An Abuse of Democracy

by George Hatjoullis

There is a widely held belief that the UK does not have a written constitution. The illusion arises because it is not written down in one document called ‘the UK Constitution’. It is spread across many documents that nevertheless combine to make up the UK constitution. The UK entry into the EEC was a constitutional change and the cumulative legislation ceding increasing amounts of sovereignty to the EU constitutes amendment to this constitution. These amendments were ratified by parliament through the required constitutional process. Leaving the EU is another constitutional change that should also be ratified by parliament. Of course, the government of the day has an absolute majority and this is all that is required for ratification. It seems a simple parliamentary majority suffices in the UK for constitutional change to be occur.

Contrast with the USA. An amendment of the US constitution would normally require a 2/3 majority of both houses. It is common throughout representative democracies (even Turkey) for constitutional amendment to require a tough test for both houses. In the UK a massive constitutional change is being planned based on a 52/48% majority in a referendum that was presented as advisory to the electorate. The implication of advisory status is that parliament would nevertheless vote on the issue noting the referendum outcome.

The government of the day has since decided to treat the referendum outcome as binding and to proceed to initiate constitutional change without seeking the approval of parliament. One might argue that as the government has an absolute majority in parliament and that ultimately only a majority of the lower house is needed to proceed, then this is their prerogative. One might also ask why they do not test parliament and the power of their whip and have a vote to ratify the referendum conclusion? The answer is that they fear parliament will not ratify.

The first problem is that constitutional change is rather easy in the UK. It ultimately requires only a simple majority of the lower house (it seems). The second problem is that the government of the day is not even willing to pass this rather easy test. It is choosing to proceed based solely on an advisory referendum that resulted in a 52/48 outcome in favour of constitutional change. The third problem is that the referendum did not specify ‘the change‘. The possible set of changes is very large and it is not unreasonable that parliament be asked to at least ratify the specific change that is agreed.

Now many Leave voters may see this a way of subverting the ‘will of the people’. In fact it may end up protecting it. The only clear demand that was signalled by the Leave voters was control of the movement of people. If the government of the day come up with a Leave agreement that does not effectively return to the UK control of the movement of people then the ‘will of the people’ will not have been observed. It is as much in the interest of the Leave voters as the Remain voters that any agreement is ratified either by another (binding) referendum or a vote in parliament following a general election. There is a considerable risk that a Leave agreement will compromise on control of borders in order to retain access to the single market.

The final problem is that the EU will not formally negotiate until article 50 is invoked and once invoked it does not matter what a second referendum or parliament wish. The future of the UK within the EU is then no longer in its own hands.