At the outset, I would like to make clear that, in writing this article, I am not lending my support to any argument that the EU referendum should be re-run or that the result should be overturned. In my view, any such argument is specious in the extreme, with its Liberal Democrat proponents appearing especially hypocritical. That the EU Referendum Bill received overwhelming support from all parties (the SNP excepted) is demonstrative of both the democratic inviolability of the outcome as well as the abject failure of Parliament to properly countenance the potential impact of an affirmative vote to leave the EU.
In presenting the question of the UK’s exit from the EU, a profound, multi-faceted and far-reaching change to the UK’s constitution, in such binary terms, the framers of the referendum question are arguably as responsible for much of uncertainty facing the nation as those on the Leave side who waged such a dishonest campaign. Indeed, the amorphous nature of the question posed unquestionably resulted in a vacuum in which the worst excesses of both sides were allowed to run wild, devoid of any common anchor to which voters could tie them. Loose talk of punishment budgets, hoards of Turkish immigrants descending upon our shores and overtly simplistic assertions on parliamentary sovereignty detracted from the very real and very significant constitutional resettlement that was being proposed. That such a complex and challenging endeavour should now be embarked upon following a relatively small and nationally disjointed majority is staggering.
A hotchpotch of ever-evolving Acts of Parliament, court judgments and conventions, the UK’s unwritten constitution rarely, if ever, requires Parliament to hold referenda to effect constitutional change. In recent years, the proliferation of referenda has been used more as an instrument by David Cameron to outsource Conservative party management to the larger electorate than due to any democratic or constitutional imperative. Constitutional change in the UK therefore tends to be quite fluid and mutable, allowing itself to evolve in line with societal change and technological developments. The benefits of this are apparent. The UK avoids being bogged down by disputes over the precise intention or meaning of archaic pieces of jurisprudence, such as we have seen with the Second Amendment to the United States Constitution. On issues such as same-sex marriage, the process for recognition was more straightforward and provided much greater scope for parliamentary leadership than, for example, in Ireland where a constitutional referendum was required.
However, on larger questions such as EU membership, the UK’s constitutional framework has, in comparison to other countries, proven itself utterly powerless to properly protect its citizenry from the risk that fundamental, revolutionary and even existential change can be pushed through on a whim, without any kind of robust, deliberative process and, at times, without even the consent of the majority of its elected representatives. In other European countries such as Ireland and France, constitutional changes of this nature tend to be subject to both the unanimous approval of the legislature AND by a majority of its citizens. In the United States, proposals for amendments to the Constitution must ultimately be approved by the legislatures of three quarters of the states. Simply put, a constitutional change on the scale of that which the UK now faces would almost certainly never have been accepted in any other country with such a meagre popular mandate.
Brexit will clearly necessitate radical and sweeping changes to the UK’s existing constitution in order to extricate ourselves from over 40 years of EU regulation. Accepting that the lack of a written constitution distinguishes the UK from other nations as unusually facilitative of these types of constitutional amendment, at this point it may be worth considering whether a new, written constitution would be desirable to act as a citadel against the transient, agitated passions of modern populism.
* Ciaran McGonagle is a Liberal Democrat member originally from Derry, Northern Ireland and based in Colchester. He is a solicitor working in financial services in the City of London.
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41 Comments
“unwritten constitution”
You mean uncodified not unwritten (it is written down, just all over the place without consistency), but generally an excellent topic for discussion.
And we could carry on having the opposite side of the equation – the people (the populists) not having a say on any EU issue.
There has been a three-party stitch-up regarding the European Union, and nobody outside of Parliament has had any chance to reject any EU treaty – other than reject the three main parties when voting.
@psi – pedantic 😉
“extricate ourselves from over 40 years of EU regulation”
I understood that all important EU regulations were already written into UK law. Those that are not we can simply ignore. Where we ceded control, such as with UK fishing grounds, can immediately revert to whatever rule went before. Not so difficult as all that.
Imo most EU regulations were mostly unnecessary paper-chases that imposed undue costs on small businesses, required a small army of overly-officious inspectors and often achieved the opposite of what was intended. But by far the biggest problem was that there was absolutely no avenue for feedback or alterations of rank bad law. one example of many I could cite is that of the obviously stupid (to everyone surely) dumping at sea of dead fish which was only amended when Hugh Fearnly-Whittingstall made a documentary about it. This despite numerous protests by the fishing industry over many years that the EU just turned a deaf ear to. Significant savings can be made and significant growth achieved just by wholesale dumping of EU tat into the sea instead.
