On Brexit, Theresa May should embrace Parliament's inclusive sovereignty

To act otherwise is a dangerous exercise in populism. 

NS

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If the Prime Minister wanted some guidance at this particular time, she could do worse than refer to the writings of Sir Bernard Crick. As a professor of political theory and political institutions, Sir Bernard understood the link between "politics as theory" and "politics as practice" in a way that was quite unique. When it came to democratic politics, his thesis was very simple – politics is inevitably slow, messy and cumbersome. It grates and grinds in a manner that can be incredibly frustrating to those committed to rapid change. And yet for Crick this cumbersome quality of politics was not a failure. If anything, it reflected the great beauty and value of democratic politics, because it demanded constant compromise and negotiation.

Theresa May is suffering from an acute (democratic) pain in the neck. Given the pro-European stance of many MPs, the need to secure the support of the legislature is obviously a significant annoyance. But the judiciary has quite rightly underlined the need to respect parliamentary sovereignty. Indeed, how could the judiciary have come to any other conclusion? If I wrote the book British Constitutional Law for Dummies, the centrality of parliamentary sovereignty and the role of Parliament in both making and unmaking laws would be on page one of chapter one. Page two would probably highlight the role of the judiciary, in relation to judicial review. This is not a decision about Brexit per se. It is a decision about due process and the manner in which the government needs to go about triggering Article 50.

In essence, the government is arguing that the referendum result provides a constitutional legitimacy that removes the need for Parliament to pass legislation (and allows the government to trigger Article 50 by Royal Prerogative). Not quite. The referendum triggered a process but it did not (nor could it) in any way remove Parliament from that process. To do otherwise would be little more than a dangerous exercise in populism. Details must now be dealt with, clarity must be achieved, flesh placed upon the bones of the referendum’s rather skeletal decision.

And in terms of democratic legitimacy, it was a skeletal decision indeed. The Brexit referendum was hardly a definitive statement of the public’s position. There were none of the geographical or numerical thresholds that would usually be required for such a constitutional question, and the campaign was defined by half-truths, gross misrepresentations, fairy tales and fig leaves. The Leave campaign undoubtedly won the day, but let us not forget that of the 46.6m people that were eligible to vote, only 17.5m actually voted to leave (16m voted Remain and 13m did not vote at all).

As May thinks about the future, she might just reflect on Crick’s classic Defence of Politics and through this adopt a far different, mature and positive stance regarding how to take Brexit forward. Democratic politics may not be perfect – "it cannot make all sad hearts glad" – but working through Parliament, rather than attempting to go around Parliament, will ultimately provide a far less socially divisive and disruptive route. (Incidentally, Sir Bernard’s next book after his Defence (1962) was The Reform of Parliament (1964)).

Matthew Flinders is Professor of Politics and Founding Director of the Sir Bernard Crick Centre for the Public Understanding of Politics at the University of Sheffield. He is also Chair of the Political Studies Association of the United Kingdom.