Tuesday 22 January 2019

Colm McCarthy: 'A very British farce born of a questionable referendum'

Margaret Thatcher saw the dangers of plebiscites. If only modern-day Tories had heeded her words, writes Colm McCarthy

An embattled Theresa May leaves 10 Downing Street to face her critics. Picture: PA
An embattled Theresa May leaves 10 Downing Street to face her critics. Picture: PA
Colm McCarthy

Colm McCarthy

The UK's willingness to inflict certain economic costs on itself in pursuit of a speculative recovery of sovereignty is quite a puzzle. There was always going to be cost in any withdrawal from such a deep internal market as the European Union, difficult to compensate through hypothetical new trade deals outside Europe. For an ambitious trading nation there are limits to sovereignty whatever course is chosen - trade agreements need counterparties, and counterparties, old and new, have expectations about joint rule-making.

But a far greater puzzle is the embrace by so many in British politics of the constitutional dilemma which has been so casually created. What did the narrow margin for Leave at the 2016 referendum imply for political action? Does it bind the legislature at all, does it mandate a hard or a soft Brexit, common arrangements for all the UK's constituent parts, a Norway deal or a Canada deal? Is parliament free to impose a strategy alternative to that of a government which has lost its majority?

On Tuesday the House of Commons is expected to vote down the withdrawal agreement negotiated with the EU, without which there is no transition period. The European Court will by then, barring a surprise tomorrow, have endorsed the view of its advocate-general that the UK can unilaterally revoke Article 50, the resignation letter which terminates EU membership at the end of March. Theresa May will not employ this option nor is any alternative prime minister likely to do so: the option is barren.

There could, however, be enough support to legislate for a second referendum but that would need the EU to extend the March 29 deadline. There can be no presumption that a second referendum would reverse the 2016 outcome, and European leaders will have ample reasons to wonder whether an extension, if sought, should be granted. The government has lost its majority, but a fresh general election would need parliamentary approval unlikely to be forthcoming. There is no preferred course of action. This political impasse in Westminster reflects not just the magnitude of the decision to be taken: it also reveals the extent of the constitutional tangle caused by the UK's resort to the un-British decision-making tool of direct democracy.

Next May's local and European elections in Ireland will be accompanied, the Government intends, by two referendums, one designed to relax constitutional restrictions on divorce legislation, the other with extending to non-residents the franchise at presidential elections.

Whatever the detailed proposals and regardless of the electorate's decisions, it is not possible that these plebiscites will create the kind of crisis we are witnessing in the United Kingdom. In Ireland parliament is sovereign, subject to the codified constitution, which can be altered only by the electorate. But that is all the electorate is called upon to do at referendums - alter the constitution or decline to do so. They also get to select the members of the legislature, entrusted with all other law-making.

The UK has no codified constitution and hence no clear division of responsibilities between direct democracy and the oft-asserted sovereignty of the Mother of Parliaments.

Last week the House of Commons found the government to be in contempt of parliament. This week it may well reject the most important policy proposal of a UK government in recent times, the withdrawal agreement with the EU. The government could fall, there could be an alternative government, a fresh general election, another referendum on EU membership, even a revocation of the Article 50 notification, and hence of Brexit, in defiance of the referendum result. For now, there is a vacuum of authority: does it rest with a minority government, with a rebellious parliament or with an electorate to be consulted afresh? This is not a run-of-the-mill political battle to be resolved with the instruments to hand, it is a constitutional crisis.

Indeed, parliament's battle with the government is merely the most immediate of two constitutional crises visited on the United Kingdom by the 2016 Brexit referendum. The second is the survival of the union itself, two of whose constituents, Scotland and Northern Ireland, voted to remain with the EU and whose political attachment to the British state has thus been loosened.

The 2016 referendum was unique in the critical sense that no previous national plebiscite in British history had resulted in a vote for change.

There were only two earlier referendums: in 1975 the electorate opted for no change in Britain's first ever national plebiscite, on European membership, by a two-to-one margin. In 2011 and by the same margin they opted not to change the first-past-the-post voting system. In both cases it was straightforward to implement the voters' wishes: do nothing.

The 2016 outcome, by a small margin, signalled an enormous course correction, departure from the UK's 45-year membership of the European institutions. It did not modify the UK's codified constitution, since there is none.

A win for Leave has produced instead an intense and unresolved national dispute about the 'will of the people': there are simply too many ways to leave, with very different economic and political ramifications.

In Ireland the consequences of a referendum are settled when the returning officer sits down. The constitution has either been altered or it has been left intact.

In the United Kingdom the referendum instrument has been introduced into an idiosyncratic constitutional order in which it sits uncomfortably, unless the electorate obligingly votes for no change.

When Harold Wilson's Labour government introduced a White Paper in March 1975 providing for the UK's first ever referendum, on staying in the European Economic Community, the initiative was opposed unavailingly (she later campaigned for a Yes vote) by the recently-appointed opposition leader, Margaret Thatcher. This is what she had to say during the Commons debate:

"The White Paper … is a practical expedient. It will have far-reaching consequences. The immediate point may be to register a popular view towards staying in the EEC. The longer-term result will be to create a new method of validating laws.

"What one minister has used as a tactical advantage on one issue today, others will use for different issues tomorrow.

"This will lead to a major constitutional change, a change which should only be made if, after full deliberation, it was seriously thought to be a lasting improvement on present practice."

She concluded: "This White Paper has come about because of the government's concern for internal party interests. It is a licence for ministers to disagree on central issues but still stay in power. I believe that the right course would be to reject it and to consider the wider constitutional issues properly and at length."

Thatcher resisted the temptation, for 11 years as premier and despite her late-career Euroscepticism, to flirt with the constitutional novelty of the consultative referendum. In the absence of a codified constitution which indicates when plebiscites should be held, and what their consequences are to be, she saw the referendum device as a cuckoo in the nest of parliamentary sovereignty.

One of the many ironies in the recent history of the Conservative party is the enthusiasm of Thatcher's latter-day disciples for a referendum device of which she so presciently disapproved.

Sunday Independent

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