The EU is a couple of months shy of 23 years old. A lot of what those of us who voted leave want to extricate Britain from is even more recent than that. All this 40 years stuff is deceptive and designed to make the EU look more enduring and successful than it is. If you take it from its actual starting date 1/11/93 to the present it’s economic, social and security record is pretty poor.
Ciaran – totally agree about a written constitution with clear criteria for what referenda are used for, and what thresholds should be in place. I am not in favour of those who say that there is no place for referenda in our system, but the erratic and ad hoc usage of them needs clarifying.
As to the need for a further referendum, I would say:
a) yes, there is no obvious constitutional necessity
b) however, there is a clear necessity for more democratic scrutiny of this putative deal, and as you say the framers of the question need to take some blame for that and their failure to map out any post-referendum process ahead of the vote.
c) In the context of a complete lack of rules regarding referenda, one way democratic scrutiny of the post-referendum ‘deal’ could be carried out / endorsed by the public is a further referendum, and the possibility should not be lightly dismissed. This is not about undoing the first vote, but about clarifying the direction of travel after it.
d) Given the fact that this would be a confirmatory vote, if we did have a referendum, it would be reasonable to expect a higher threshold to carry out a U-turn, ie ‘having seen the deal arranged by HM govt, do you still wish the UK to leave the EU as previously decided in 2016?’ a 58-66% threshold required for ‘No’ to ‘win’ would seem OK to me, speaking as a Remainer.
e) Another way of scrutinising the deal could be a general election, but this would require any government to make its position absolutely clear in advance (ie ‘we endorse this deal, if you agree with us, vote for us, if you don’t, don’t). I very much doubt this would happen.
I suspect none of this will happen and the Tories will sail on, abusing and manipulating our existed constitutional patchwork as before…
We joined the European Community in 1973, not 1993. So 46 years, not 26. Yes, there was legislation before the Maastricht Treaty of 1993.
66% voted YES in 1973. 46 years of anti-EU press since then spread lies and falsehoods, meanwhile memories of the war and its causes, and the need to work together to avoid ever having another war between the major European powers, faded.
Sorry, correction: should say “66% voted YES in 1975”.
LDV *REALLY* needs an Edit button.
The flexibility of our constitution has been rather helpful. Rather than having major questions decided by The Switch In Time That Saved Nine we’ve had them decided by Prime Ministers. So if we have a written constitution it would be good to have it rather limited in scope: setting out what parliament is, how and when it is it called, what the Royal Perogative is and how and when it is used etc.
One advantage this gives us is that (as with the US and and most notably Australia), if you have a refurendum on for instance the EU it has to be in the form of a specific amendment laying out exactly what the result of exit would be. *looks pointedly at DC*
I agree entirely with you. A major decision of a constitutional nature should require more than a simple majority because 1- The massive change in question will impact everyone considerably forever, making it morally wrong for a small majority to impose it’s will on everyone else completely and indefinitely. 2- The vote needs to be conclusive for the future (a) to overcome any contemporary bias, such as protest against the then government or other issues not to do with the referendum question directly. (b) To prevent long term divisions in society due to a massive minority being ignored. (seeing this in EU ref now) (c) To prevent lack of overwhelming support leading to uncertainty and requests for a re-run. 3- An understanding that a “constitutional” change demands that you need to persuade a lot more than just half the people to support you, should be set from the start. 4- The rules must be clear, e.g What justifies a new referendum on the same subject? On what circumstances can parliament over ride a referendum decision?
In democratic systems, and organisations across the world a two-thirds majority is readily recognised as appropriate for major change decisions, and to make clear what the rules are, we need them defined in a written constitution. A clear issue with the UK referendums to date is that they were conceived by the government as a way of eliminating opposition on a particular issue in one fell swoop for the foreseeable future, with the belief that the government would always win. As you say, it would of course be entirely wrong to go back on the terms that the government expressed for the EU referendum, but looking forward we really need to make sure there is clarity and objective sense with common-sense objective rules that everyone understands written into a British Constitution.
We joined the European Community in 1973, not 1993. So 46 years, not 26. Yes, there was legislation before the Maastricht Treaty of 1993.
But there wasn’t, for example, the idea of ‘EU citizenship’ before that. There wasn’t a social chapter. There wasn’t a Working Time Directive. The EEC didn’t make nearly as many claims to cometencies over what should be UK-internal matters before 1993.
And since then the European Parliament has continued to try to expand its remit, attempting to become a sort of federal equivalent of Washington, D.C. with the individual member countries as mere states, more akin to Utah or Oregon or Navada than sovereign nations.
