Lord Norton: Referendums or elections – the current situation shows what happens when two forms of democracy collide
We’re as divided on how to implement constitutional reform as we are on Brexit. We must be wary of any solutions which will worsen our current dilemma, writes Lord Norton
The UK finds itself in a constitutional position that is unique. A confluence of events, some of which are unprecedented, has created a political situation that is both uncertain and toxic. It has led to demands for constitutional reform.
The 2016 referendum on European Union membership was the third UK-wide referendum to be held, but the first in which electors did not vote for the status quo. The UK is the first member-state to opt to withdraw from the EU under the terms of Article 50 of the Treaty on European Union.
The 2017 general election was not the first to produce an uncertain outcome in terms of party support, but it created a new situation because of the spread of Members’ views on the issue of Brexit.
The relationship between the EU referendum and the general election outcomes creates a dilemma. It represents a collision of two concepts of democracy.
Within the parliamentary system, each side is using powers that they have at their disposal, but for novel purposes. The Government, in trying to keep control of policy, has had recourse to prorogation. The Queen grants prorogation on the advice of the Privy Council. Usually, the gap between prorogation and the Queen’s Speech is a matter of days. Here, prorogation coincides with, but is longer than, the usual adjournment for party conference season.
Prorogation is a matter for government. Adjournment dates have to be agreed by the House. The Government is open to the accusation that it is seeking to prevent Parliament sitting to avoid a majority being mobilised to enact measures it opposes.
Those opposed to a ‘no deal’ Brexit have sought to mobilise parliamentary majorities in a way characterised as Parliament taking back control from the executive. To take back control, one has to have had it in the first place. Insofar as it is a case of taking control of the parliamentary timetable through the use of business motions, then there is a case for arguing that it is the Commons taking back control.
The government’s control of the Commons’ timetable derives from the Balfour reforms of 1902, though there were also significant changes in the late 19th Century. Insofar as it is a case of trying to wrest control of policy making from government through legislation, the onus for policy making rests with the Crown.
Even at the time of the Glorious Revolution of 1688, those responsible for the Bill of Rights wanted, as Maitland put it in his Constitutional History of England, ‘a real, working, governing king, a king with a policy’. For the Commons to engage in policy making represents a fundamental change in the nature of the Westminster system of government.
There is a majority of MPs against a no-deal Brexit, but not a majority for an alternative. The Withdrawal Agreement has been rejected three times. Indicative votes – novel in themselves in being conducted simultaneously by ballot – have been notable for what they have rejected (customs union, second referendum, revocation of Article 50) rather than for what has been agreed.
There is thus a dilemma. It is the product of a clash between two concepts of democracy. With direct democracy, the people determine policy for themselves. In the Greek polis, or in American town hall gatherings, citizens gathered to debate and resolve policy.
Today, the principal means of enabling people to determine a policy directly is through a referendum. The use of referendums in the Western world is on the rise. Previously unknown to the British constitution, 12 have been held since 1973, the three UK-wide and the rest in different parts of the UK.
The principal form of democracy employed in the UK and other Western democracies is that of representative democracy. The people choose those who they wish to take decisions on their behalf. They elect them and hold them to account at a subsequent election. Accountability is at the heart of the political system.
Parties seek election on a manifesto, the party gaining a majority of seats forms a government and seeks to implements its programme. The doctrine of collective responsibility ensures cohesion and accountability. There is one entity – the party (or parties) in government – that is answerable to electors for public policy. Election day is, in Karl Popper’s words, ‘judgment day’.
The explanation for the current apparently irreconcilable situation is the clash between direct and representative democracy. Parliament legislated for an in/out referendum on EU membership. There was a majority for Leave. It is left to government and Parliament to implement the outcome. Electors cannot do that and there is no accountability for the result.
Electors cannot hold themselves accountable for the outcome of a referendum. It is also left to government and Parliament to interpret why electors voted as they did. Did most favour a ‘hard’ or ‘soft’ Brexit? That assumes electors knew the difference and had a view.
Theresa May in 2017 sought and achieved the agreement of the House of Commons, under the Fixed-term Parliaments Act, for an early general election. The result was indecisive both in terms of party support and in the views of individual members on Brexit.
Not only can electors not hold themselves to account for the outcome of a referendum, they cannot hold to account a transient majority in the House of Commons.
Electors voted to leave the EU, but the following year elected a House of Commons that was clearly divided on how to give effect, if at all, to the outcome of the referendum. The current situation shows what happens when two forms of democracy collide.
The confused position has generated calls for constitutional reform. The most notable, by Vernon Bogdanor and others, is for a codified, or ‘written’, constitution. The problems here are twofold.
One is constitutional: how could it be entrenched given the extant constitution?
The other is political: what would be in it? Would it permit or prohibit referendums? Some US state constitutions permit them, the US constitution does not.
Other nations with codified constitutions have encountered similar controversies to ours over the use of prorogation. Some commentators, such as Brice Dickson, have instead made the case for a Constitutional Reform Act to provide for shared rule and joint decision making to provide greater stability to the Union, seen as under greater threat because of the strains of current conflicts.
There are calls for changes to the Fixed-term Parliaments Act as well as changes to the upper house. What is lacking, as with Brexit, is political agreement on the way forward.
The current dilemmas generate demands for reform which themselves may add to, rather than resolve, them. The danger is encapsulated in the observation of Ernest Bevin: ‘If you open that Pandora’s Box, you never know what Trojan horses will appear’. The box is already ajar.
Lord Norton of Louth is a Conservative Peer and professor of government at the University of Hull. His next book, Governing Britain, will appear early next year