The ‘will of the people’ appears to have become a legitimating idea for the Johnson government to supersede representative democracy and the rule of law. Yet in giving the ‘will of the people’ such prominence, the Brexiteers have begun to behave just like their worst enemy, writes Pravar Petkar (LSE).

The Brexit negotiation has seen an array of constitutionally significant moments before the UK has even formally left. In this process, however, fundamental constitutional principles such as Parliamentary sovereignty and the rule of law have been put in peril by the Conservative party in order to fulfil what is regarded by the current government as the unquestionable ‘will of the people’ as expressed in the 2016 referendum.

This notion of the ‘will of the people’ appears to have become a legitimating factor for constitutionally suspect government actions that supersedes even representative democracy and the rule of law. Yet in giving the ‘will of the people’ such prominence, the Brexiteers have begun to behave just like their worst enemy.

The legitimacy of political action might be conferred by a democratic process (‘input legitimacy’), agreement upon the outcome produced (‘output legitimacy’), and arguably also by the notion of ‘political messianism’. In this third conception, as set out by Weiler, legitimacy is conferred by the ideal or purpose to be reached at the end of a process, irrespective of the means used to reach that end. Perhaps the best examples of ‘political messianism’ are seen in the EU itself. For present purposes, though not the focus of Weiler’s thesis, attention should turn to Article 114 TFEU, which confers upon the EU competence to pursue measures that enable the proper functioning of the internal market.

As Davies suggests, this competence is drawn purposively. The Court of Justice has dismissed challenges to the use of this provision, going as far as to rule that measures relating to health which had a secondary impact upon the internal market needed action by the EU institutions and not by Member States.  This sacrifices Member State competence to the overarching purpose of creating an internal market, which cannot be altered other than by Treaty amendment, whilst bypassing the democratic process entirely.

The way in which the ‘will of the people’ has been used to justify the destruction of fundamental constitutional principles in the UK reflects this ‘political messianism’. Since the 2016 referendum vote, there have been a number of instances regarded by supporters of Brexit as attempts to block the fulfilment of the ‘will of the people’. These are the sacrifices to the messianic goal of withdrawal that appears to be beyond reproach, just as democratic principles and Member State competence appear to have been sacrificed in the EU’s pursuit of a functioning internal market.

After the Divisional Court ruled against the government in the Miller case at first instance, the three members of the bench were branded ‘enemies of the people’ in a Leave-leaning national newspaper, with the then Lord Chancellor’s statement of support for the independence of the judiciary criticised for its brevity. The first constitutional fundamental imperilled here was judicial independence, a core component of the rule of law, a striking move considering that the UK Supreme Court itself firmly acknowledged in its judgement that the case before it had nothing to do with the propriety of withdrawal. At an early stage therefore, the importance of the ‘will of the people’ as the ideal to be achieved was emphasised.

When the Speaker blocked the then Prime Minister Theresa May from holding a third meaningful vote on the Withdrawal Agreement under Parliamentary procedure, he too was reprimanded for seeking to block Brexit. This procedural rule is designed to ensure that the government did not repeatedly bring the same motion or bill before Parliament. It enables the legislature to act as a check on the executive by preventing Parliamentary time being wasted on measures that do not have majority support.

The criticism faced by the Speaker and the suggestion to prorogue Parliament to circumvent this rule suggests that the political accountability of the executive to Parliament is an inconvenient obstacle to achieving the ‘will of the people’ rather than a key element of our un-codified constitution. Just as the Court of Justice’s approach to Article 114 TFEU in Tobacco Advertising II fails to provide meaningful accountability in pursuing the creation of the internal market, the ‘will of the people’ has justified attempts to remove political accountability in the UK.

In recent weeks, the Queen has approved the Prime Minister’s request to prorogue Parliament for five weeks, cutting off the prospect of Parliamentary debate in all but the final two weeks before 31^st October, the present end of the Article 50 TEU process. This makes the prospect of a no-deal Brexit all the more likely. With the EU Withdrawal (No.2) Act 2019 having received Royal Assent on 9th September 2019, the Prime Minister is under a legal duty to seek an extension to the Article 50 TEU process from the European Council. Yet there are suggestions that he may simply refuse to obey the law and do nothing.

These concerning actions make Parliamentary sovereignty, a cornerstone of the British constitution since the Glorious Revolution of 1689, subservient to the ‘will of the people’, striking at the heart of the constitution. They also imperil the authority of representative democracy in the UK and the idea of equality before the law, regarded by the late Lord Bingham as a crucial element of the rule of law. Recent events therefore show how constitutionally flagrant acts are justified by their fulfilment of the ‘will of the people’, as in the ‘political messianism’ of the EU.

The ‘will of the people’ has therefore been transformed from a formal statement of the vote to leave the EU into an almost unquestionable, messianic purpose. It is surely one of the great ironies of the Brexit process that in this transformation, the government has created a form of purpose-based legitimacy in UK constitutionalism that reflects one of the most fundamental criticisms made of the EU by Eurosceptics. For all that Brexit is about ‘taking back control’, those attempting to reassert the UK’s sovereignty now mimic the very institution which they seek to abandon.

This post represents the views of the author and not those of the Brexit blog, nor LSE. Image C00 Public Domain.

Pravar Petkar has completed the LLM from the LSE, specialising in Public Law. He is an aspiring doctoral candidate whose research interests include concepts of sovereignty, democracy and legitimacy in the British constitution and EU legal order.