That is what the UK wants no part of. Had the EU remained just a customs union and trading block, without any attempt to further political integration, I doubt the vote would have been to Leave.
meanwhile memories of the war and its causes
Remember that the UK is the only European nation that does not need to be ashamed of its twentieth century. Unlike all the others, our motivation for joining the EU was never guilt about the war or residual PTSD from being occupied.
We never wanted to join a political union or a Europeans state, we just wanted to join a common market to sell our goods and services.
For that we were prepared to give up a measure of our sovereignty; but now the balance has shifted, more surrender of sovereignty is demanded and the economic compensations, now we are the fastest-growing economy in Europe rather than the ‘sick man’, are too few.
For us, Europe was never about building a glorious transnational state: it was about a cost/benefit analysis which back then favoured joining and now favours leaving.
I wish people would stop talking about Brexit as being a ‘divorce’. It’s not a divorce. We were never married to the EU. It was only ever a business partnership which we have outgrown and which now needs to be dissolved.
Bringing emotion into it helps no one.
@Paul Young
Interesting comments and and with respect:
If people chose not to vote that was in general entirely their choice and is how our parliamentary system operates – (virtually) everyone knew the rules of 50% + 1 vote?
I appreciate what you said re: the 2/3 majority, however the “EU” in its present form, trajectory and even name, did not exist in the 70s, so it was not ever specifically voted on in the original referendum?
It is reported in referendums that there is a “status quo” effect. In addition, “the kitchen sink was thrown at” remaining: Obama/IMF/government pro-EU “advice”, etc.. That Brexit was chosen was “against (virtually) all the odds” and a rerun might see a greater level of Brexit support.
Cameron has gone, May said “Brexit means Brexit” and UKIP are waiting in the wings for any backing away re: immigration control and sovereignty – https://www.youtube.com/watch?v=jaigq_p2bt0.
All the best and peace.
David Wright
The European Community is not the EU, which did not exist until 1/11/93. This is just under 23 years ago, not 26 or 46 years ago. Most of the really contentious developments within the EU actually date not much further than the late 1990s to early 2000s.
Dav, I have spoken to people who voted ‘Leave’ who wanted the EU to progress to a federal nation-state, and were frustrated that it had not made that journey, and with the resulting (as they perceived it) ‘betwixt and between’ state.
Statements that the UK ‘voted for X’ are slippery things. What we know is that the UK voted to leave the UK, because that was on the ballot paper. Why, is down to the mysterious sacraments of the democratic process in the mind of the individual voters.
How, and what it will or will not retain or become a member of, is certainly not agreed. That is the issue now.
Trying to decide what happens now based on only one reading of why what just happened, happened, may be unwise.
Sorry, a bit Yoda-esque at this end of the day.
“our motivation for joining the EU was never guilt about the war or residual PTSD from being occupied. ”
No, but was it – arguably, in part, possibly, perhaps – guilt about the economic failures of the 50s and 60s?
“at this point it may be worth considering whether a new, written constitution would be desirable to act as a citadel against the transient, agitated passions of modern populism.”
Two Questions:
1. Do you have anything against the principle of parliamentary supremacy? A codified constitution under the guardianship of the supreme court would effectively end that.
2. Is this a non-problem? Yes, parliamentary supremacy with an un-codified constitution doesn’t work when you hive of large portions of governance to a third party… But we fixed that on June 23rd, right?
@Matt (Bristol) “Statements that the UK ‘voted for X’ are slippery things. What we know is that the UK voted to leave the UK, because that was on the ballot paper. Why, is down to the mysterious sacraments of the democratic process in the mind of the individual voters.” – with respect, I somewhat doubt the Leave groups thought it was a particular mystery – through repeated polling, they found that immigration control and UK parliamentary sovereignty with all that entails were important, as well as financial control of the UK budget and they campaigned relentlessly on that basis in the face of extreme opposition and doing so won against many expectations. All the best and peace.
“‘Brexit’ supporter Amb. John Bolton goes ‘On the Record’ on ‘Brexit’s’ impact US security and foreign relations and he believes it will strengthen NATO” – https://www.youtube.com/watch?v=qwqPf-8aNwo – this was interesting regarding the reasons for Brexit. 🙂
https://www.youtube.com/watch?v=aRjl4biSmZ4 – For any pro-Brexiters, I liked the “theater” of BJ from 0-31 seconds in – it felt like “a moment in history”. 🙂
ISBN 0 7509 0187 X ” the death of the king meant that there had to be a general election” which made little difference, but the previous king had objected to Grey in the cabinet, which his successor did not, so Wellington was out for a while, before a U-turn.
