Fixed-term parliaments make an old constitutional conflict around Brexit even harder to resolve

In practice, significant constitutional laws have passed unaccompanied by either an election or referendum.

The British constitution’s strength has been allowing politics to adapt readily to changed circumstances. Its concurrent weakness is that this ensures constitutional change is fraught. This deficiency explains some of the present constitutional stalemate over Brexit. Parliament legislated for the constitutional issue of EU membership to be decided by a referendum in 2016. But it is now confronted with the problem that a good many on the losing side, including some MPs, will not accept that a majority-wins referendum can or should decide something as important as leaving the EU.

By itself the principle of parliamentary sovereignty must permit parliament to legislate for constitutional change that lacks sufficient support from voters. Consequently, procuring consent requires a distinction between parliament’s sovereign legal authority and its political authority. The constitutional theorist AV Dicey argued that parliament had to possess political authority to legislate for constitutional change and that this political authority had to come from either a general election largely fought and won on the constitutional issue at stake, or from a referendum.

In practice, significant constitutional laws have passed unaccompanied by either kind of poll and without subsequent dissent. Universal male franchise and votes for many women were enacted in 1918 by a seven-year-old parliament and with no party having advocated all the changes in the preceding general election, let alone the largest party. In this case the First World War created a lasting cross-party consensus.

In more recent instances, deep disagreement around the change has in time materialised. Neither the 2005 Constitutional Reform Act, which abolished the Law Lords and established the UK Supreme Court, nor the Fixed-term Parliaments Act represented an emerging concurrence of opinion. The Blair government issued a press release during the course of a cabinet reshuffle in announcing a desire to establish the Supreme Court. A large parliamentary majority enabled Blair blithely to remove the judiciary from parliament. Parliament’s lack of constitutional foresight allowed the party that had won the most seats in the 2010 election to legislate for a change – the Fixed-term Parliaments Act – that had, in a different version, appeared only in the losing parties’ manifestos.

But the present stand-off does have a history: in many ways we are simply resuming hostilities in the same constitutional conflict that the start of the First World War suspended. The January 1910 general election returned a minority Liberal government to power after Herbert Asquith had dissolved parliament when the House of Lords voted down David Lloyd George’s Budget. But first Edward VII and then George V said they would not create more Liberal peers to stop the Lords defeating the government’s new bill to limit its powers unless another general election took place.

At the subsequent constitutional conference, Liberal and Conservative representatives tried to agree statutory rules distinguishing between ordinary legislation where parliamentary sovereignty applied and constitutional legislation where additional political authority was required. The conference foundered primarily over where home rule for Ireland sat.

Ireland’s secession, and devolution for Northern Ireland, rendered the consent problem dormant for 50 years. It was the European Communities Act in 1972 that reawakened it, and the demands of EU membership from the Maastricht Treaty onwards that kept it energised. Joining the EEC marked a momentous constitutional transformation. Yet the Heath government insisted that parliament had the authority to legislate for accession without a referendum or an election in which the Conservatives had made a manifesto commitment to joining the EEC. By contrast, it was because Harold Wilson, as Labour leader, thought accession via parliamentary sovereignty alone was a constitutional travesty that he insisted on a retrospective referendum (in 1975) when Labour returned to power.

Maastricht reopened the problem as the first of a run of EU treaties culminating in Lisbon that by changing the EU’s constitution changed Britain’s too. Since the specific content of EU treaties could not have been promised in a general election manifesto by any Westminster party, and since applying the principle of parliamentary sovereignty ran afoul of the fact that treaties bound the next parliament, EU treaties logically necessitated a referendum. Parliament finally recognised this reality when it passed the 2011 European Act, which required a referendum in the event of any future EU treaty that transferred further powers to the EU.

The act of leaving should in principle re-open the possibility of relying on general elections and a manifesto commitment. But this route will still cause tribulations.

What is proposed during an election campaign and the legislation that materialises may well diverge, and disentangling what has and hasn’t been supported when a party scores an electoral victory can be near impossible. Prudence, historically the cardinal constitutional virtue, would still create an obligation for governments eschewing a referendum to allow for a general election before legislating for constitutional change.

In taking away the prerogative power to dissolve parliament, the Fixed-term Parliaments Act makes such caution impossible without co-operation from the opposition. It is a dreadful irony that this legislation, already conceived and passed in a manner that would have horrified Dicey, has disabled a primary means for facilitating judicious constitutional change in a constitution that struggles with this very predicament.