Britain faces its most severe constitutional crisis since 1688. But while the Glorious Revolution established the primacy of parliament, the Brexit Revolution threatens to subsume it under populism.
This populist revolution has a constitutional cause. It is the detachment of referendums from parliamentary democracy.
In the same way that parliament transferred the selection of party leaders to activists without realising the impact this would have, so too it ceded policy determination over Brexit to direct democracy, again without realising the implications in the event that a referendum went against considered parliamentary opinion.
It was misjudged to hold referendum on Brexit without considering what would happen in this event, and without any plan either for Brexit itself or for how it would be taken forward if it won.
Rather like the evolving “activist supremacy” rules for selecting party leaders, the 2016 Brexit referendum was a mutation on a referendum system which started in Britain in the 1970s.
The first three referendums in the 1970s were to confirm proposals already agreed by parliament—membership of the European Community, and devolution to Scotland and Wales. EC membership was supported two-to-one in a 1975 referendum; devolution was rejected in Scotland and Wales. In the case of Scottish devolution, there was a majority among those voting (51.6 per cent to 48.4 per cent), but the “Yes” vote failed to meet a threshold imposed by parliament of 40 per cent of the entire electorate. Had the same threshold requirement been in place for the 2016 Brexit referendum, Leave would not have “won,” because the 52 per cent Leave vote represented only 37 per cent of the electorate.
No referendum was held under Thatcher or Major. The Blair government held no UK-wide referendum, but enacted some key decisions on establishing devolved institutions (the Scottish parliament, the Welsh assembly, the Northern Ireland assembly, the Greater London authority and mayor and a regional assembly for the north east) contingent on endorsement by referendum. In all these cases except the north eastern assembly, this endorsement was forthcoming.
The north eastern assembly was the project of deputy prime minister John Prescott, not a first-order project of Tony Blair and his government at large, and its rejection caused barely a ripple.
However, in retrospect this 2004 referendum marked a constitutional watershed. In every previous referendum parliament first passed legislation in favour of the proposal in question, then used a referendum to seek the voters’ approval for its decision. The 2004 referendum was the first time that a referendum was held on a proposal that parliament had not already legislated for. This became a key feature of the three bitterly controversial referendums which thereafter took place under Cameron, on reform of the electoral system (2011), Scottish independence (2014) and Brexit (2016). The circumstances are somewhat different in each case. On electoral reform, detailed legislation was enacted, but only for the purpose of submitting it to a referendum. Once again, parliament did not decide and then seek public approval, but entirely ceded the decision to the public. Had parliament made its own view known, there would have been a decisive majority against electoral reform—as there was in the referendum.
On Scottish independence (2014), no scheme was enacted by the UK parliament prior to the referendum; nor was there an agreed process for negotiation of independence between the Scottish and UK governments and parliaments in the event of a pro-independence referendum majority. But prior to the referendum there was a 650-page white paper—“Scotland’s Future”—published by the Scottish government on its favoured scheme of independence. This was debated and approved by the Scottish parliament, and was the independence proposition in the referendum. Indeed, key features of the Scottish government’s independence scheme, including continued use of the pound but with no credible Scottish oversight, were hotly debated in the campaign and played a key part in its defeat.
The 2016 Brexit referendum took the divorce between parliament and referendums to new heights. This time there was neither a Brexit plan agreed by parliament nor even a statement of government policy as to the form of Brexit and how it would be negotiated and enacted. Nor was there even a vote in parliament, prior to the referendum, on whether Brexit, on any basis, was desirable. The referendum was held on the totality of 16 words: “Should the United Kingdom remain a member of the European Union or leave the European Union.” And the totality of the actual Brexit proposition was contained in the last four words—“leave the European Union.” There was nothing more of substance on the form or process of Brexit in supporting documentation or parliamentary legislation.
Like the crisis situation in respect of national leadership, the present constitutional monstrosity in respect of referendums cannot continue.
It is important to go back to first principles. The democratic case for referendums in a parliamentary system without entrenched provisions for constitutional amendment, is that parliament should not make such changes alone because it might threaten the accepted operation of democracy itself. Since the 1970s there has been a general view, including among parliamentarians, that this applies in respect of the handing of powers “up” to the European Union and “down” to national and regional parliaments, assemblies, and mayors; and in respect of major changes to parliament itself, including electoral reform.
However, to make such a process compatible with parliamentary democracy, referendums should obviously apply only to proposals of constitutional amendment first agreed by parliament itself. And this is what should now happen.
In respect of Brexit, the effect would be to hold a further referendum only to approve, or reject, a specific proposal agreed by parliament either for leaving the European Union or revoking the Article 50 notice to leave. There should be no more “unicorn” referendums on proposals neither defined nor agreed by parliament.
As we face a crisis of our democratic practice, we should remember one thing constantly: parliament was the genius of the English for building representative and democratic government over eight centuries. We should not carelessly discard it.
