AC GRAYLING: The parliamentary farce which shows why we need a referendum based on facts

In the current state of what passes for democracy in the United Kingdom, this picture looks Utopian. We see instead sharply divided party politics, an almost complete absence of bipartisanship on matters of major national concern, and divisions not just between parties but within them, fuelled by careerism, ideology, and the influence of party activists outside parliament who constitute a tiny proportion of the general electorate.

This unhealthy situation is made worse by the fact that the UK’s weak and disorganised constitutional arrangements do not constrain the effects of party division, factionalism and careerism in politics. This is why, since the mid-1970s, the UK has increasingly turned to referendums to deal with questions that parliament itself no longer feels capable of addressing.

The result is a mess, because representative democracy is contradicted by the use of referendums. Leave aside the fact that the complex issues at stake cannot adequately be handled by simple yes-no questions even if every voter were thoroughly well apprised of those complexities. For either the people send representatives to parliament to do the serious work of handling those complexities on their behalf, subject to recall (being voted out) if they do a bad job, or the people decide every issue themselves directly in referendums. For obvious reasons the latter would be a drastically suboptimal way to run a country.

The contradiction between representative democracy and the use of referendums resides in this fact: the UK’s constitution accords sovereignty to parliament, a sovereignty that cannot be overridden by anything other than a later parliament. This therefore includes referendums: all referendums can only, as a matter of constitutional principle, be advisory, and can never bind parliament or a government. It is entirely a matter of political decision in parliament whether to take the advice a referendum offers. But by calling a referendum, and thus having abdicated the responsibility to address the question asked in the referendum, parliament has thereby made itself impotent to decide whether or not to accept the advice.

Since 1975 the UK has made increasing use of referendums. The reason is obvious: it is that parliament and the organs of governance in the UK are no longer up to the task they are meant to fulfil. The reasons for this weakness and dysfunction, in turn, are as follows.

British government once worked behind a veil that obscured from public view what was happening in Westminster and within the political parties. That veil has thinned because of television, including the televising of parliament, and the decline of deference in the press. Awareness has grown that the first-past-the-post (FPTP) electoral system alienates people from the political process, because the majority of voters is disenfranchised by it at every election: almost all governments are elected on not much more than a third of votes cast, the other 60%+ of voters having no representation in parliament. Politics is more clearly seen as an in-house, tribal, careerist affair, and the merits or (more usually) otherwise of individual politicians are more exposed.

In addition to the woefully undemocratic nature of the FPTP electoral system, another stark flaw in the UK’s constitutional arrangements compounds the problem: the absence of a separation of powers between the executive (the government) and the legislature (parliament). This is because the government is drawn from the majority party in parliament, which means that the executive controls parliament. Instead of being answerable to parliament, scrutinised and challenged by it, it tells parliament what to do by ‘whipping’ its majority to vote as it tells it. Select committees whose duty is to scrutinise government have no power against a whipped majority, so their efforts to hold government to account are limited or nil.

The only way that a government can be held to account in the House of Commons is for enough of its party to rebel against it. The tight system of party discipline – on which not only MPs’ career prospects but their very jobs wholly depend, together with the entrenched and unhealthy tribalism of British politics – make rebellion very hard, and therefore very infrequent. MPs are bribed with offers of government posts (which means more pay, more prestige, advancement up the ladder) and honours (knighthoods, eventual ‘elevation’ to the House of Lords), or they are threatened with ‘losing the whip’ (ejection from the party, deselection, ruined political career), together with other forms of blackmail, such as exposure to the press of personal secrets carefully gathered by the Whips for just such purposes. The Palace of Westminster lies outside the common law of England, so practices such as these – bribery, bullying and blackmail – rightly outlawed in the workplace everywhere else, are permissible there.

The result of this system is that any government in the UK is, as Lord Hailsham famously described it in a BBC lecture four decades ago, an ‘elective dictatorship’ by an oligarchy consisting of the senior members of the majority party in Parliament.

To all the above, add the archaic forms and procedures of parliament itself, a stodgy, sticky, formulaic set of processes which provides yet further protection to that oligarchy, insulating it from having its programme effectively opposed even when – as now, with Brexit – the majority of MPs know that the programme is harmful and wrong.

Governments can manipulate the constitution at will to protect themselves. The 2011 Parliament Act legislated that if a government loses a no-confidence vote in the House of Commons, that vote must be repeated a fortnight later to check whether the House is still of the same mind. This gives the government time to save itself by persuading, promising, bullying, etc., rebellious members of its own party to fall into line. The irony, indeed hypocrisy, in the contrast between this legal obligation for a second vote and the current government’s resistance to a second-thoughts referendum on EU membership, is stark.

