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Green DavidDr David G Green is Director of Civitas.

Are we content to be a useful outpost of American foreign policy?
According to successive American administrations down to the present day, we
should be. For years the better Americans have worried about supporting
dictators in countries such as Egypt merely because they served American
interests. And recently America has acknowledged that, if self-governing democracy
is right for the American people, it’s also right for nations such as Egypt.
Not so in our case it seems.

It’s a mistake to focus the EU debate  on the economy, let alone on the American
desire for the convenience of making a single phone call to Europe, when what’s
really at stake is whether we want to be a free people or a subservient one.
The European Union betrays the unspoken covenant between the government and the
people. We give our allegiance to the government of the day and we agree to
obey the laws of the land on one fundamental condition: that our rulers act for
the common good. But we don’t merely take their word for it. Since 1689 we have
had the power to remove the government immediately and call an election by the
simple expedient of convincing the House of commons to pass a vote of no
confidence. Knowing that an immediate election can be called makes Cabinet
ministers behave differently. The power does not have to be used very often, so
long as it remains a realistic threat. The right to remove an unworthy
government did not emerge unexpectedly in 1689. Before that date we had a
tradition of deposing rulers from time to time, with the last occasion in 1688.

Many other things make the difference between a free people and a
subjugated one, but the ability to throw out the government straight away is
the single most important. It took centuries of struggle, sacrifice and
bloodshed to construct our free system. Today, the majority of our laws are
being made by officials in Brussels who can’t be ousted. They know it and they
act accordingly.

The institutions of the European Union do not even come close to
our democratic system. While our constitution is calculated to make the
government take public opinion into account, the institutions of the EU are
calculated to isolate decision makers from public pressure. They dare not make
it too obvious that we are ruled by a self-chosen elite and so they go through
some forms that resemble democracy. Most notably there is an elected European Parliament,
but the vital element is lacking: the power to depose the rulers and trigger a
general election by a simple majority vote. What’s really at stake is the
survival of democracy itself.


The common opinion as early as the thirteenth and fourteenth centuries
was that a king who would not rule according to law could be deposed. There was
no legal machinery for deposition, which effectively meant that there was a
right of rebellion against the king. The parliament of 1327 felt it had the
power to depose Edward II, and in 1399 Richard II was explicitly removed for
assuming absolute powers not recognised by the English people. Charges of
breaking the law were drawn up against him. He had made laws without
parliament, and put private lives and property at his personal disposal.
Parliament deposed him by forcing him to sign a deed of abdication.

Charles I and James II also discovered that, when they tried to
act like dictators, an English king received his right to reign from the
people. Moreover, when Charles II was invited from exile to serve as King of
England, he was trusted with a limited power to govern by and according to the
laws of the land and not otherwise.

The seventeenth century fixed sovereignty with the king in
parliament and not with the king alone. No permanent power by kings to make
proclamations had ever been recognised. It is true that in 1539 the Statute of
Proclamations had said that the king could make proclamations with the advice
of his council and that such proclamations had the force of statutes. Breaches
could be punished by fine or prison, but not life, limb or forfeiture. The act
was, however, repealed in 1547 under Edward VI, which demonstrated that
parliament was supreme. Powers could be given and they could be taken back.
Parliament cannot bind its successors. Tyranny can be undone.

Nevertheless the Stuart kings maintained the right to issue
proclamations, and Charles I used the Court of Star Chamber to enforce them,
until it was abolished by the Long Parliament in 1641. Star Chamber was a court
of politicians enforcing a policy not a court of judges administering law,
words that could be applied to the European Court of Justice today. The bill of
rights of 1689 pronounced in unambiguous words that the ‘pretended power’ of
executing laws by regal authority without the consent of parliament was
illegal.

It had long been accepted that the king could  not impose a tax without the approval of
parliament, but not only did parliament try to control the king’s revenue, it
also sought to control expenditure. As early as Henry IV, parliament had forced
the king to render accounts. Under the Tudors the practice stopped, but in 1641
parliament required accounts from Charles I. After the restoration, parliament
became even more insistent. In 1665 it made money available for the Dutch war,
but insisted that it must only be applied to the war and demanded accounts to
show where the money had gone. After the revolution of 1688 it was accepted
that the Treasury was required to spend only as parliament had agreed. A
further important stage in parliamentary control came in 1698 when the civil
list allocated income for the king’s personal use. A primary aim had been to
put limits on the ability of the king to bribe MPs with salaries and pensions.

Looking afresh at the struggles of earlier times we can see that
EU officials today are behaving in a similar manner to those Stuart rulers who
pressed absolutism to its limits.

One of the best statements of the longstanding view of the British
people is still to be found in 1915 edition of A.V. Dicey’s The Law of the Constitution. Dicey
described how our laws and conventions worked together to uphold the
sovereignty of the electorate.  There was
‘the law of the constitution’ – the enforceable laws that laid down
constitutional principles – and the ‘conventions of the constitution’ – the
habits and traditions that are observed but not directly enforced by law. The
conventions have one ultimate object: ‘to secure that Parliament, or the
Cabinet which is indirectly appointed by Parliament, shall in the long run give
effect to the will of that power which in modern England is the true political
sovereign of the State—the majority of the electors or … the nation’.

