Arcane Procedural Rules are What Protect Us from Tyranny

In a televised address on Wednesday evening, UK Prime Minister Teresa May blamed Members of Parliament for the apparent failure to obtain an agreement on withdrawal from the European Union. In the course of her address she made two remarkable statements. First, she indicated that members of Parliament, all of whom had been elected in 2017, were acting against democracy and the democratic will of the people and that she alone was acting in their interests. Secondly, in a thinly veiled attack on the Speaker of the House of Commons, she blamed her inability to move forward on “arcane procedural rows”.


The reference to arcane procedures is clearly directed at the decision of Speaker John Bercow who had determined that the government could not introduce, a third time, the same proposal to the House of Commons that had been rejected by the House on two previous occasions. In making his ruling the Speaker relied on 400 years of precedent. These precedents are firmly rooted in concepts of parliamentary sovereignty, responsible government, and checks on attempted abuses of authority by the Crown. Parliament is a check on government power not a checkbox for its exercise. It is not permissible for the Crown (the government) to browbeat elected representatives into submission.


In addition to the difficulties in moving the Brexit file forward, the Prime Minister has attempted to diminish the significance of Parliament, which is the anchor for the British Constitution. The concept of parliamentary sovereignty whereby Parliament makes the laws as well as holds the government to account is considered by many as the foundational guiding principle for the British constitution. For the Prime Minister to attack that institution as being undemocratic and unrepresentative of the people of United Kingdom is to attack the British Constitution itself.


The attacks by Prime Minister May on Parliament and its ability to thwart the will of the government, or at least to support the government’s agenda or position on a particular issue or policy is not unique to the United Kingdom. The government of former Canadian Prime Minister Stephen Harper was found in contempt by the House of Commons and lost a vote of confidence on that finding. In the early days of the subsequent election campaign the position of the House of Commons was dismissed by him as a mere procedural speed bump. The dismissal of elected representatives and the institutions that they are elected to as mere obstacles to government and that are only interested in procedural game-playing is to attack democracy and the people themselves. It undermines the Constitution and the confidence that the population needs to have in their representative institutions as both legislators and checks on overreaching authority of governments.


It may be argued that this is now somewhat less significant in Canada since individuals have the ability to curb the abuses of government by challenging government decisions in the courts on the basis that such abuses constitute an infringement of individual constitutional rights. The Canadian Charter of Rights and Freedoms, enacted in 1982, provides some judicial backstop for the protection of individual rights and freedoms as against certain acts by the government. Since then there has been a marked shift in public perception and approach to major constitutional issues from Parliament to the courts. This, along with the centralization of authority in the Prime Minister’s office and social media with its perceived democratization, has strained relationships between prime ministers and the House of Commons. It also seems to have diminished respect for the House of Commons as an institution. But at least, some will argue, the courts have been brought into the constitutional equation to fill the gap left by a perceived lessening of parliamentary accountability.


With Brexit, the same cannot be said the United Kingdom. It is only because of United Kingdom’s membership in the EU and the European Commission that the rights of individuals in United Kingdom are legally protected from government abuse through the Human Rights Act, 1988. Assuming that Brexit occurs, the intention or consequence will be that recourse to such rights protection may be lost or altered significantly. As a matter of constitutional law in United Kingdom will primarily revert to a constitutional system in which parliamentary sovereignty, in some shape or form, will become once again the cornerstone of the British Constitution. The same institution that the Prime Minister denigrated and attacked will become the institution responsible for the protection of rights freedoms and liberty of the people of the UK and its “arcane procedures” will be the bulwark of protection of those rights freedoms and liberty. To attack the institution and its centuries old procedures designed to protect against the abuses of authority when it will be the primary institution responsible for establishing the way forward for the protection of rights and the accountability of government as a result of Brexit espoused by the government seems somewhat perverse.


It is important that the UK Parliament continue to take its role seriously and to ensure that its rules, practices, and procedures are respected now. If Parliament cannot use its “arcane procedures” to protect itself and the people its Members collectively represent from the abuses of government then there is no telling how future bullying by government will be met. If Parliament fails to adhere to its own practices and procedures and allows the government to belittle and undermine its authority and sovereignty now, one must ask how it will maintain or recapture its authority once Brexit has occurred. Nothing but how the rights freedoms and liberties of the UK population will be protected, and by whom, is at stake.

Leave a Reply

Your email address will not be published. Required fields are marked *