A previous lecture delivered in Melbourne in May 2019 dealt with Brexit in the longer term – how relations with Europe changed since 1945, from ambivalence to membership and back to ambivalence. In this lecture, also in Melbourne, in November 2019 I turned to some major issues which have been opened up and need to be resolved
THE MEANING OF DEMOCRACY
A referendum is a form of plebiscitary democracy that is not easily reconciled with representative democracy.
Until 1970s, a referendum was thought unconstitutional because parliament was sovereign. The constitutional lawyer AV Dicey argued in the later nineteenth century that judges know nothing of the will of the people except as expressed in an act of parliament.
How is a decision reached on what is an appropriate issue for a referendum? One view is that is should only be used for a constitutional issue, which begs the question of what is the constitution? In reality, referenda have been used for tactical reasons related to party discipline, and not really to show the will of the people.
When used, referenda could therefore only by advisory and not binding – though in 1975 and 2016 executive decided that they would be bound.
Referenda can work for a binary choice. I have recently experienced three: one is the referendum on the EU in 2016, and the others were
Australia 2017: same sex marriage, yes or no
Switzerland 2018: should cows have their horns removed, yes or no
A simple binary vote was inappropriate for membership of EU, for there was no clarity over what ‘leave’ meant. The choice was likened to vote: yes or no to the question ‘shall we go to the cinema’. When ‘yes’, a choice then has to be made whether the film is The Sound of Music or The Texas Chain Saw Massacre.
An appeal was made to the ‘will of the people’ which MPs were meant to carry out – even if that was true, how was one to interpret what the ‘will’ actually is? And is it the overall vote (52 per cent leave) or that of the individual constituency or – very importantly since devolution – the constituent nations of the United Kingdom?
Take the case of Dominic Grieve, the MP for Beaconsfield, a leading supporter of membership and former Conservative Attorney General. To some, he was a ‘traitor’ for going against will of people – but his own constituency voted 51 per cent remain. In any case, Edmund Burke is buried in Beaconsfield churchyard, and he informed the voters of Bristol in 1774 that an MP was not a delegate but a representative or trustee who served the public or national interest: “his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. … Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion”. A trustee exercises his own judgment in making decisions about what should be done. “You choose a member, indeed; but when you have chosen him, he is not member of Bristol, but he is a member of Parliament”.
Referendum mean setting this principle aside.
Another issue is the time scale for a referendum. Calls were made for a second referendum on two grounds:
- We would not know what sort of leave would be
offered until a deal was negotiated. One
would not buy a house if the survey found it had serious flaws; and a trade
union would put a deal to a vote after a strike
- The electorate changes: younger and more educated larger share of electorate, more in favour of remain
The view that the ‘will of the people’ can only be expressed is in tension with democracy as a process in which the losing side can continue to campaign. This disagreement is very deep and dangerous. It also led to hypocrisy, for Nigel Farage of UKIP said that if he lost 48/52 he could continue to fight; when he won 52/48, calling for a new referendum was treachery by bad losers.
Referenda are a sign of failure to handle complex political decisions. Difficult issues should be resolved by handling complexities with a continuum of views that are argued out within parties and parliament to reach a compromise that few would choose as their preferred option but which the largest number can accept as tolerable. Parties traditionally played this role as mediators between the state and citizens. Referenda stop this process and by-pass the political process of politicians accommodating the widest range of opinions by giving it to individual electors who have no reason to consider any opinion except their own, and which leads to a stark divide in which 48 per cent are no longer the British people but are portrayed as enemies/traitors/saboteurs. As one member of the public said on television, the vote on 23 June 2016 was clear and there should be no remainers left. In the opinion of Jonathan Sumption, the former judge on the Supreme Court, ‘This is the authentic language of totalitarianism. It is the lowest point to which a political community can sink short of actual violence’. More immediately, such views created difficulties for parliament as it turned to the messy business of compromise which was blocked by the outcome of the referendum.
The British constitution is unique, for it is not written other than eight words: ‘whatever the Queen in parliament enacts is law’. It is historical and not legal. There are no constitutional limits on the power of parliament which is sovereign; the exercise of powers is a matter for ministers answerable to parliament and ultimately to the electorate. There is no fundamental law that parliament cannot repeal or alter at will. Is this dangerous and open to abuse, for it relies on conventions which can be broken – or is it a source of flexibility? We should also note that English and Scottish parliamentary sovereignty are different: prior to the Act of Union of 1707, the executive in Scotland was not accountable to parliament so why should the united parliament of Great Britain only accept the English principle?
