Britain’s constitutional collapse

Portrait_of_Jean-Louis_de_Lolme_from_Constitution_de_l'Angleterre_(1789)

Jean-Louis de Lolme: Parliament can do whatever it wants — but now it can’t.

A couple of points have been overlooked in the ongoing Brexit fiasco.  One is that referenda are not democratic.  The reason is simple.  Democracy is a process by which the masses take control of society and move it forward whereas a referendum is no more than a snapshot of how they feel at a certain moment.  One is dynamic, the other static.  In a democracy, mistakes are to be expected.  Just as a child learns to walk by falling down, as Marx once put it, a sovereign people learns which path to take by venturing down others that turn out to be wrong.  Learning, progress, and democratic self-government are all impossible without the freedom to err.

But a referendum allows for no such freedom.  To the contrary, it locks people into a position from which there is no escape.  A recent poll indicates that a majority of Britons now favor staying put inside the EU.  But it doesn’t matter because the vote is set in stone and any attempt to change it will be seen as akin to moving the goalposts in the final minutes of a game.  The same goes for a second Brexit vote: it, too, is seen as an illegitimate last-minute change.  So nothing can be done about a referendum that is apparently inviolate.  Brexiteers figure that they won fair and square and therefore want Parliament to do as it’s told.  Apparently, the losing side has no recourse.

Brexit thus cripples parliamentary sovereignty while robbing the people of a basic democratic right – the right to change their mind.  But the other point that’s overlooked is that parliamentary sovereignty, the total power enjoyed by the “crown-in-parliament,” may resemble popular sovereignty in certain respects, but it’s a bird of a very different feather.  In one, the people mobilize government while, in the other, government mobilizes the people every five years or so merely to vote yea or nay on how it’s doing.  It’s a fundamentally passive relationship that ultimately favors the Tories, the party of stand-pat conservatism, over leftwing Laborites who want change but at the same time feel obliged to bow down before a constitutional traditional that is all about continuity and keeping faith with the past.  Partisans of Britain’s famous unwritten constitution may claim that it’s neutral, but there’s no doubt that it favors the right.

So is any surprise that a pseudo-democratic structure opted for a pseudo-democratic solution to the problem of whether or not to remain in the EU?

Which brings us to first-past-the-post voting, a basic element in Britain’s constitutional make-up .  The New York Times recently quoted a British pub-goer as blaming the current paralysis on a system that promotes political polarization by allowing policy to be “hijacked by an even smaller segment of the ruling government, the right-wing element of the party.”  The pub-goer is quite right: by allowing a party to prevail by winning a bare majority of votes in a bare majority of constituencies, first-past-the-post consistently distorts democratic sentiment.  The UK is not as awful as the US, where Trump was able to capture the White House despite losing by more than 2.8 million votes.  But it’s still pretty bad.  In 2010, the Tories wound up with 47 percent of the seats despite winning just 36 percent of the vote.  In 2015, they ended up with 51 percent despite winning just 37.  In 2017,  they ended up with 49 despite winning just 42.

An unrepresentative parliament thus begat an unrepresentative referendum.  Instead of pushing ahead with democratic reform, the political classes opted for a process resulting in something like constitutional collapse.  If the voting system had been more democratic, there would have been no need for a referendum since Parliament would have more accurately reflected national sentiment.   That doesn’t mean that Brexiteers wouldn’t have prevailed.  They might well have, if only in the short term.  But once it became clear how difficult leaving the EU would be, there would have been plenty of opportunity to re-open the question.  Instead of being locked in, voters would have been free to debate the issue anew and perhaps change their mind.

But now popular sovereignty is thrice denied – by an antiquated constitution that imposes a dictatorship of the past, by an unrepresentative voting system, and by a set-in-stone referendum.  An undemocratic system has painted itself into a corner.  Reform is overdue, yet structural change is impossible without a break with tradition, something that neither Labor nor Conservatives want to do.  So both parties are frozen as the country that gave us the industrial revolution and classic liberalism stumbles over a cliff.  But don’t worry – the US is following close behind.

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