The sum of the foregoing is that politics and government have lost the trust and consent of the people of the United Kingdom. Politics is seen as shabby and government as unreliable, operated by people too many of whom are as shabby and unreliable as the process itself. Parliament itself is aware of this; perceiving the loss of public confidence in its ability to act in the country’s best interests has enfeebled it, which is why in matters of national moment it ducks the duty which is the very reason for its existence, and holds a referendum instead.

Yet it is still able to manipulate the referendum process. Each of the five referendums that have been held in all or parts of the UK since the 1970s has been held on a different basis – a different constituency of voters, different provisions for thresholds or no thresholds, subterfuge on the question of the status of referendums and their outcomes: has their advisory-only nature ever been made public by any political party or government? – which itself is evidence of the flaws in our constitutional arrangements.

So, in sum: our political order is dysfunctional and weak, and it is this fact which has precipitated the present crisis. Parliament has failed both itself and – more importantly – the country in the serious matter of the Brexit disaster that its own failings have foisted on us. The parliamentary system is so arthritic in its procedures, and so undermined by the tribalism and partisanship of careerist party politics, that looking to it to remedy the historic mistake of the 2016 referendum now seems hopeless. Remedying that historic mistake, therefore, can only be achieved by putting the question of EU membership back to the people: another referendum, a second-thoughts referendum. But this time the referendum will be, because it has to be, a very different matter.

First, it will be a referendum based on information and knowledge. Let us recall that the 2016 referendum resulted in 37% of a restricted electorate voting for a blank cheque, having been offered no plans, no assessments, no programme, no roadmap, no awareness of consequences and difficulties. A few slogans and false promises, plus breaches of electoral law, secured that 37%. The outcome of that referendum is, accordingly, drastically unsafe. And worse: there was deliberate exclusion of groups who would be more seriously affected by a negative outcome than the rest of the electorate, who had a completely justified claim to a vote, and who would have voted Remain. Their deliberate exclusion was undemocratic and immoral.

What do the people of the United Kingdom really want, now that they know so much more, and have had time to think about it? They should and must be asked. Opinion polls are consistently telling us what they think; but opinion polls are not referendums. It is profoundly democratic to ask the people again, given the insufficiency and paralysis of the political order in today’s UK. An intolerable hypocrisy pervades those among politicians who are trying to block a referendum: they call for a third general election in four years (Corbyn), some Tories say they will put Theresa May’s ‘deal’ to parliament thirty times if necessary until they get the right result; the Tories have already had two leadership elections within three years. But a second referendum based on facts and greater knowledge? They have the temerity to describe it as ‘undemocratic,’ as if any vote by the people could be that. They say we must ‘respect’ the outcome of a referendum in which – to repeat, as must endlessly be repeated – crimes, lies, fraud, and exclusion of people with an intense and material interest in the outcome, resulted in a mere 37% of the electorate voting for Leave. Every claim that that farrago of a referendum should be ‘respected’ is an admission of complicity with its fraudulence and subversion of democracy.

A fair and clean referendum – on the facts, with everyone involved who has a genuine claim to a voice in the decision – is urgent and necessary. I confidently expect that it would result in a conclusive Remain majority, because any sensible assessment shows that membership of the EU, and participation in evolving it, is vastly in the best interests of our country and people as well as of our friends and partners in Europe.

But there can be no going back to the status quo ante 2016. Austerity has harmed so many people and the social fabric of our country as a whole. It has hugely increased inequality, which is a corrosive and dangerous wrong. It must be brought to an end, and the NHS and public services properly funded.

And there has to be a constitutional convention for reform of our political and governmental orders based on a codification of at least their fundamentals, so that there is clarity, consistency, and genuine democracy in both. Our politics and constitution is an Augean stable: it needs cleansing.

A fresh start begins with another referendum. There are calls for revocation of Article 50 instead of a referendum; this would be the simplest thing, yes, and a rational and wholly justified one; and in a sane dispensation it would have already happened (if the even saner thing – not triggering Article 50 in the first place – had not happened). But the divisions in our society, and the bitterness that has been generated within it by this disastrous turn of events, will – though they will remain for a long time – be far better accommodated by a referendum, and far sooner healed.

Suppose you have a properly inclusive electorate, and that over 55% of votes cast (representing 40% or more of the total electorate to conform with minimum threshold requirements, as in trades union strike ballots) in a fairly and cleanly conducted referendum, favour the Remain option. Those on the other side would have to accept it: that is democracy. The same applies to such as myself, an emphatic anti-Brexiter: if the Leave vote won a clean referendum based on what we now know about the consequences, I would accept it. What one cannot accept is the lies-based blank cheque outcome of 2016: that was a travesty. The UK deserves far better than cheating itself into impoverishment, marginalisation and fragmentation.

And the undeniable point, which Mrs May and other self-serving politicians insist on trying to gainsay, is this: no vote of the people can ever be undemocratic, when run with fairness, transparency, and inclusiveness. To get out of our current mess, one way or the other, it is urgent and necessary to have such a vote.