Is the British constitution to blame for the Brexit mess?

We should take the opportunity presented by the lull in the fighting over Brexit, to talk about the British constitution. How much blame should it bear for the mess we find ourselves in? Most of it, in my view.

We are repeatedly told that the great advantage of having no written constitution is that it brings  flexibility and the ability to respond pragmatically to new situations. Thus in May 1940 the obvious inadequacy of Neville Chamberlain as a wartime leader enabled Winston Churchill to assemble a coalition government within a day, to unite the nation and prosecute the war. All it took was for Parliament to express its disapproval of Chamberlain and approval of Churchill's alternative arrangements. Plus the injection of a morsel of common sense by George VI.

It all went horribly wrong in the last decade. Faced with an existential threat to the Conservative Party's hegemony of the right, represented by the rise of the anti-immigration and anti-EU party, UKIP, prime minister David Cameron proposed to hold a referendum that would settle the argument once and for all. He absolutely expected the pro-EU side to win. In the same expectation, a strongly pro-EU Parliament approved the referendum, and the major parties promised - somewhat recklessly - to be bound by the outcome.

If the Remain campaign had won, as everyone expected, there would have been no problem. Parliament and people would be united. Instead the majority of Members of Parliament, who supported Remain, found themselves at odds with the majority of the people, who had voted to Leave. And the constitution has proved unable to cope. Who takes precedence? Nobody knows. Or it depends which side you are on, which is the very opposite of the measured objectivity that a state constitution is supposed to bring. Is a referendum subject to the same principle as a parliamentary election, for example, that one Parliament cannot bind its successor? Or are referendum results binding permanently? Who knows?

Not the least of the difficulties lies in the way referendums work. They necessarily simplify complex issues into binary yes/no choices, and the outcome may well depend on who can best use social media to manipulate public opinion by appeals to emotion and prejudice. Parliamentary democracy, on the other hand, favours rational argument based on evidence. Even if persuasive, the arguments may be bogus and the evidence concocted. But the dynamic is quite different. And the outcomes will probably be different too.

This clash between two incompatible democratic methods could still have been somewhat alleviated had two traditional safety valves still been in place. The traditional resolution of an impasse in Parliament was by means of a general election, which would normally follow the defeat of the Government on a major issue of policy. But as an expedient to deal with the need to maintain the stability the coalition he entered into in 2010, David Cameron brought in the Fixed Term Parliament Act. It served its short-term purpose but disabled a constitutional safety valve. Without that Act Theresa May would certainly have been replaced by now.  

The second safety valve was a change of leader, not so far from what happened in 1940. But both major political parties, in a laudable desire to democratise their internal decision-making, have moved towards a referendum model of leadership election. In both cases the candidates emerge from a process within the Parliamentary party, but in both cases the final choice rests with ordinary party members. But they are not that ordinary: the average Conservative grass roots party member is white, middle class and over 60; the average Labour member is young, politically active, and university educated. Both groups are highly partisan in their political opinions, and they naturally vote for leadership candidates who match their preferences. That tends to produce leaders more extreme than the bulk of their fellow MPs.

Labour has the leader its membership wanted, though Jeremy Corbyn's reluctance to embrace a second Brexit referendum as party policy is putting a strain on that loyalty. The Conservative grass roots, in contrast, are very out of love with Theresa May and instead favour Boris Johnson, the only Tory politician with even a modicum of populist magic.

So the change-of-leadership safety valve is not so much disabled as captured by an unparliamentary election process. It is quite likely, as in Labour's case, to produce a leader out of harmony with the Parliamentary party. Far from relieving the constitutional dysfunctionality, therefore, that makes it worse.

This analysis would not be complete without reference to the devolved administrations of Wales, Scotland and Northern Ireland - also a relative novelty bolted on to the unwritten constitution for reasons of political expediency. The setting up of the Scottish Parliament in 1998, following a referendum, was designed to gain favour for the Scottish Labour Party but instead provided a power base for the Scottish Nationalists. The constitutional implications of this innovation are massive, especially as the Scottish Parliament overwhelmingly favours continued membership of the EU. In the 2016 Brexit referendum Scotland voted 62-38 to remain. This is not necessarily a component of Westminster dysfunctionality, but could become so if a general election produced a minority Labour government which relied on SNP support.

This is a very tangled web, and it is hard to see it untangled without something like a Royal Commission, which could take a long hard look at the problems. But some things already stand out. The Fixed Term Parliament Act is an anomaly, and needs to be repealed as soon as it can be. The doctrine that referendums are superior to Parliamentary elections needs to be repudiated and disavowed by all the major parties, so that parliamentary sovereignty is truly restored and rational argument based on evidence again becomes the only way major national decisions are reached. And all Parliamentary parties need to regain the upper hand in leadership elections, as they represent the electorate in the way that party memberships do not.

Clifford Longley will be writing regular updates on Brexit over the coming weeks. To read more click on the links below. 

Dark days in Brexit land

If a 'no deal' Brexit is ruled out, what next?

Revocation of Brexit on the horizon?

Could Brexit now be abandoned altogether?

Did May fundamentally misunderstand the Brexit referendum result?

What the Conservative Party really needs is a shift to the left

Is the collective of IQ of the House of Commons that of an 11-year-old?

Why is the British bulldog proving so bloody obstinate?

What are the chances of a second referendum?

May's negotiating tactics make no sense

A Corbyn prime ministership has never seemed more likely