Britain must fix its constitutional crisis

PUBLISHED: 00:01 19 April 2018

AC Grayling

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Brexit has been made possible by Britain’s constitutional disarray. To fully resolve the first problem, we must tackle the latter, argues philosopher AC GRAYLING

In words that could have been written in response to the political and constitutional problem posed by the phenomenon of Brexit in today’s Britain, Alexander Hamilton wrote in the first of the Federalist Papers of 1787-8, ‘…it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered the general misfortune of mankind.’

Our political order – parliament, the political parties whose representatives currently make up its sitting membership, and the executive drawn from the tenuous coalition supporting it – is faced with a momentous challenge. This challenge is not that of exiting the European Union and coping with the shock to the economy and society that the mere prospect of leaving is already beginning to be felt.

In the largest outlines, the consequence of ceasing to be a large player in a large and influential bloc, with the economic and diplomatic leverage this provides, and becoming a small economy on the margins of the major global economic configurations, is obvious. This is why every observer outside the United Kingdom looks with astonishment and – depending on whether it is friend or foe – grief or relish respectively, at the egregious act of self-mutilation that is Brexit.

No, the real challenge is a different one: and if it were faced, there would be no consequences of Brexit because there would be no Brexit. This challenge is the challenge of doing what is right for the country, and in so doing to face up to the constitutional disarray that has made the possibility of Brexit occur at all.

To explain this clearly and in order it is necessary to iterate several familiar points. The first is that there is no mandate for Brexit. An advisory referendum, the franchise for which wrongly and unfairly excluded several groups each with a major material interest in the outcome, yielded a vote of 37% of that electorate in favour of Brexit. In 2017 the Prime Minister called an election, stating that it was to get a mandate for Brexit: she lost her majority in parliament and now relies for support on a small doctrinaire Ulster party. Losing a parliamentary majority is the opposite of securing a mandate. So there is doubly no mandate for Brexit. The election reinforced the fact that the referendum did not give any such mandate.

So there is no mandate for Brexit: and even the best-case projections for the effect of Brexit on the United Kingdom (assuming the UK survives in its present form, given the interest for Scotland and Northern Ireland in leaving the Union in order to stay in the EU) are very poor. There should therefore be no question of a Brexit. Yet the process continues: how can that be? This sets the terms of the challenge.

The challenge is for ‘reflection and choice’, in Hamilton’s words, not just about stopping Brexit, which is the obvious and right thing to do and completely within the power of Parliament to do, but equally importantly to understand how a minority vote for an extremely bad policy can be, and is still being, pursued by a government without either a mandate or authority. It is as if Brexit is a disguised coup.

The reason is the insufficiency of our constitutional arrangements. A cabal in UK politics is in a position to try to push Brexit through because of the uncodified and largely unwritten constitution of our country. This allows an executive drawn from parliament (and therefore in control of the legislature, which in theory should be holding the executive to account, not rubber-stamping it) to do what it likes even though it almost invariably has only minority support in the country: the First Past The Post (FPTP) voting system and the ‘whipping’ system of party discipline mean that UK governments are, as Lord Hailsham famously said in the BBC Dimbleby Lecture in 1976, quite literally “elective dictatorships”.

If there were a proportional representation voting system in the UK, there would be no question of Brexit. If there were constitutional consistency in arrangements for elections and referendums, there would be no Brexit: for example, if the franchise for the EU referendum of 2016 had been the same as for the Scottish independence referendum of 2014, there would be no Brexit – because the latter included 16-17-year-olds and citizens of other EU states, on the grounds that they would be affected by the outcome and therefore had a right to be consulted. These two changes alone, had they been introduced before 2015, would have saved the UK from the potential disaster of a Brexit.

These two changes would be modest and manageable: but they would have far-reaching benefits. Instead of a minority government pushing through an agenda favoured only by the unholy alliance of the far right and left wings of the political spectrum, there would be rational and sensible policies based on the UK’s real interests, and indeed on regional and global interest, neither of which are served by the introspective folly of the Brexiters.

There are other changes needed to our political and governmental orders, discussion of which can wait for another time, but which in sum come down to getting our constitutional arrangements right so that ‘reflection and choice’ rather than ‘accident’ can yield better outcomes in the government of the country. At present the parlous future of the UK is in the hands of small groups of politicians on the extremes of the political spectrum, and the means of stopping them are laborious and uncertain. That is unacceptable. We should so arrange matters that it is not the unrepresentative FPTP-inflated parliamentary majorities that allow cabals to drag the country in bad directions, but genuinely representative parliaments which serve the country’s interests instead of party lines.

When the dust has settled on Brexit, the campaign to modernise our constitution so that it serves all the people, will have to begin in earnest.

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