Eighty minutes on the clock, and after some dubiously-awarded penalty kicks, the side in blue shirts with yellow stars is on the cusp of victory. In a moment of high drama, Boris Johnson grabs the ball and makes one last desperate lunge. Forcing his way through the serried ranks of naysayers, he gets the ball over the line. Brexit at last? We live in hope, because our Prime Minister is playing not only the foreign opposition. His toughest battle has been against powerful compatriots who have conspired to defy the largest democratic mandate in British political history.
What has happened to our democracy and its institutions? Parliament is steered by a Speaker who has abandoned the impartiality of his time-honoured role. Over four-fifths of sitting Members of Parliament stood on a manifesto commitment to fulfill the result of the EU referendum, yet a majority refuse to countenance any departure deal. Several Europhile MPs have decamped to rival political parties yet will not stand before their constituents in a by-election (which most would probably lose). The blatantly biased Electoral Commission has pursued vexatious complaints against Leave campaigners while ignoring subversive practices by the Remain side. The BBC, our public service broadcaster, persistently pushes anti-Brexit propaganda. And a judiciary that has transgressed the separation of powers, nakedly entering the political fray to disarm the governing party.
Since the referendum in June 2016 Parliament has usurped powers from the very people that it supposedly serves.Democracy is as precious as it is fragile. As Professor Larry Diamond at Stanford University observed, many democracies have fallen by the wayside in recent decades, often because those in power have manipulated and corrupted the system: -
'If the politicians do not play by the rules of the game or if they are seen to be serving their own interests, their own corrupt interests, their own enrichment, their own aggrandisement of personal and party power rather than at least some advancement of the public good, people lose faith in democracy or conflict spirals out of control and then you get a loss of democracy by one means or another.'
In a democracy, elections and referendums are decided by majority and the decision is accepted. This is the fundamental rule of the game. AV Dicey (past professor of constitutional law at University of Oxford) emphasised in his work that 'the one essential principle of the constitution is obedience by all persons to the deliberately expressed will of the House of Commons in the first instance, and ultimately to the will of the nation'.
Much debate has ensued on the meaning of democracy. Leavers simply want the promised fulfillment of the outcome of the referendum. Remainers, by contrast, argue that in a 'representative democracy' elected politicians decide for us.But this is a distortion of the principle that Parliament serves the people, not the other way around. Writing in the Sunday Times, David Davis stated the importance of decisiveness arising from a majority decision by the electorate: -
'What many people do not understand about our system is that its abiding virtue is that it is decisive, more than it is democratic. It has essentially relied on an electoral system that gave power to the plurality, even if it did not achieve an absolute majority.'
While most governments are elected on around 40% of votes, Brexit was supported by a majority of 1.3 million (although Remainers complain that this was merely 37% of the electorate,conveniently forgetting that a massive pro-EU campaign drew no more than a third of the same population). In our democratic process, and in the referendum as approved by Parliament, the people must be obeyed. This was acknowledged by prominent Remainers during the campaign. But after the wrong result was counted, they changed their tune. Democracy is seriously imperiled by the actions of those with power and privilege, who cannot accept that their individual vote is worth no more than that of a hairdresser in Hartlepool or a curry house waiter in Corby.
The likes of Dominic Grieve, Caroline Lucas, Anna Soubry, Jo Swinson, Hilary Benn, Yvette Cooper, Oliver Letwin and Philip Hammond believe that they know best, entitle by their superior intellect and moral standards. Yet democracy is based on accountability, which holds that officials (whether elected or appointed by those who have been elected) are answerable to the people. If it is felt that power is wielded against the wishes of voters, inevitably decision-makers and the decision-making process will be resented. The determined endeavour of the metropolitan elite to remain in the EU is doubly resented: first, because it defies the expressed will of the people, and secondly because it supplicates to an unaccountable, external authority.
Meanwhile, impartiality has been undermined by officialdom, from the Civil Service to the Speaker.
