Jonathan Clark was a Fellow of Peterhouse; at Oxford, he was a Fellow of All Souls College; latterly he has been Visiting Professor at the Committee on Social Thought at Chicago, and Hall Distinguished Professor of British History at the University of Kansas. His latest book is a study of Thomas Paine.
The UK constitution is about to be hijacked. A coup will subvert the long-accepted constitution of the most successful democracy in the world. Parliamentary procedure will be distorted to block the decision of the electorate.
On the contrary, MPs will act properly to save the UK from a disastrous accident. Parliament is just doing what it is meant to do. Belatedly, it is reasserting itself against an over-mighty executive.
Which of these options is correct?
Historically, both of them are. The only thing we can say with certainty about the UK constitution is that it is always changing. Like human life itself, it never continueth in one stay. What is the constitution one day is not the constitution the next. Lawyers, who insist that there is just one right answer to constitutional problems (their own), are regularly overtaken by events. Such states as the USA and the EU, that appeal to founding documents depicted in their myths of origin as unchanging definitions of consensual wisdom, are deluding themselves even more than the UK does.
But MPs are equally upstaged by lawyers. The long term of UK parliamentary history has been a repeated story of members of the Lords and the Commons equally failing to see ‘it’ coming, and staging futile rearguard actions against developments whose very existence they deny. Catholic Emancipation, a logical consequence of Ireland’s population explosion; the repeal of the Corn Laws, a necessary response to the rise of manufacturing; female emancipation, a corollary of a falling birthrate; the list could go on and on. What, then, have today’s legislators failed to ‘get’?
One element has been material: the steady tilt of UK trade away from the EU and towards the world. A second has been the effects of mass immigration and of globalisation. A third has been the appreciable loss of sovereignty in the face of an expansionist multi-national organisation. Another has been technological, the rise of the internet and of the individual choice that it facilitates. The manifestation of all these has been accidental: the unplanned, unappreciated rise of the referendum as a constitutional practice. Once, representative democracy was the only democratic option for a large state. Now, direct democracy is far more feasible. It will become more feasible still.
Many MPs just fail to see it. Far from entering into a corrupt conspiracy to block a policy that conflicts with their self-interest, they express the high-minded constitutional orthodoxy of their youth. They insist that they owe their constituents their best judgement, not their blind obedience. This was, in its day, a theoretically noble and logistically inevitable practice. But all that has changed. A few MPs now implicitly and untheoretically accept the change, grasping at referenda as a way of solving their party-political fixes. Most do not.
Referenda would not solve party problems, since the tide is running the other way. The future lies less with representatives, more with direct voting, and, soon enough, with electronic voting. Many groups in society have found their roles increasingly taken over by electronic means, even expert and highly skilled groups; it may be that, over time, fewer and fewer elected politicians will be needed. How will representative democracy accommodate direct democracy? We hardly know. But it will have to do so.
MPs who demand a ‘second’ referendum on the EU should learn a little history: we have had two already, in 1975 and 2016. Before pinning their hopes of reversing the verdict of the second on a third, it would be wise for the UK to debate, and legislate, on just what referenda are, and what they can do.
The key questions are four in number. First, who can call a referendum? It would be pointless to leave this decision subject to prime ministerial fiat. Rather, they should be triggered (as debates in Parliament now are, in response to online petitions) when a certain number of signatures have been recorded.
Second, who sets the terms of the motion? This will be harder, and may demand the wisdom of an electoral commission. But how to reform the existing body to secure balance and prudence is a riddle indeed.
Third, how often can a referendum be called on the same issue? Parliament allows itself to change its mind week by week. The electorate can think again in general elections every five years. Should the decision of referenda stand unchallenged for a generation (for example, from 1975 to 2016) and, if so, exactly how many years should that be?
Fourth, and hardest, how will the result of a referendum be translated into statute? Little good will be done if a clear verdict is undone by Orwellian doublespeak, and if Parliament declares that it respects the verdict of a referendum only to do the opposite. That way revolution lies. The object of the exercise is, as with a mass electorate and women’s suffrage, to absorb within a moderate, stable democratic practice a new element which, if unabsorbed, may have fatal effects. If the Swiss manage it, so can the British.
There will be, and is, resistance. It is one of the ironies of history that, after a distinguished career of public service, the diplomat Lord Kerr will go down in history for just one fatal sentence: ‘we will huff and puff, but in the end we will have to come to heel’ at the command of the EU. But the world has changed from that of his youth. It is not the UK that will be the subject of irresistible pressure but Parliament itself. MPs will have to learn to ‘come to heel’ to the electorate, and in new and steadily changing ways.
What form, exactly, will these changes take? No-one can predict. But changes there will be, and it will not be the electorate that will be the defeated party if it considers that its clear verdict has been blocked.