Sionaidh Douglas-Scott: Brexit, the Referendum and the UK Parliament: Some Questions about Sovereignty

“Bruce Ackerman, writing in 2011, suggested in the London Review of Books that major constitutional issues should be put to the voters twice before enacted into law, and that this would help the thoughtfulness of voters’ decisions. Ackerman also warned of the dangers of referenda systems: ‘a poorly designed system could serve as a platform for pandering to the worst instincts of the public, as countless demagogues have shown since Napoleon first demonstrated the abusive potential of referendums in the aftermath of the French Revolution. At present, Britain is drifting down this path.’”

UK Constitutional Law Association

Sionaidh Douglas-ScottSo, we have the result of the Referendum, and a majority of voters have voted to leave the EU. A mantra of Leave campaigners seems to have been the desire to ‘take back control’. There has been much talk of sovereignty, although less clarity on what it actually means. However, at its most basic, there are at least three notions of sovereignty that are relevant in the context of Brexit, and they are often confused. The first is parliamentary sovereignty, which is said to have particular resonance in the UK because, due to the vagaries of the uncodified UK Constitution, the Westminster Parliament has been recognised as a body with unlimited legislative power. Yet the parliamentary sovereignty of a representative democracy may seem to be at odds with popular sovereignty as exercised in a referendum. Popular sovereignty also has other implications, such as in Scotland, where an indigenous Scottish tradition…

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