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20 March 2019

We risk enshrining the sovereignty of one moment: 23 June 2016

The UK is told that to ask for a rerun on the 52:48 Brexit result is an affront to democracy, while Scotland hears its 55:45 IndyRef result was so close as to justify a rerun in the near future.   

By Colin Kidd

Forget for a moment the strange particulars of our current predicament. Forget the inconclusive general election of 2017, and the leverage it gave to the fantasies of the European Research Group and the narrow-minded prejudices of the Democratic Unionist Party. Forget what the European question has done to our two main parties, furiously divided, undisciplined and visibly disintegrating at the margins. Forget the doggedness of our zombie-Prime Minister and her undead deal. Forget indeed the weirdness of a situation where both the main party leaders lack the core political skills of nimble adaptability. Forget the actual and prospective self-harm done to the British economy. Forget the matter of Brexit itself.

Focus instead on the constitutional structures that frame British political life. We had a referendum in 2016 that was, strictly speaking, advisory. The choice voters faced was between the status quo and an unknown upheaval. The vote was conducted without any legitimacy thresholds – those insufficiently exercised to vote went uncounted when their relaxed acceptance of the status quo might, arguably, have counted for Remain. Almost 28 per cent of the electorate did not vote. The gap between Leave and Remain was only 1.3 million votes, while the indifference of nearly 13 million non-voters went uncounted. Nor was there any supermajority set on what would constitute a compelling mandate for dramatic change of this sort. Fifty per cent plus one of those voting was deemed to be enough.

Incredibly, no provision was made that the UK’s constituent nations should have any veto on EU withdrawal. This omission was very odd indeed in the case of Scotland, because, in the debates around the Scottish independence referendum of just two years before, a central plank of the unionist argument was to question the SNP’s claim that an independent Scotland would enjoy automatic membership of the EU. More reprehensible still was the failure to give Northern Ireland a special say in the Brexit referendum, as the Good Friday Agreement of 1998 that had brought peace to the province was constructed on the assumption of the continuing EU membership of both the UK and the Irish Republic.

When parliament – otherwise sovereign and containing a clear majority of prudent Remainers – confronted an unwelcome referendum result, it went into a funk. MPs by and large deferred to the supposed will of the people. In the process they ignored the clear Remain majorities in the most precarious components of the UK, Scotland and Northern Ireland. The referendum result, it was widely accepted, trumped the considered views of MPs; yet our whole system of government depends on the notion that parliament is sovereign. The UK lacks a codified constitution, which might have made clear the result’s standing relative to parliament’s authority. Instead we made it up as we went along, with the help of the Daily Mail and most of the Murdoch press.

I write as a reluctant convert to the idea of a written constitution. A decade ago I spoke at a roundtable event in London with various judges, journalists and academics who were debating the future of the British constitution. I belonged to an outspoken minority on the panel that defended our existing arrangements. I recognised that British institutions seemed anachronistic and anomalous, and that the principles that governed their operation were opaque, including prerogative powers and various loosely understood constitutional conventions. Although the United Kingdom looked like a quaint and irrational hangover from the early modern world, I contended, its institutions somehow worked. Arguably, indeed, they functioned better than those of the United States, with its highly politicised Supreme Court. The UK might appear fusty, but with the powers of the monarchy and the House of Lords having long since shrivelled, the supremacy of the House of Commons underpinned a democratic system of remarkable transparency.

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No longer. The rise of the referendum as an established part of our political life threatens the status of parliament.

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Which is the ultimate authority, parliament or the people? And who interprets the result? At the moment, moreover, we risk enshrining in perpetuity not popular sovereignty, but the popular sovereignty of one sacrosanct moment: 23 June 2016. How often have we heard that the 52:48 result of the Brexit referendum was decisive, and that to ask for a rerun is an affront to democracy? Yet in Scotland we regularly hear the rather different – and equally plausible – story that the 55:45 result in the independence referendum was so close as to justify a rerun in the near future. However, we have no constitutional measure of what constitutes closeness or decisiveness.

There is another notable absence in our constitution: the acknowledgement that, far from being a single people, we inhabit a multinational union-state. The Brexit referendum of 2016 should not be seen in isolation from the Scottish referendum of 2014, which raised major questions about our multinational union. During our interminable squabbling over Brexit these issues have sunk from metropolitan view, but they have not gone away.

The last few years have been very dispiriting to someone who believes in the UK as a multinational entity in which liberal values, mutual tolerance and forms of civilised coexistence transcend narrow nationalisms (including the British nationalism of England, and its Ulster variant). Before it’s too late – and it might be already – we need to draw up a written constitution that establishes precisely how referendums relate to the norms of parliamentary government, and whether on such occasions Scotland, Wales and Northern Ireland are simply to be treated as appendages of Greater England.

Beyond the specific problem of the referendum, the House of Lords is ripe for rejuvenation as a House of Nations: a body deliberately constituted as a check on the will of the English majority in an explicitly multinational state. And perhaps the time has also arrived for proportional representation. With our class-based parties now fractured over Europe, the first-past-the-post system no longer guarantees adequate representation on the major issues. Our venerable unwritten constitution has run aground. Surely it is time to refit the vessel? 

Colin Kidd is professor of modern history at the University of St Andrews

Click here to read the rest of our “State of emergency” series, featuring articles from writers including David Hare, Elif Shafak, and Jonathan Coe.