Joining the EEC/EU did set a higher body above parliament and in that sense the Brexiteers are right. It was not really considered at the time, but it was apparent after 1991 that there was a shift from a historic to a legal constitution. Does it matter?
- To some, it matters a lot: continuing sovereignty means that a sovereign body cannot bind itself
- To others, it does not mattera lot: self-embracing sovereignty means a sovereign body can agree to bind itself.
Arguments over the ‘will of the people’ can lead to a claim that the people are against the courts and against parliament. There were two legal challenges to the role of the executive:
- The decision of three judges that parliament
needed to vote to trigger article 50 (for departure from the EU) and could not proceed
simply by the executive sending a letter.
A Daily Mail headline 4 November 2016 called them ‘Enemies of the
- Whether Prime Minister Johnson misled the queen in proroguing parliament in September 2019: the High Court in England ruled it was a political decision and permissible; the court in Scotland found it was misleading advice. The Supreme Court of the UK ruled against Johnson and stated that the act of prorogation never happened.
Both judgements cited cases going back to Charles I and civil war and raised serious constitutional issues:
- What is ‘justiciable’? What is the line between a political decision/judgement and what the courts can decide? Sumption argued prior to the case that judges had been intruding into political issues: they are unelected and unaccountable, and should not intrude on political decisions which are, as we said earlier, about reaching compromises. But the night before the decision on prorogation, he remarked on BBC that Johnson had taken a hammer and sickle to the constitution, and it was justiciable issue.
- What is the role of the monarch? Sovereignty was vested in sovereign until 1688/9 when rules were introduced to limit the power of the monarch over parliament. The issue now is that the monarch has no authority to take an independent judgement over executive and merely does as executive says, as happened when the queen accepted prorogation until it deemed never to have happened by the Supreme Court.
These issues are now open:
- What form should the constitution take?
- Is the solution a written constitution? Dominic Grieve thinks so. It would clarify the role of judges; conventions only work if they are followed and not broken. Can we have a constitutional court as in Italy (15 judges for 9 years, 5 appointed by president, 5 by parliament and 5 by judges)?
- Or will it lead to inflexibility as in US? The unwritten constitution in the UK can handle unexpected issues – a written constitution gives more power to unelected judges and hampers the process of finding compromises. In US, the Supreme Court makes law by the use of the Due Process clause of 14th amendment which can be used illiberally (for example, to stop collective bargaining) or liberally (for example, to approve abortion which has never been legislated on as in UK).
A political constitution is better than a legal constitution.
- What is power of head of state? Queen cannot express her own view, unlike president in Italy (as in recent decision over snap election) or Germany. The monarchy is likely to survive – in which case, should there be a constitutional court in place of the Privy Council?
- The House of Lords is the largest second chamber in the world and is not elected (with the oddity of hereditary peers electing some of their number). The remainder are appointed by the PM. Would something like the German Bundesrat or federal council work, which has representatives of 16 Lander?
- The failure of parties to reach compromises through the political process reflects a decline in membership from the post-war period when there were about 3m members of the Conservatives, a million individual members in Labour plus affiliated unions. Boris Johnson was effectively chosen as PM by 150,000 untypical Tory members voting on their leader. Possible solutions:
- Proportional representation to give more voice to small parties so not excluded; encourage process of finding compromises. Almost came in 1918; the UK is now the only European country with first past the post elections.
- Open primaries for the choice of candidates so that it is not left to a small number of members and entrists. Some Conservative candidates were chosen in open primary by all electors: Sarah Wollaston in Totnes was not even a party member (though she later defected to the LibDems).
DOES THE UNION HAVE A FUTURE?
I think the answer here is that it does not unless a new settlement is reached.
There is an Irony that the Conservative and Unionist Party might lead to a destruction of the Union. Let’s consider the situation in Ireland.
The Good Friday Agreement of 1998 is de facto part of the constitution of the UK like the bill of rights of 1689. Now there is tension between leaving the EU and commitments in the agreement. Tony Blair, one of the architects of the agreement, has said that “It is a shame and an outrage that peace in Northern Ireland is now treated as some disposable inconvenience to be bartered away in exchange for satisfying the obsession of the Brexiteers with wrenching our country out of Europe”.
In the 2016 referendum, the issue of the relation of Northern Ireland with the republic of Ireland was not given much attention, and if mentioned was dismissed as trivial. It turned out to be the major stumbling bloc that reflected a lack of understanding of both history and simple economics.
