November 22, 2016
In the ‘Any Questions’ programme on BBC Radio 4, on Friday 18th November, the panel discussed the recent UK High Court judgement that Parliament should have to approve the decision to invoke Article 50 to begin the process of leaving the EU. The government had been planning to use the royal prerogative without recourse to a parliamentary vote. The judges’ decision was based on law and not, as a number of somewhat hysterical anti-EU newspapers stated, on a desire to thwart the people’s decision. The government has appealed to the Supreme Court to make a final decision.
The question led to a discussion about parliamentary sovereignty, the restoration of which was a major argument for leaving the EU advanced by those advocating Brexit. When panellist Lord Blunkett, the former Labour MP David Blunkett, pointed this out, Nigel Farage, the acting leader of the UK Independence Party (UKIP) and also a panellist, said that parliament is not sovereign, but rather ‘the people are sovereign’. A heated debate then followed between Lord Blunkett and Mr Farage on the constitutional issues involved.
Stating that ‘the people are sovereign’ sounds reasonable; who could disagree with it? But what does it mean? Without more detail, it’s a statement devoid of content. I’ll consider what it could mean and the implications of possible interpretations.
Saying that the people are sovereign could be interpreted as meaning that the people should have a significant direct say in government policies. To make that possible requires a means of finding out what might be called the will of the people. There are two broad approaches: the government and parliament propose and the electorate is asked to approve; or the electorate proposes and the government and parliament implement the proposals. The two approaches are not mutually exclusive. The people could propose requirements which the government and parliament then refine and refer back to the people for approval.
How would the people approve what the government proposes? One approach is to hold a referendum on policy proposals. This would be rather expensive on a national scale if conducted the same way as the recent EU referendum. An alternative would be to use technology, getting people to vote online. A combination would also be possible, with an EU-style referendum for major decisions and online for lesser cases. The referendum or online voting could be UK-wide or applied to regions or countries within the UK. For example, legislation applying only to England would not require a vote in the other countries. A similar approach would extend to smaller regions or cities.
How do we gather the information required for the public to define policy? Research to find people’s opinions is widely used today. Focus groups, online surveys and polls conducted by polling groups are typical techniques. Many of these approaches ask for people’s intentions, typically how they would vote. Identifying policies from part or all of a population is more difficult but would be possible.
Gathering a selection of views on policy, as sketched out in the previous paragraph, has until recently been regarded as advisory. Referendums are also technically advisory although the few that have been held in the UK have been treated as definitive, including the recent EU vote. However, saying that ‘the people are sovereign’ suggests that the information gathered and a vote on policy direction are not advisory but should directly determine what is done. Effectively, government and parliament are reduced to an administrative function to carry out the ‘will of the people’.
I believe there are two significant problems. Start with the mechanics of direct democracy. There is a huge diversity of opinion across the UK, based on many factors, including education level, location, social attitudes and much more. Many of the views expressed will exclude others. Distilling all this into a coherent set of policies is impossible: there is no single ‘will of the people’. Whatever sets of policies are chosen, a significant proportion of the people will feel excluded.
The same applies to referendums or other voting schemes. The recent EU referendum has been immensely divisive. The result of 52% to leave versus 48% to stay has been treated by Brexit advocates as decisive. However, the 52% who voted to leave is in fact 37% of the electorate; 63% did not vote to leave. And 16-18 year olds were not allowed to vote, although they are arguably the most affected by the result.
The second problem is that most people in the UK, and other countries for that matter, have neither the time nor the inclination to get to grips with the complexity of the issues involved. They are in no position to make rational proposals or informed votes in such detail. I’ll come back to this in my next piece.
The UK evolved a system of representative, parliamentary democracy to overcome such problems. It’s not perfect – no system is – but it can work. The sovereignty of the people consists in their ability to throw out their elected representatives – the MPs – if they fail to deliver decent outcomes, not in telling the government and parliament what to do. The drift to a more direct involvement as suggested by Mr Farage is, in my view, dangerous.
Notes and sources
 The question was about the negotiation process: the questioner asked ‘Should we show our hand?’
 The fact that the UK does not have a written constitution can lead to a lot of discussion.
 The turnout was 70%. It was 52 % of this 70% that voted to leave.pbye