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 nothing more than a snapshot of how they feel at a given moment.  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 permits no such freedom.  Instead, 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 soccer match because the other side is ahead.  The same goes for a second Brexit vote: it, too, is seen as an illegitimate, last-minute rules change.  So nothing can be done.  Brexiteers figure that they won fair and square, and now they want Parliament to do as it’s told, with no if’s, and’s, or but’s about it.

Brexit cripples parliamentary sovereignty while at the same time undermining democracy by robbing people of a crucial right – the right to change their mind.  The other point that’s been overlooked is that the British constitution is none too democratic either.  Parliamentary sovereignty, the ability of the “crown-in-parliament” to do whatever it wants short of changing a man into a woman and a woman into a man (to quote the eighteenth-century political philosopher Jean-Louis de Lolme), may resemble popular sovereignty in certain respects, but at bottom it’s very different.  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 between people and government that inevitably favors the Tories, the party of stand-pat Burkean conservatism, over leftwing Laborites who want change but at the same time are required to bow down before a constitution that emphasizes traditional and continuity.  Partisans of Britain’s famous unwritten constitution may claim that it’s neutral, but there’s no doubt that it really stands with the right.

Hence, it’s no 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.  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.”  It’s true that the system distorts as much as it reflects democratic sentiment.  Theoretically, Britain’s winner-take-all system allows a party to prevail by winning a bare majority of votes in a bare majority of British constituencies, which is to say with a little more than a quarter of the total.  And, in fact, parliamentary representation only loosely accords with the voting results.  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.  If Britain had proportional representation, in which each party’s share of seats exactly matches its share of the vote, there would have been no need for a referendum because the makeup of the national assembly would have precisely reflected the democratic will.  It would have been clear where people stand with regard to the EU without having to bother with a separate vote.  This is not to say that Brexiteers wouldn’t have prevailed.  To the contrary, they might well have.  But once it became clear how difficult leaving would be, there would have been ample opportunity for reflection and reconsideration as majority opinion shifted to the other side.

Popular sovereignty has thus been thrice denied – by an antiquated constitution that emphasizes continuity over change, by an unrepresentative voting system, and by a set-in-stone referendum.  An undemocratic system has painted itself into a corner as a consequence.  Reform is long overdue, yet real structural change is impossible without a break with the past, something that neither Labor nor the Tories want.  So both parties are frozen as the polity that gave us the industrial revolution and classic liberalism tumbles over a cliff.  But don’t worry – the US is following close behind.

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