Every society, even the most primitive, has laws and lawmakers. Across the globe the arrangements for government, the relationship between those vested with power and the citizen, and how his or her rights are enforced all depend on the constitution. Although we may not think about it very often, in every society, in any part of the world, the constitution impinges on daily life.
After Brexit the question of whether our constitution should continue in its present form could arise in the context of the possible breakup of the United Kingdom. One further obvious question is how, if at all, referendums should be fitted into our constitutional arrangements. I cannot disguise my concerns about referendums. My strong preference is for parliamentary responsibility.
Our present Brexit problems result from a head-on collision between two democratic ideals. You can espouse democracy through a plebiscite, and accept the result as decisive. Or you can espouse it through the democratic election of representatives to an assembly, here, of course, parliament. But unless the constitution spells out the precise processes (for example, what majority is required?) and the constitutional authority of referendums, (when does the result bind the legislature?), then when both systems are employed simultaneously to resolve the same problem, the risk of accident is obvious.
"It's like a circus, where two horses go round and the skilful rider stands with one leg on each—but in UK politics the horses travelled in opposite directions"In the House of Commons today there seems to be a majority in favour of Remaining. That clashes directly with the majority in the referendum for Leave. So it’s rather like a circus, with two horses going round the arena, with a rider standing with one leg on each. Provided the horses are travelling in the same direction the skilful rider stays on. Our problem is that the two horses, referendum and assembly, travelled around the arena in opposite directions. The result is chaotic: hence all those headlines we have seen during the course of the negotiations, using words like “shambles,” “farce” and “laughingstock.”
Referendums are foreign to our constitution. With the arguable exception of those which address the question whether one or other of the different nations within the United Kingdom should become independent, every referendum we have had has been the result of political decisions, taken for political reasons by the party of government. In short, the referendum has been used not, as it is in Ireland, as a proper constitutional measure, but as a political device. Wilson’s referendum about the European Community in 1975 was a device to avoid a split in the Labour Party. Cameron’s referendum was a similar device intended to avoid a split in the Conservative Party. I cannot help feeling that the whole idea stemmed from a total misjudgment of what the electorate would decide. But it does show that if those with power mess about with the constitution, it can bite back.
If we want to adopt the referendum process it can be done, like the recent fixed five-year parliamentary term, by statute, in writing, and made constitutionally enforceable. But if we do this we must make sure that it is embedded in clearly understood principles within our constitutional processes, not waved into action by a magical prime ministerial wand.
What about referendums of the future? The technology certainly will exist which would enable every citizen to vote on every issue, by pressing a button on the computer at home. And the easy argument that this is truly democratic would be advanced with great persuasiveness. Easy indeed, but, counterintuitively, likely to produce a mighty, powerful executive to implement the results, yet without responsibility for the decision (which would have been made by “the people”), bound to ignore the interests of the minority, and providing the perfect process for the evolution of an authoritarian constitution. Such an executive would assert the need for more powers to implement the “will” of voters, proudly claiming to preserve our liberties while inevitably subverting them.
The constitution does not work automatically. We should not take it for granted. Avoid the rose-tinted spectacle approach that says “this is England” or “this is Great Britain,” so everything will be alright. Ultimately tomorrow’s constitution will depend on tomorrow’s citizens, and their determination to preserve it.
Igor Judge was Lord Chief Justice and Head of the Judiciary from 2008-2013