The current occupant of the chair in the House of Commons, John Bercow, has gone to unprecedented lengths to usurp power from the elected government. As noted by Sir Bernard Jenkin MP, the Speaker has misused his untrammeled power: -
'The Speaker of the House of Commons has wide individual discretion over how the Commons operates, and has historically been trusted with such considerable power, on the basis that he would act in a neutral and impartial manner. However, this Speaker has used his power to interpret standing orders to change the meaning of what was intended when the standing orders were drafted, to help Brexit opponents in their parliamentary tactics.'
Sir Bernard, a member of the House of Commons constitutional affairs committee, believes that the office of the Speaker has become 'irretrievably politicised and radicalised' by Bercow, who 'is prepared to reinterpret any law of Parliament'. Famously, John Lilburne warned: -
'Tyranny is tyranny, exercised by whomsoever, yea though it be by members of parliament as well as by the king. And they themselves have taught us by their declarations and practices that tyranny is resistible'.
The people thus find themselves with no operating government and with a Speaker intent on blocking enactment of the result of the referendum. After Parliament passed a law preventing departure from the EU without a deal, Brendan O'Neill wrote on Spiked: --
'Tonight's vote by MPs to seize control of the parliamentary agenda in order to prevent a No Deal Brexit is not, as they claim, a wonderful assertion of parliamentary sovereignty against a dictatorial executive led by Boris Johnson. No, it is an assertion of the political elite's arrogant authority over the people. If MPs have seized power from anyone this evening, it is from us, the public, the millions who voted to leave the EU. This is not parliament vs the executive – this is parliament vs the people, and it opens up one of the greatest, most troublesome constitutional crises of modern times.'
There is no halfway house.Government with consent of the people, with proper accountability and periodic and genuine elections – that is democracy.Government without consent of the people, without accountability and without periodic and genuine elections – that is tyranny.Let us recall the words of prominent Labour figure Peter Shore, who told the Commons in 1972: -
'Our tradition for order and peaceful change is based not only on the character of our own people but on an enduring, if tacit, bargain between Government and governed that the former will play fair and will be scrupulous in how they deal with the people's rights. But if Governments do not play fair, if they behave in a way people consider to be in itself unconstitutional, there is evidence enough in British history to show we are not a docile people but a very determined and fierce one indeed.'
The referendum, Remainers tell us, was merely advisory. Yet they promote a second referendum, which would of course be rigged, with the slightest margin of a Remain majority to suffice as a 'final say' (so much for 'advisory'). It is surely advisable that the political establishment respects and enacts the original 'people's vote', or its legitimacy is lost.
Innate to humankind is a sense of fairness and justice. What can be done to repair the damage wreaked to our political system over the past three years? If all apparent failures of our democracy are seen by the people as being scrutinised by impartial, objective and competent persons with a view to rectifying our now discredited system, then the tradition for order and peaceful change may prevail. After the constitutional crisis caused by vandals of democracy, radical reforms may be needed.
To this end, a Royal Commission of Enquiry should be established once Brexit is officially executed.This must not be an exercise in kicking a controversy into the long grass, or the political and judiciary establishment marking their own homework. The enquiry would be led by a judge of utmost integrity, preferably not from these shores, or from other Western countries of supposedly 'progressive' outlook. Instead, a legal expert should be appointed from a country known to be plagued by political corruption (unlike the masked debasement of Western democracies). From South Africa, perhaps. He or she would know the territory, and what to look for.
In ethnography, two perspectives are taken on the study of society, its institutions and rituals. The researcher begins with an 'emic' view, immersing in the culture and to some extent 'going native'. Then the researcher steps out to analyse the fieldwork, producing an 'etic' understanding through comparison to other cultures, observing similarities and differences and making sense of apparent absurdities. A judge absorbed in Western liberal culture will be strong on emic but weak in the ultimate etic.
A robust and rigorous Royal Commission would help us to understand our democratic downfall and show how to put it right. And it must have teeth. In some cases, misconduct in public office may be prosecutable. But let us not pre-judge…
The author is grateful to Ian Geering QC for instructive advice on this article.
 A V Dicey (1915): Introduction to the Study of the Law of the Constitution. http://lf-oll.s3.amazonaws.com/titles/1714/Dicey_0125_EBk_v6.0.pdf .