I have not yet found out why this rule was introduced nor why it was abolished or lapsed into disuse. The “constitution” is for some a matter of incontestable principle while also providing unlimited flexibility and convenience when circumstances require.
Gordon Brown’s government tried to collate constitutional legislation, late in the day, but met opposition and lacked time.
I think we, and perhaps most people, would agree that allowing constitutional changes with massive and wide-ranging practical implications to be made on a wafer-thin majority of the popular vote, and without any of the details worked out, is crazy. The referendum was purely advisory and those who voted for it had no idea what they were supporting. It immensely frustrates me that so many of the political class are saying that the people have spoken and this must be respected. When we have a little more of an outline of what leaving the EU will mean, then we could have a real referendum.
I agree that the result is technically advisory. The difficulty however is that it is government policy to (somehow) enact the result. Parliament (and not just the Conservatives) has gotten itself into a real pickle here by not foreseeing the constitutional consequences of a Leave vote.
@Robert Pinsker – “those who voted for it had no idea what they were supporting.” – with respect, the Leave teams identified what people’s key concerns were: uncontrolled EU immigration / giving away parliamentary sovereignty / taking back billions sent to Brussels, etc. and repeated those “take back control” lines innumerable times – and Leave won against the status quo situation and extreme opposition.
“I think we, and perhaps most people, would agree that allowing constitutional changes with massive and wide-ranging practical implications to be made on a wafer-thin majority of the popular vote” – presumably not those who wanted change = the majority of UK voters?
“The referendum was purely advisory” – “theoretically” you may be right – however David Cameron understood what it “meant” and has gone from Downing Street.
All the best and peace.
Accepting that the lack of a written constitution distinguishes the UK from other nations as unusually facilitative of these types of constitutional amendment, at this point it may be worth considering whether a new, written constitution would be desirable to act as a citadel against the transient, agitated passions of modern populism
As this is a Liberal Democrat website, I assume people have thought through the implications of this, to whit, it would effectively take electoral reform off the table forever (you will never get a supermajority of the population to agree to such a massive change; even if you think that the AV referendum was more about Nick Clegg than the voting system (I don’t) you can’t possibly think that just a change of campaign face and asking about STV instead of AV will turn a 65% small-c conservative majority into a 66% pro-change one.)
Fewer than 40% of eligible voters voted to,Leave, fewer than thenTrade Union Act 2016 p
Made law on 4th May requires for there to be a legal strike in essential services. If 36.7% is to few for a strike it it is too few for major Constitutional change. It would be completely morally wrong and unjust for for a result achieved by a dishonest campaign based on myths, misinformation and false promises to stand unchallenged.
Leaving the EU is not in the national interest – as found by e Balance of Competences Review.
The referendum bill explicitly says that it is advisory only.
Please do not accuse me of being hypocritical. I certainly do not regard the arguments as specious. This matter is far to grave for this simply to be waved through without reconsideration. When those that won have had an opportunity to define what Brext means there must be a second vote by the people to decide between two clear choices.
This is the only reasonable way forward that stands any chance of uniting the country behind a significant majority of opinion.
Dav “that this is a Liberal Democrat web site” means nothing here. There is no restriction on posting. anyone with any views from anywhere can say what they like – and they do – frequently.
mike, you’re dodging the fact that this is the biggest political mandate [anyone] has received in forty years!
“that this is a Liberal Democrat web site” means nothing here. There is no restriction on posting. anyone with any views from anywhere can say what they like – and they do – frequently.
Yes but I assume the articles are written by Liberal Democrats (mostly, except where otherwise obvious) so I was surprised to see one advocating a course of action that would make reform of the voting system impossible, given that I thought reforming the voting system was the single thing all Liberal Democrats agreed on.
I support voting reform.
What I would *not* support is forcing it through via a narrow 51/49% result on a referendum question such as “Should we change our voting system?”.
There is a good case for reviewing the UK’s constitution and especially its centralised system of government (Scotland, Wales and Northern Ireland excepted). The government, instead of pressing ahead with abolishing the Human Rights Act, could throw this issue into the constitutional review cooking pot. But as things are, almost any change can be introduced by a government with the support of barely more than a third of the voters and barely more than half of the MPs. It would, unfortunately, be entirely in keeping with the Tory approach to devolution (we want you to have more local powers and this is the precise master-plan you have to stick to if you want that), if our current government pushed through constitutional change on the basis of its own authority alone. What is needed is a whole lot of local constitutional conventions feeding up to a UK one.
