The trouble with Democracy is that there are so many different forms. From Plato’s Democracy, or his accusation that it was a type of anarchy, through to the somewhat ironically named “Democratic People's Republic of [North] Korea”. Within the western world there are many different varieties of democratic government, from the Electoral College of the United States to the Direct Democracy of Switzerland, to the Parliamentary Democracy of the United Kingdom encoded in an unwritten Constitution.
To me it seems odd therefore, that currently here in the UK so many refer to a single point in time, a vote, in a referendum which achieved a narrow 3.8% majority of those who voted, as some form of ultimate Democracy. Any criticism, or even questioning of the 3.8% result is met with cries of “undemocratic.” But let’s see how it has guided our Democracy since 23rd June 2016.
The meaning of leaving the EU was not defined prior to the referendum, it was only afterwards that the Government decided to interpret the outcome to mean the UK was leaving just about every European institution it could think of. This was despite Briefing Paper 07212 issued to both Houses of Parliament in advance of the debate on the Referendum Bill (which authorised holding the referendum) as explicitly stating,
“It does not contain any requirement for the UK Government to implement the results of the referendum”, …. “Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions”.
The same briefing document also explained that because the referendum was only advisory, no threshold was required in the final vote. Somewhere from the time of Parliament voting on the referendum act to the time of the referendum, the electorate were led to believe this was an ultimate decision point. It was not, as constitutionally it was for Parliament to consider the result of the referendum and make a decision. There was no reason that this could not have been made abundantly clear throughout, but for whatever motive, it was not. By the time of the referendum however, it had become politically impossible to go back.
Following David Cameron’s resignation, Theresa May took over as Prime Minister. She decided that she, or her Executive Government alone would decide when to trigger Article-50, giving the EU notice that the UK was leaving. Her attempts to push Parliament out of the process was subsequently overturned by the Supreme Court.
What should have happened next is that a white paper should have been issued laying out future proposals and Parliament then given time for due consideration. What actually happened was that when the Government went to Parliament, it was rushed through and the White Paper was actually issued after the Parliamentary vote.
Article-50 was triggered on 28th March 2017 but on 18th April, Theresa May called a General Election (more accurately she announced she was seeking a 2/3rd majority in Parliament in order to hold a General Election under the Fixed Term Parliament Act). She explicated stated that her slim majority of the time was inadequate to see Brexit through and that she wanted “strong and stable Government”. In the event she did not get the landslide she was expecting and lost her majority. Forming a minority Government she then negotiated a supply deal with Democratic Unionist Party which cost the taxpayer £1 Billion. As before, the £1 Billion had no Parliamentary approval and has since been challenged in the courts.
Even though the Government lost their majority, it made no difference to their approach to Brexit. The referendum 3.8% was still allowed to trump the result of the General Election were they did not get majority and the electorate was instructing them to compromise. And now we have the EU Repeal Bill going through Parliament.
This Bill overturns the 1972 European Communities Act at the time we leave the EU and transfers all EU law to the UK. Without this, UK law would be in chaos as a whole swath of legislation would effectively disappear overnight. Having transferred EU law into UK law then those laws can be amended over time it what would seem to be an orderly process. That sounds sensible and indeed constitutionally there is no problem with it. But the way the Bill is constructed essentially gives the Government control of all Common’s Committees that scrutinise legislation. It will effectively allow them to steamroll through any changes in the law they wish while pushing Parliament aside. Parliamentary sovereignty once again is being subverted. With her deal with the DUP there is little doubt the Bill will be passed (although it still has some way to go yet) but the DUP are not part of the Government - there is a supply deal in place. Indeed a full coalition with the DUP is impossible under the Good Friday Agreement.
We are now about to enter a period where the Executive of the Government can repeal parts UK law as they sit fit, without proper legislative scrutiny and without Parliamentary approval. Moreover, the Government that is doing this is a self-inflicted minority Government. The Government insist that it’s only about making "technical corrections" but in reality we are being asked to trust them not to abuse their new founded powers. Given Theresa May’s track record then I find no reason to trust them that they won’t say one thing now and another thing later.
This is not about leaving the EU or attempts to sabotage Brexit. This is about the fundamental Democratic system on which this country operates. One reason cited by those wishing to leave the EU is that they want to return to the Sovereignty of Parliament. I have sympathy with this but why do we have to subvert the Sovereignty of Parliament to do so?