Dicey strongly maintains that the electorate is the true sovereign
of England. All the conventions that uphold the supremacy of the House of
Commons in practice uphold the ‘sovereignty of the people’. To prove the point,
Dicey examines three conventions: (1) the requirement that the powers of the
Crown are exercised through ministers who must have the confidence of
parliament; (2) the convention that the House of Lords gives way to the
Commons; and (3) the right of kings to dissolve parliament against the wishes
of the majority of MPs.

The rule that the powers of the Crown must be exercised through
ministers who are members of the Commons or the Lords and who command the
confidence of the Commons, in practice means that the elected part of the
legislature appoints the executive. It also means that ministers must
ultimately follow the wishes of the House of Commons, which in turn means they
must reflect the wishes of the electorate as interpreted by MPs.

The same is true of the convention that the House of Lords is
expected in serious controversies to give way to the will of the Commons. At
what point should the Lords give way, or should the Crown use its prerogative
to create new peers? The guiding principle, says Dicey, is that the Lords must
yield or the Crown intervene when it is conclusively shown that the House of
Commons represents ‘the deliberate decision of the nation’. And if the
prevailing view of the electorate is the vital consideration, then conventions
guiding the House of Lords and the Crown are rules ‘meant to ensure the
ultimate supremacy of the true political sovereign’, the electorate.

Dicey also shows how the right of the Crown to dissolve parliament
affirms the political sovereignty of the people. At first glance this power
looks like a continuation of earlier royal absolutism but, as Dicey puts it,
the reason why the House can be dissolved is that ‘an occasion has arisen on
which there is fair reason to suppose that the opinion of the House is not the
opinion of the electors’. In such cases 
dissolution is in its essence ‘an appeal from the legal to the political
sovereign’. A dissolution is allowable ‘whenever the wishes of the legislature
are, or may fairly be presumed to be, different from the wishes of the nation’.

He gives the examples of the dissolutions of 1784 and 1834. In
December 1783, George III dismissed the government of Charles James Fox and
Lord North and installed an administration led by Pitt the Younger. It did not
have the support of the Commons  and the
king dissolved parliament, leading to an election in March 1784. The result
vindicated his decision and Pitt’s administration was returned. The precedent
was established that the Cabinet, when supported by the king (who has the power
of dissolution), can ‘defy the will of a House of Commons if the House is not
supported by the electors’. The fundamental principle was that ‘the legal
sovereignty of Parliament is subordinate to the political sovereignty of the
nation’.

In December 1834 the king replaced Melbourne’s Whig administration
with one led by Peel. He dissolved parliament, but the election in 1835 went
strongly against Peel’s administration and the Whigs returned to office. As in
1784 it was ‘the verdict of the political sovereign’ or nation that ultimately
determined the right of a Cabinet to retain office. Indeed, all the conventions
of the constitution, according to Dicey, were ‘intended to secure the ultimate
supremacy of the electorate as the true political sovereign of the State’.
Constitutional maxims are ‘subordinate and subservient to the fundamental
principle of popular sovereignty’.

Formally the constitution described by Dicey remains in being. The
electorate is the ‘political sovereign’. But in practice power has slipped away
to the institutions of the EU, and now the majority of our laws are made in
Brussels. As we learned the hard way during the long centuries of growing up as
a free people, the essence of a democratic system is to be able to dismiss the
government of the day and demand an immediate election whenever there is good
reason for supposing that the government does not reflect the views of the
majority. Public opinion may find its voice in the Commons, which can pass a
vote of no confidence; or it can be represented by the Crown, which can
dissolve parliament and trigger an election. Dicey’s examples of the king
dismissing the government are from the nineteenth century or earlier, but the
same power has been exercised in modern times. Under the Australian
constitution the powers of the monarch are exercised by the governor-general.
In the 1970s the government of Gough Whitlam had maintained the confidence of
the elected chamber but had lost the confidence of the Australian people. It
was removed by the governor-general so that an election could be held. His
decision was vindicated by the result, which voted in a new government by a
large margin.

This precious ability to trigger an immediate election (whether by
a vote in the Commons or a decision of the Crown) has not been formally lost,
but it matters a lot less when parliament no longer makes all our laws and when
much of the executive power lies in Brussels. We now face a fundamental choice
as a people. Do we allow the erosion of our democracy to continue? Or do we
take back the responsibility that earlier generations wrenched from the grasp
of recalcitrant absolute rulers?

The issue is not the ability of the government to exercise
discretionary power as such. Governments have always had a degree of
flexibility. But under our constitution the fact that the government can be
removed immediately by either the Commons or the Crown changes its behaviour.
EU officials have been handed powers by parliament at a time when the constitutional
importance of being able to oust the government has been forgotten.

But, while our free system has been weakened, it has not yet been
destroyed, and it falls to the generations now living to be more reliable
custodians of liberty and democracy, and to restore our heritage before it’s
too late.

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