Democracy, as we know, can be tricky. Churchill’s famous quote on democracy is so overused that it has become almost a cliché, but it is worth revisiting from time to time. As Leader of the Opposition, he told the House of Commons in 1947;
“Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time”.
So systems of democracy, while on paper they may look like carefully-calibrated clockwork, in practice have to include room for flex and compromise, and there is no such thing as a perfect system.
In the United States, right now, the process of government is locked in a dispute between the President and Congress as a result of which large sections of the Government have been forced to shut down. This happens from time to time. In a system that separately elects the executive and the legislature, it will often happen that the President and majority in Congress will come from different political parties. This is deliberate, because the role of Congress is to act as check on the power of the Presidency. Normally the two sides, and particularly the President, trims and compromises to find a way through. Let us just say this is not the current President’s modus operandi.
The troubles facing Britain over Brexit on the other hand, are not deliberate. It’s not written into any constitution what will happen in the event of a closely fought plebiscite, the result of which commands no majority in the legislature (even after a General Election) and which the executive doesn’t know how to implement. It’s hard to see how a written constitution could deal with this situation, although it might perhaps make a ruling on the circumstances under which a plebiscite becomes and remains binding on Parliament.
Ostensibly Britain gets around the problem experienced in America by making sure the Government is made up from the majority party in the House of Commons. This ensures that under normal conditions the Government can enact its programme without Parliament getting too much in the way. The downside to this is that Parliament and Government are elected in the same election and are essentially the same group of candidates, so there is no natural separation between executive and legislature. This means other checks and balances are needed. An important one is that Government is not supposed to be conducted by one individual with supreme executive power but by a Cabinet of equals. Another is that the main opposition party has official status and certain Parliamentary rights and privileges.
General Elections in the UK are a subtle dance, because although technically all people are doing is electing their local MP, in reality they are electing the Government. This makes party politics an essential part of the UK system. It isn’t just a convenient marketing tool that allows busy people to choose candidates based on easily recognised brands; in the UK, parties are a constitutional necessity. Without them there would be no reliable way of choosing a Government that would represent the public will. This gives the larger political parties- the ones that normally form the Government and opposition - extraordinary power.
Having described what is supposed to happen, it will be obvious that these are normal circumstances. Let’s start to check off the challenges facing the system as we stand.
1. The most politically salient issue of the day has somehow become Brexit. However both the governing and opposition parties are split on the issue. The constitutional role of the major political parties makes this a real problem. In the past Britain has got itself through when one of the main parties is split, but having both split at the same time on the same issue means two things. Firstly a General Election involving the traditional parties does not resolve the issue of Brexit; secondly, normal party discipline in Parliament and in the wider politisphere cannot work. The two main parties have therefore become largely impotent on the most salient issue of the day.
2. Partly as a result of this lack of consensus within parties (especially within the Conservative Party) Brexit was subjected to a national plebiscite, the 2016 EU referendum. The result was close but decisively in favour of Brexit. Realising that there was no natural majority for Brexit in Parliament, the Government looked to take control of the process. Parliament denied this, principally through a vote that required the Government to bring back the deal it makes with Brussels to a Parliamentary vote. With the vote on the deal looming, Parliament continues to pass amendments to Government legislation requiring it to bring back proposals to Parliament in various forms. Parliament is doing its job under the constitution holding the Government to account and stopping it from adopting over-weaning powers. The Government is also doing its job because it sees itself as simply trying to implement the result of the referendum, which it is entitled to do.
3. Before it voted to take control, Parliament had already agreed that the Government could activate Article 50, which sets a two year countdown to the date on which the UK would leave the UK, and which was activated in March 2017. Invoking Article 50 put the Government on the backfoot in its negotiations. With a free hand from Parliament the Government might have been able to manage this, but a deal would now need to satisfy not just Brussels and not just the Cabinet (and Cabinet Ministers can be changed) but also Parliament.
4. The Prime Minister called the June 2017 a General Election about Brexit but with the main political parties split, this was never likely to be the case. As it happens voters could still have made it a Brexit election by voting in large numbers for parties with clear stands on Brexit. But General Elections are not single-issue plebiscites, so this was never going to happen. In fact voters did the opposite- they voted in larger numbers than ever for the two split parties. Worse, the General Election resulted in the governing party losing its majority, so it now became a minority government dependent on other parties to secure a majority. To achieve this the Government went into a confidence and supply agreement with the DUP of Northern Ireland whose twelve MPs gave the Government a majority. The DUP became another party which Government would need to consider in its negotiations.
5. Meanwhile the 2016 Referendum starts to recede into the past, which begs the constitutional question, how long does a referendum result stand? Representative democracy works on the basis of term limits, in the UK five years. This means that there is a statute of limitations on power and that eventually the losers in a democratic election get another go. With the referendum result, which was a close one anyway, now more than two and half years old and with the intervention of a General Election, is the referendum result still valid? There is nothing written into UK law that gives an answer to this so it is a political question which has become a bone of contention between the pro-Brexit and pro-Remain sides.
6. Parliament must agree a final deal but with the clock ticking on Article 50 the default position if a deal is not agreed is a ‘no deal’ Brexit on 29thMarch 2019. Many people believe a ‘no deal’ Brexit would be painful or even calamitous for the country, including many who otherwise support Brexit. Some Brexiteers are even saying that remaining in the EU would be better than ‘crashing out’ with no deal. There is no majority in Parliament for no deal Brexit, opinion polls suggest there is no majority for it in the country, and there may not be a majority for it in the Government either.
7. However the deal the Government has negotiated and which is now before Parliament is unpopular with all sides. It is not Brexity enough for Brexiteers and not Remainy enough for Remainers. Those who would happily move forward on the basis of no deal only have to vote the deal down, but for everyone else (the majority), the triggering of Article 50 means that when the Government’s deal inevitably loses, some other option needs to take its place. But there is no consensus over what that should be.
As to what happens next, it is hard to say. The party system on which UK Parliamentary democracy largely depends is broken, at least for now and perhaps permanently as far as the current parties are concerned. However it’s not so easy in the UK to throw away old parties and create new ones. Some people blame the electoral system for this, but actually it has more to do with the power of the parties themselves. A General Election may well come about if the Government falls, but it is hard to see how it could resolve the issue of Brexit.
At the same time the Referendum, which was supposed to resolve the issue in the absence of party consensus, has no clear role or status constitutionally. Legally it was an advisory plebiscite, but politically for Brexiteers it has been made a totemic symbol of popular democracy. The constitutional position is that a General Election trumps a referendum every time, because you cannot run a complex modern democracy by plebiscite, but politically the referendum as a form of democracy has itself become a football. So a second referendum may help, but for some this would be a betrayal. In any case it needs to ask a question, or more likely a series of questions, that resolves the issue.
Meanwhile the rhetoric is ramped up with the Government telling us that Parliament is acting unconstitutionally and certain Parliamentarians making the same accusation against the Government. On balance Government has probably taken too much on itself and has rightly been tugged back by Parliament, but you can see why Government took this approach. But in the process, trust between Government and Parliament appears to have been destroyed. Everyone is invoking the name of democracy and telling each other and their supporters that democracy is about to be denied to them by the other side, which is dangerous rhetoric when the democratic system is under such strain and when demagoguery is already on the march across the globe.
Remarkably, the country now faces a set of challenges which is larger and more far reaching even than Brexit. It is about whether its famously unwritten constitution, with its reliance on powerful political parties and its ambiguous cross-fertilisation between executive and legislature, needs fundamental reform. Ironically many of the traditional defenders of the constitution who have been at the forefront of testing it to its absolute limits.
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