If you heard someone claim that a powerful and unaccountable institution was trying to take control of the law away from the British parliament, you might assume you were talking to a Brexit campaigner in 2016. But you could equally be listening to the complaints of an English lawyer in 1616.
The idea of parliamentary sovereignty is a key battleground in the EU referendum. But anxieties about power being taken away from the national parliament did not begin when Britain joined the EU. Attempts to protect the sovereign power of parliament are much older, and can be traced to the early 17th century.
The ugly portmanteau term “Brexit” may be new, but we’ve heard all the arguments before. And their history can help us understand why feelings are running so high in the run up to June 23.
Sovereignty now and then
The Leave campaign argues that a large proportion of British laws are actually set by the EU. They consider this an erosion of British parliamentary sovereignty because these laws were never voted on in the British parliament. Simply put, they say EU control is not “democratic”.
The Leave campaign has a simple definition of sovereignty: the only laws that should apply in Britain are those made by the British parliament. This didn’t spring from nowhere. It is a creation of the early 17th century, when lawyers and MPs began insisting – loudly – that parliament, and only parliament, had the power to create or set aside law.
Early modern lawyers emphasised this position not because of a foreign threat, but an internal one – the Stuart kings, James I (1603-25) and Charles I (1625-49).
These two rulers were perceived as attempting to make law without the agreement of parliament, and contrary to the welfare of the people. They were believed to be introducing non-native, “continental” ideas about royal power into Britain – ideas that gave absolute power to a king, and none to his subjects. Those fears caused a constitutional crisis.
Just as modern Brexit campaigners are outraged by the sums that the British taxpayer supposedly hands over to Europe, for example, so early 17th-century parliaments were angered by James I’s decision to impose high import duties without consulting parliament.
In response to actions like this, lawyers and parliamentarians went back to their history books. They wrote histories of parliament, tracing the origins of the institution back, beyond the Norman Conquest, as far as the Anglo-Saxons or, in some cases, ancient Britons.
They claimed that – according to tradition – there were strict limits to what the royalty could impose without the agreement of parliament, especially when it came to taxes and tariffs.
Common sense and Englishness
In their writings, these authors didn’t just create the concept of parliamentary sovereignty. They put forward a set of ideas which Leave campaigners are borrowing today, probably without realising it.
The first is that by guarding traditional laws and liberties against tyrannical kings, parliament was protecting the ancient inheritance of all English people. Many Brexit backers believe Britain is again losing its freedoms and traditions, this time, to the EU.
The second is that parliament and law are closely connected. This may seem an obvious point to make but that hadn’t always been the case. It was only in the 17th century that parliament became primarily a place of law-making rather than a debating chamber or a council to advise the monarch.
The third is that English law, as made in parliament, was defined by reason and common sense. Because laws were old, they were considered to be reasonable: good law lasts. The point was emphasised in a speech made by the MP Thomas Hedley in 1610, who defined English law as:
the best reason or the quintessence of reason, reason tried and allowed by the wisdom of time for many ages together to be good and profitable for the commonwealth.
For critics of the EU, Brussels law is unreasonable. They say the EU wants to ban bendy bananas, certain flavours of crisps, or bagpipes. Most of these claims have been systematically debunked but drawing attention to them sets up an opposition between EU madness and implicitly reasonable British practice.
This argument is particularly powerful when we’re talking about items that are close to British identity, like bagpipes, or smoky bacon crisps (apparently a British favourite).
All these 17th-century debates helped build the British parliament as it is today, and revisiting them reminds us that the question of whether to leave or remain in the EU isn’t a straightforward economic argument – it’s also a question of 400 years of emotional investment in the meaning of parliament.