Brexit and sovereignty in England

At the dawn of the revolutions of the eighteenth century, the British island, deeply rooted in custom, looks suspiciously at the revolutions that plague Europe. At the end of the eighties and the latest political ideas are pouring out, most monarchies end up yielding sovereignty to the people. England, however, with a century of advantage, manages to avoid the impetus of Jacobin barbarism by recognizing the sovereignty of Parliament. Years later, Bagehot would warn that “dividing sovereignty into many parts is equivalent to having no sovereign.” In this momentous contest, England steps in with originality and offers her own solution to the problem of who is sovereign.

Brexit, although characterized as an act of sovereignty of the British people, was strictly speaking not such, at least in a legal sense. The concept of popular sovereignty that comes to say that power comes from the people, that is, from the bottom up, is unknown in English law. The expression ‘We the people’ that heads the North American Constitution would not achieve fit in the English Constitutional Law. The same fate would run concepts such as the Spanish nation or the Spanish people that appear in our Constitution.

In one of its articles, the Spanish Constitution proclaims that “national sovereignty resides in the Spanish people, from whom the powers of the State emanate”; which would be incomprehensible in England. The equivalent principle in England is that of the sovereignty of Parliament, according to which Parliament is the subject that exercises sovereignty, without any other subject, judges or the people themselves, being able to annul, veto or amend a single law that approves . Like everything English, that theory was forged little by little and reached its maturity at the support of Locke and the insistence of the Whigs. It is true that in 1653, in the time of Oliver Cromwell, sovereignty resided with the Lord Protector (Cromwell himself) and with the people represented in Parliament. However, this novelty did not survive Cromwell himself.

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From start to finish, the UK’s relationship with the European Union has been defined by two referendums: the one in 1975, shortly after entering the then European Economic Community, and in 2016, when the majority of the British people supported the departure of the European Union. The first was called by the Labor Party to save the party from the division on the European question that existed at that time and the second was called by the Conservative Party, for precisely the same reason.

Well, in both cases, neither of the two referendums were binding. This was not an arbitrary decision of the government of the day. On the contrary, such a decision was driven precisely by the doctrine of Parliament’s sovereignty, which prevents ultimate sovereignty from being transferred to another subject, in this case, the British people. It is Parliament, the ultimate subject that exercises sovereignty, who decides to be bound by the result of the referendum.

This explains why the figure of the referendum, always viewed with suspicion by British jurists, was not used in the United Kingdom until 1975. The only two national referendums that have been organized have been called in order to solve internal problems of political parties .

Spain, for example, has organized numerous referendums in recent decades, some with profound political consequences. Remember the referendum on the momentous Law for Political Reform in 1977 or the 1978 referendum on the Constitution. Unlike most European countries, for three centuries the United Kingdom has not only had a regime based on the same constitutional principles, but its political authority has not been questioned; on this double circumstance rests the British political success of the last three hundred years. With the Bill of Rights of 1689, the issue is settled and the sovereignty of Parliament is consolidated. Since then, the English constitutional system, less tangible and accessible and therefore less tinged with ideology, has been subject to evolutions but not revolutions. The centuries show it too much.

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Despite the extraordinary changes and vicissitudes that the country has suffered, for example, the union with Scotland and later with Ireland, the two world wars or the collapse of its empire, in substance, its parliamentary regime has remained unchanged. It is understood then that the need to draft a constitution to constitute a new regime has not been felt. For the same reasons, the concept of constituent power does not exist or is well understood, heir to that revolutionary France that wanted to establish a new regime and that in England (ahead of the political revolutions a century) was impossible to find accommodation in its legal system. That is why England has not cared for centuries what a constituent power is.

The consequences of this principle go further. The Spanish Constitution allows the modification of any article, although in some cases requiring a referendum. In the United Kingdom, on the other hand, constitutional changes, no matter how serious, do not require a referendum. In the absence of a codified constitution, the British Parliament is not bound by any constitutional principle except that of its own sovereignty. In Spain, any law is subject to the jurisdiction of the Constitutional Court. Not so in England. It is true, however, that during its membership of the EU, Parliament was obliged to draw up laws compatible with European law, thus qualifying – of its own free will – its own sovereignty.

The UK’s exit from the EU, although sustained by the decisive will of the British people, was ultimately a decision of Parliament; the simple and secular exercise of its sovereignty. In the end, so much metaphysical indecision about the EU ended up introducing direct democracy in England. Curiously, its relationship with the EU, now closed, has led to a greater use of the referendum (both national and regional) and without intending it, it has looked, even indirectly, to a certain notion of national sovereignty.

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Already outside the EU, without the advice of good old Bagehot and still with a European hangover, one wonders if the referendum has not taken root in old England. With the voices surrounding his departure finally denied, it is now appropriate to ask whether this discreet revolution will not bring consequences in a constitutional system that also relies on unwritten conventions and norms.

Eduardo Barrachina is president of the Chamber of Commerce of Spain in the United Kingdom.

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