Astonishingly, Karen Bradley, the Secretary of State for Norther Ireland in 2018/19 commented that ‘I didn’t understand things like when elections are fought, for example, in NI – people who are nationalists don’t vote for unionist parties and vice versa’. She then added that killings by the army and policy were not crimes, during the hearings on Bloody Sunday when the army fired on a crowd.
There is also the issue of the customs union: there are no tariffs on goods within the customs union, and a single common external tariff against the outside world. The Norther Irish/Irish border then becomes a customs line, yet the Good Friday agreement says that the island of Ireland is to be a single economic unit. Goods could enter Northern Ireland at potentially lower tariffs than levied by the EU (or with different phytosanitary standards) and move into EU via Ireland; could hormone injected beef from US which is banned in the EU secure access? Boris Johnson simply swept the issue aside. But thee is a serious issue that when the UK leaves the customs union, a hard border will be needed with Ireland that breaches the Good Friday agreement. The solution in Teresa May’s deal was a backstop which potentially keeps UK within customs union so that it would not be able to strike its own trade deals and regulatory standards. It was rejected. The alternative is a border down Irish Sea which is not accepted by the Democratic Unionist Party since it cuts NI from the rest of the UK.
The Northern Ireland Act, 1998, obliges the secretary of state to call a border poll ‘if at any time it appears likely to him that a majority of those voting would express a wish that NI should cease to be part of the UK and form part of a united Ireland’.
How is the secretary of state to decide? Is it a majority in opinion polls; a Catholic majority in census; a nationalist majority in the Assembly; or a vote by the Assembly?
If the referendum is called, a referendum must be held in the Republic on the same day on unification; and if both passed, a second referendum is needed in the Republic on an amendment to the Irish constitution. What happens if the votes differ?
Then there is the issue of Scotland where pressure exists for a second referendum on independence. Why should Ireland have ability to remain de facto in the customs union and not Scotland?
A prediction is that unification of Ireland is very likely and independence for Scotland is possible. Regardless of what happens, the existing levels of devolution in Northern Ireland, Scotland and Wales means that England constitutionally does not exist. Local government is complicated and dysfunctional. There is a sort of quasi-devolution to mayors in Greater London Authority and Greater Manchester, but it is all ad hoc. Could there be regional assemblies which could then create something like the Bundesrat? England is the only part of the UK without a separate voice. The West Lothian question of Tam Dalyell has not been answered: an English MP cannot vote on health care policies in West Lothian, but a Scottish MP can vote on health care policies in West Bromwich.
A new act of union is needed for a federal system
The issue of the customs union arose over Northern Ireland and the issue still remains unresolved over what sort of trading environment should be adopted.
- One view is that close alignment is needed because of integrated supply chains in the car industry; logistics of drugs/food – most trade is with Europe.
- The alternative view is that freedom outside customs union is needed to make trade deals in a free buccaneering spirit with growing economies. The suspicion of opponents is that it is about deregulation – trade deal with US mean chlorinated chicken, hormone injected beef, weaker environmental or labour standards; threat to NHS.
There are problems here:
- Constitutional issues: phytosanitary standards are devolved to Scotland and Wales, so they could refuse to accept chlorinated chicken even if it was agreed in trade deal with US.
- Trade on WTO rules is seen as the solution – but the UK needs to secure a seat apart from the EU [it did in February 2020]. And why should a country of 66m be able to strike a better deal than a bloc of 508m? The EU-Canada deal took 5 years and the UK is a more complex economy.
Problems are already apparent:
- A fall in inward investment.
- Threats to integrated supply chains
- Hit to universities in loss of European Research Council grants
- Costs of additional paperwork calculated by HMRC as £15bn [gross saving from leaving by Brexit supporters put at £18bn]
- Lack of attention to services/passporting rights – what mean for financial services?
The real issues in 2016 did not relate to membership of the EU and Brexit but to genuine grievances which must be addressed – the rise in inequality, growing precarity for many workers, the impact of deindustrialisation and austerity. Leaving makes solving these problems more difficult. Brexit was an answer to the wrong question – how to deal with people who were genuinely aggrieved.
We do need a long hard look at constitutional arrangements which require high level of statesmanship.
Talk of ‘getting Brexit done’ was likened by one female journalist as saying ‘Let’s get child-birth done’ in order to return to sleep, reading novels, and going to the cinema. But like motherhood, it is just the start of negotiations of the details, with another deadline at the end of 2020. Four years after the referendum, much remains uncertain.