Parliament versus the people

The Russian playwright, Anton Chekhov, argued that, when writing a play, “If in the first act you have hung a pistol on the wall, then in the following one it should be fired” (Gurlyand 1904: 521). The United Kingdom acceded to the European Economic Community on 1 January 1973 through a parliamentary act, the European Communities Act 1972. Under the constitutional doctrine of parliamentary sovereignty, the United Kingdom could also leave through a simple parliamentary act – indeed, that is precisely what the Labour Party promised to do in its 1983 general election manifesto. However, between 1975 and 2013 there was never any likelihood that a majority in the House of Commons would vote in favour of leaving the European Union, nor that any government would put such a proposal to parliament. If the UK were ever to leave the EU, some superior mechanism would be required, one to which parliament would have to bow. There was only one such superior force: the voice of the people, directly expressed. But the referendum was traditionally held to be against the UK’s parliamentary tradition of Burkean representative democracy. So where did the referendum, as a possible constitutional device, come from? How did the referendum pistol come to be hanging on the wall in 2013?

In Britain between 1867 and 1911 “it was still possible to believe that … the referendum would be introduced to resolve constitutional issues” (Bogdanor 1981: 5). In that period, following on from the third Reform Act of 1867, “there was no agreement on the shape which democracy should assume in Britain” (ibid.). The party system was only just emerging and the House of Commons was, increasingly, asserting its supremacy against the House of Lords. But the simultaneous emergence of party government and weakening of the checks and balances of a bicameral system made several constitutionalists apprehensive. That the will of the people should be expressed through a sovereign parliament was all very well, but “of what value was the sovereignty of Parliament if it turned out to be no more than the sovereignty of party?” (ibid.). Thus, “the referendum offered an opportunity to challenge this dominance through an appeal to the people” (ibid.: 7).