As for Liberal Democrat hypocrisy over the referendum result, it’s misleading to use support for the Referendum Bill as an argument. Liberal Democrats opposed having a referendum, but when it was clearly going to happen, supported reasonable arrangements for it while unsuccessfully proposing votes at 16 (Cameron may regret voting that down). I do think some arguments against the validity of the result are specious, but to propose putting the eventual agreement with the EU to a referendum is not, though personally I doubt if I’d support it. However, Tim Farron’s commitment to argue in a snap election for retaining EU membership and for re-joining the EU in a normally-timed election is in no way hypocritical. If such an election, fought with the parties’ policies on the EU clear, resulted in a pro-EU majority, constitutional practice and commonsense would say that had undermined the referendum result. The most likely outcome would be another referendum, though constitutionally, a new government could simply turn the ship around.
What I would *not* support is forcing it through via a narrow 51/49% result on a referendum question such as “Should we change our voting system?”.
Well, you’re never going to get a 60% majority in favour of changing it, so basically you’ve just ruled out voting reform forever.
Isn’t it a little arrogant to suggest that those who want to leave the EU should have to overcome a greater popular vote threshold than those who wish to implement voting reform.
I accept that you would not conflate the two but they are (arguably) of comparable significance from a constitutional perspective. Why should voting reform be passed on a narrow majority? Do you think that everyone will take the time to understand the practical implications of switching to PR?
I often ponder whether this kind of thing is the biggest practical hurdle for the LD’s to overcome – this misplaced assumption we are always on the “right” side of the argument. Its not necessarily always the case…
Isn’t it a little arrogant to suggest that those who want to leave the EU should have to overcome a greater popular vote threshold than those who wish to implement voting reform.
No! The impact on our position in the world and our trading relationship are greatly impacted by our membership of the EU, EEA, EFTA etc. and hence it is right that if we are to act on decisions reached through referendum, that we set criteria – that cut both ways.
As an aside, whilst I disagree with the interpretation being placed on the referendum result, if the result had been the other way around, I would also have disagreed with those who would have treated it as a green light for further EU integration and transfer of powers. Interestingly, having set the precedence in 1975 and now in 2015, there will need to be a second referendum covering the proposed Brexit options moving forward, which naturally will have to include a no change to the current arrangements (ie. membership of the EU) option.
As I’ve noted before on LDV, corporate governance mostly gets this right, with mergers and acquisitions requiring a clear vote from shareholders representing at least 50%+1 of the issued share capital. Whereas constitutional changes can be passed by a simple majority vote in a correctly convened and quorate AGM/EGM.
@Roland “there will need to be a second referendum covering the proposed Brexit options moving forward, which naturally will have to include a no change to the current arrangements (ie. membership of the EU) option.” – best of 3 :-)? All the best and peace.
It seems to me that people voted “Leave” because of the unremitting claim that “they-Brussels” are “telling us what to do”. IMO, most people resent being told what to do; by other people, “the government”, Brussels etc.etc.
The EU experiment was not based on the scientific principles that govern organisations, especially Ross Ashby’s Law of Requisite Variety. A Constitutional Convention that takes this Law into account is absolutely necessary if the United Kingdom wants to retain its cohesiveness as a nation state. Otherwise the ongoing devolution of political power to the regions is an abdication of responsibility by central government if the economic power to carry out these devolved political responsibilities is not also devolved.
This is why a constitutional convention is necessary not only in the UK but in the EU also.
My apologies for the unstructured comment above.
@Leave the EU – “best of 3 :-)? All the best and peace.”
Only 3! I got the distinct impression that the various Brexit campaigns had at least that number between them 🙂
No need to worry any more.
We are all united in Leave now.
http://www.open-britain.co.uk/
@JP – Anna Soubry – “No need to worry any more.” – for who? 🙂 All the best and peace.
One of the central Project Fear messages was Leave voters are racist. The reborn Project Fear (http://www.open-britain.co.uk/) now accepts that we are not racist.
“However, we must learn lessons. June 23 was a moment of change. The strength of feeling is clear. Free movement of people cannot continue as it has done. It has to be reformed. This was not an expression of prejudice but rather a desire for managed migration and concern that rapid immigration can put pressure on public services and local communities. Britain must be open to talent, but with more ability to act if excessive competition in labour markets hurts our economy.”
“But it was all right, everything was all right, the struggle was finished. Open Britain had won the victory over itself. It loved Vote Leave.”