hands. For it being but a