Professor Denis Galligan of the University of Oxford Law Faculty challenged some widely held myths at play in the ongoing constitutional crisis triggered by Brexit in his lecture at Wolfson College last week.
In the lecture, entitled The Constitution in Crisis 2016, Professor Galligan outlined the key principles in our system of representative democracy and parliamentary sovereignty, addressing the central and nuanced relationship between ‘the people’ and Parliament, as it has evolved over the centuries. In doing so, he drew a parallel between the current constitutional crisis characterized by conflicts between Government, Parliament, and the Courts; and the situation in a largely forgotten period of English history following the English Civil War, when the Putney Debates were held in 1647.
Then, almost 370 years ago, with the King in captivity, government practically ceased, and social and political chaos prevailing, ordinary members of the New Model Army, together with a group of liberal radicals called the Levellers, challenged the existing order through an unprecedented series of debates that overturned centuries-old power structures and paved the way for a new constitutional order and representative democracy through parliamentary sovereignty that we cherish to this day.
It was to this principle of parliamentary sovereignty that Professor Galligan returned in considering today’s constitutional crisis brought about by the vote to leave the European Union. As the UK Supreme Court considers its verdict on the government’s challenge to the High Court ruling that it does not have the power to trigger Article 50 to leave the EU without parliamentary approval, Professor Galligan advised that, “To accept the referendum as binding would be a change of constitutional principle, an abdication of Parliament's responsibility to determine what is best for the nation, all things considered.”
Over the course of the lecture, Professor Galligan demonstrated how the doctrine of parliamentary sovereignty become the foundation of the constitution, and examined the tensions inherent between the conflicting demands on Members of Parliament to both act as representatives of the will of the people, and to act in a more considered way to uphold the overriding public interest and serve the common good.
This somewhat circumscribed conception of representation has been challenged in recent decades by competing demands for more direct forms of democracy and less reliance on public representatives, who are widely distrusted by large sections of the population. On this point, Professor Galligan offered the view that referenda are only one of a number of mechanisms by which the people can have more say in matters of state.
Professor Gallian concluded with the prediction that scrutiny of the relationship between the people and parliament will only become more intense in the years to come. He proposed that, if constitutional reform is deemed to be necessary to accommodate the growing sense of dissatisfaction with the existing form of parliamentary democracy, that any such reform be considered and deliberate, “neither by the ambush of an irresponsible Parliament, nor through the back door”.
The lecture was delivered as part of a two-day workshop entitled Beyond the Liberal Constitution: European Voices of Dissent and the Constitutional Consequences, which explored the rising tides of discontent with the political order among citizens across Europe and the United States, and the resultant resurgence of charismatic, populist, and often illiberal nationalist leaders.
Podcasts of the lecture and a selection of the workshop presentations, including those on the response of the EU in the wake of Brexit; the rise to power of President Trump in the United States; and the increasing authoritarianism and conflict with the Kurds in Turkey under President Erdoğan.
The issues addressed in Professor Galligan’s lecture will be taken up in a restaging of the Putney Debates for the age of Brexit, to be held at the venue of the original debates 370 years ago.
The Putney Debates 2017: Constitutional Crisis in the United Kingdom will be held at St Mary’s Church, Putney, on 2–3 February 2017. A panel of leading figures, including Professor AC Grayling, Baroness Onora O’Neill, and the founders of The Constitution Unit – Professor Robert Hazell CBE – and openDemocracy – Anthony Barnett – will debate the constitutional challenges that confront us today.
You can buy tickets at a Early Bird discount rate until the end of December 2016 at the link below.