Friday 18 October 2019

Colm McCarthy: 'Cameron's tragic spin of bottle to quit EU on undefined terms'

Irish referendums have always ended political controversies - unlike the one in beleaguered UK, writes Colm McCarthy

UNINTENDED LEGACY: Former prime minister, David Cameron
UNINTENDED LEGACY: Former prime minister, David Cameron
Colm McCarthy

Colm McCarthy

Three years and three months on from the referendum, it is painful to watch the United Kingdom, with which Ireland joined the European project in high expectation almost 47 years ago, muddle on through the purgatory Brexit has become.

Time for a revised deal is again running out, if you believe the Johnson government is seriously seeking one. If no material revisions are possible, the choices are Theresa May's withdrawal agreement, thrice rejected by the House of Commons and anathema to the ultra-Brexiteers, or a revival of the Northern Ireland variant of the backstop, rejected by the DUP but likely to be acceptable to the EU-27.

If neither version can get through parliament there will either be another extension, which Johnson has vowed to avoid, or a no-deal crash-out, which parliament has legislated to prevent.

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The last week has been dominated by the proceedings at the Supreme Court which will rule, perhaps as early as tomorrow, on Boris Johnson's decision to prorogue (suspend) the houses of parliament. Their decision is unlikely to affect the resolution of the Brexit conundrum, except possibly through bringing parliament back before Johnson's enforced holiday ends on October 14, affording more time to legislate for any deal.

But the issue is hugely important. Just think about it: how would you feel if Leo Varadkar, leading a minority government as does Johnson, could tell the president to close down Dail Eireann in the middle of a deep national crisis in order to avoid accountability to the elected deputies?

When the highest UK court is called upon to adjudicate between the executive and parliament there is something seriously amiss. A political crisis has revealed an inability of the institutions of a democratic and prosperous country to resolve an issue of high national policy, which means the political crisis, as foretold by many, has morphed into a constitutional crisis.

There was a national referendum in June 2016, a high turnout and an adequate majority, 52 to 48, on the binary choice offered. More than three years and a snap election later, the decision taken has not been operationalised and another election is on the horizon.

Some UK legal experts have been predicting the days of the uncodified constitution are numbered. Brexit has set executive against parliament, has set the Brexiteer press and numerous Tory politicians against the independence of the judiciary, embroiled the monarchy in political controversy and has the potential to create enduring conflict between the United Kingdom and its European allies and neighbours, Ireland included.

This is a tragedy and it will be the judgment of history that the 2016 referendum was an enormous gamble. Its author, David Cameron, has just published his memoirs, an apologia pro vita sua, which sadly for him has coincided with the harvest, in the Supreme Court, of what he chose to sow in January 2013, when he announced the next majority Conservative government would hold in an in-or-out national plebiscite on EU membership.

This was always a spin-the-bottle option - it was always possible the Tories might win the 2015 election and it was always possible the public might vote for quitting the EU. Many voters must have thought 'the powers-that-be would hardly be asking us if this was not simple, they are the government and they must have a rough idea what they are doing'. And it was sold as simple, and lots of people still think it is. Just leave, deal or no deal, the regular response of vox-pop interviewees.

But there was never a concrete 'just leave' policy and the choice on the ballot paper was not really binary: there are too many ways of leaving and the electorate could not choose among them, since they were not asked. To cap it all, the referendum was consultative, quite unlike the referendums held in this country, where the written constitution is modified on the night if the majority ticks the Yes box.

The source of the UK's constitutional crisis is straightforward. The 2016 referendum was only the third national plebiscite in the country's history and crucially it was the first where the electorate voted for change.

Harold Wilson's Labour government held a poll in 1975 which confirmed UK membership of what was then the European Economic Community by a two-to-one margin, so no action was required.

In 2011 there was another two-to-one margin when the voters chose to leave the electoral system unchanged. The 2016 poll was different: an electorate not well apprised of the complexities involved voted for change, the enormous change of quitting the European Union on undefined terms, sparking a constitutional as well as a political crisis the system has been unable to resolve.

The United Kingdom lacks a codified constitution, one of only three countries in the world without one (Israel and New Zealand are the others).

A mixture of legislation, precedent and convention comprises the constitutional order with the sovereignty of parliament at its core, hence the succession of court challenges to the actions of the executive. Referendums cannot bind the sovereign parliament. They may be deemed politically binding but they do not alter the written constitution, since there is none.

The 40 plebiscites held in Ireland since the 1937 constitution was adopted were not consultative, they were about specific constitutional changes. On 29 occasions the voters approved the change proposed but there is never a post-referendum row about the 'will of the people' along the lines of the Brexit turmoil. Irish referendums end rather than initiate political controversies since the voters' choice is self-implementing.

The 2016 UK referendum was the first in UK history where the electorate voted for change and crucially, it was not merely 'consultative', it was vague as to what was to happen next. Various schemes would satisfy the instruction to leave, ranging from a continuing close attachment to the customs union and the single market to the disruptive no-deal crash-out threatened by Johnson.

Back in 1975, Margaret Thatcher, then the leader of the opposition objected to Harold Wilson's first resort to the referendum device, she feared it would conflict with the sovereignty of parliament. It did not on that occasion, or on its second outing in 2011, since the voters ticked the no-change box.

But Thatcher's prescience is now being acknowledged. The problem is the UK has absent-mindedly acquired the habit of consultative referendums, in the Brexit case offering an undefined option, in the absence of a codified constitution. Eventually the electorate were going to plump for change and the 2016 vote produced a narrow win for a very large change indeed: departure on unspecified terms, after 47 years, from the European Union.

The UK constitutional order is a mess, an impossible trinity - consultative referendums with parliamentary sovereignty and an uncodified constitution.

If David Cameron's unintended legacy includes a written constitution, it will bring an avalanche of skeletons out of various cupboards, including the status of devolved parliaments and rights of secession, devolution for English regions, the House of Lords, the established status of the Church of England - even the monarchy.

Quite a bottle you spun there, David.

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