Repairing a broken constitution
Is the system broken?
There is wide agreement that our political system is broken. Because Parliament accurately reflects the confusion and division in the country on the most pressing political issue of a generation, it is incapable of rational decision making, and has clearly lost the confidence of the electorate. For three years it has been unable to legislate on that, or any of the other major issues facing the country. A referendum called to resolve an internal dispute in one party has divided the nation and undermined trust in democracy. Our electoral system has been challenged by special interests, and the institutions which exist to police them have proved incapable of doing so. First past the post elections continue to give very great power to parties with no clear majority. Our constitution allows the paid up members of one political party to choose a Prime Minister, even when those members are deeply unrepresentative of the electorate as a whole. Once in post, that Prime Minister can appoint a strongly partisan government, and has absolutely no obligation to seek a renewed mandate for his or her agenda from the electorate.
This is wrong, and undemocratic, and it is not surprising that people are angry, despairing, or have simply given up hope in politics. Some believe that leaving the European Union will be an economic, political and constitutional disaster. Others believe that to fail to do so would be to finally undermine democracy itself. Conflicts of reason and emotion provide a dangerous cocktail of argument which cedes power to those with the loudest voices.
Could an election or referendum resolve the problem?
There is now talk of a government of national unity, or a new minority government with a remit to delay the Brexit process to allow a new referendum on Brexit. However, the best available evidence is that another referendum would produce further anger and division, with a similarly small majority in favour of remaining in the EU. Acting on that would arouse serious anger and mistrust in the democratic process, but failing to do so would create similar anger on the part of the half of the population who still want to remain. It would not resolve the difficulty that the four nations of the Union are likely to vote strongly in different ways. Similarly, a general election is unlikely to give a clear answer to the Brexit question, since the country is deeply divided, the two traditionally major parties are both divided on Brexit, and a host of other issues will also come into play. Opinion polls, and the European Parliament election result, suggest that an election would produce another hung Parliament, even more divided than the present one.
In most electoral systems worldwide a major constitutional change like Brexit is only carried out if a supermajority votes for it. Otherwise, the status quo is upheld. The supermajority can be a majority of voters (60%, two thirds or even more) or an absolute majority of the electorate. By any such test, the 2016 referendum would have failed. However, given that we have had a referendum, albeit with a very narrow result, it is not clear what the “status quo” would be: another recipe for conflict.
An alternative plan
We clearly need a way of dealing with the two deeply intertwined issues of Brexit and constitutional reform. They need to be considered at the same time because, if Brexit happens, government will be embroiled in international negotiation over trade and many other issues for years to come, with no time or inclination to consider constitutional (or any other) issues, and the problems will only grow. However, if there is no clear route through which the goal of those who voted leave can be achieved, then they would be entitled to suspect a plot to invalidate the previous decision.
I therefore propose a radical strategy which seeks to deal with both issues at the same time, and with the current divided, but broadly representative, Parliament. It comprises four elements:
- A caretaker government of national unity should be created from the current Parliament, to serve no longer than May 2021 (the date of the next general election under the Fixed Term Parliaments Act). Whether it is formed by a cross party collaboration led by an acceptable backbench MP, or by one of the opposition parties, it must be agreed that during that period there will be no major policy change or legislation which does not command the support of a specified proportion of MPs (perhaps two thirds?). This can reassure members of all parties that supporting the national unity government will not allow one party to impose partisan policies.
- The government should immediately request an extension to the Article 50 notice for two years to carry out a constitutional review and a referendum.
- The government should immediately legislate to create one or more representative citizens assemblies to consider the UK’s relationship with the EU, and to make recommendations with a specified deadline, and to authorise a referendum
- That government should immediately convene a constitutional convention to consider and make recommendations to Parliament on the following issues (which need to be considered together, since they interact in many complex ways):
- The extent and nature of devolution to Scotland, Wales and Northern Ireland, and the place of England in the Union
- The conduct of a further referendum on Europe
- The future use (if any) of referenda: what issues are appropriate for referenda, whether they should be outlawed altogether, or governed by a supermajority
- A more proportional electoral system to ensure that members of the electorate can realistically believe that their votes count
- The reduction of the voting age to 16
- The reform of electoral law, including the regulation of media coverage and online campaigning, the institutions for policing breaches of that law, and the penalties for doing so.
- The possible repeal of the Fixed Term Parliaments Act.
- In the light of the recommendations of the Constitutional Convention the government should bring to Parliament a Constitution Bill, addressing the issues in 4 above. The aim should be to have such legislation in place before the next planned General Election in May 2021.
Is this realistic?
It will be argued that we cannot afford the luxury of two
years of navel gazing: there are too many important issues to face. I believe that
there is no better alternative. It is clear that our political system cannot
arrive at agreement on how to deal with any of these issues. The most we can
expect from an election or referendum now would be to give one party or another
a sufficient majority to impose divisive policies on a sceptical electorate.
Restoring confidence in democracy requires an overhaul of the system, nor
merely rerunning the failed machine.
 The Electoral Commission has said that its powers are no longer fit for purpose, and the police have failed to pursue alleged breaches of the law.
 In 1983 a 42% vote share gave Margaret Thatcher a majority of over 70. In 2017 the same vote share left Theresa May 2 seats short of any majority at all. A mere 533 votes in nine key constituencies would have given her a clear majority.