OPEN LETTER TO PARLIAMENT

Dear Members of Parliament,

Your three years of torturous work have brought you to an unwanted conclusion: that Brexit will not happen. The balance of opinion in Parliament is that, given the referendum, you should deliver Brexit. Your conclusion, then, is not because Brexit is undesirable, but in spite of it being desirable. You have not yet articulated this conclusion in clear language, a difficult step to take, but this is where your deliberations have come to. The European elections, pushing the country and Parliament deeper into division, should be the catalyst.

There are two ways to Brexit. One is that Britain leaves the EU on WTO terms. You have considered this very carefully, on several occasions, and decided it is not possible. Parliament is not going to vote to cut British people’s standard of living. This door is shut.

The other way is with a deal. Here, you have looked behind every leaf and turned over every stone, and found no avenue. The reason, not easily visible behind the Parliamentary fog, is that no deal is available – Mrs. May’s deal, Labour’s customs union, Norway plus, whatever – that does not mean Parliament demoting itself to a rule-taker. It is not possible for Britain’s ancient Parliament to commit to abiding by laws that Britain has had no share in making. This door cannot be opened.

In the process, serious costs have incurred to our political system. Britain’s constitution has been steadily deteriorating. The bond of trust between Parliament, people and government is broken. It is often argued that unless this or that is done, people will never trust Parliament again. Too late, ladies and gentlemen, the damage has already been done.

The second cost is that the Union of the United Kingdom is falling apart. Scottish nationalists, exploiting the constitutional void, are pressing for a second round on independence. As things stand, they will now win it – and the United Kingdom will be no more.

Parliament does not want to sit by and see the constitution break down, the country being ungoverned, and the union fall apart, but has not been able to arrest the downward spiral. That, Members of Parliament, you must now do. When the nation is deeply divided, it falls on Parliament to decide. When procrastination means more damage, it falls on Parliament to act.

Many of you, probably a majority, are coming to the view that if Parliament cannot decide on a Brexit solution, there should be a second referendum. Better that you untie the knot yourself; better for the country, better for the constitution, better for Parliament. Very difficult, of course, but much better.

The first step is to articulate the conclusion that Brexit has come to a dead end because it cannot happen. This will be painful but it has to be done. The more you wait, the deeper the damage and the more the pain.

The second step is to recognise that the country is in a crisis that politics as usual is unable to resolve. This we see before our eyes every day; the country is not being governed. A new party government under a new prime minister, and the paralysis persists. You should now form a temporary caretaker coalition government. This government, under the leadership of none of the party leaders and composed of middle of the road MPs from both sides, should be tasked with getting the wheels of government turning again, recalling Article 50, re-establishing relations with the EU, and preparing for a general election next year.

Yours respectfully, Professor Stein Ringen, King’s College London

BREXIT AND THE BRITISH CONSTITUTION

Among other things, Brexit is a constitutional crisis. No one in their right mind could wish for what has befallen the British people, yet their constitution did not award them protection. With chaos a reality, nor is the constitution able to rescue the British from misfortune. Damage has been caused to the polity and economy, and to the nation’s standing in the world, that it will take years and years to repair.

Brexit is supposed to be about Parliament’s sovereignty.  Yet, what it has revealed is that Parliament is not sovereign. It took a court case to decide what should have been 100% obvious, that if the country is to embark on fundamental constitutional change, that must be by a decision of Parliament. Through the process, it has been a never-ending battle for Parliament to have any role of decision-making, except to ratify what the government presents to it, if that. The language is astonishing: it is being argued over when and how Parliament will “be given” a right to vote. If Parliament is sovereign and wants to vote, it votes. If someone else (the government) is in a position to “give” it the right to vote, it is not sovereign.

The Parliament that is supposed to be sovereign, does not have the instruments to act accordingly. In a sovereign Parliament, it is for that Parliament to decide how to deal with matters put to it by the government. But Britain’s Parliament is not in charge of its own agenda. A sovereign Parliament can make such amendments as it wants to what the government proposes, but in Britain’s Parliament the procedures are so Byzantine that no one knows what and how the lawmakers can modify what the government proposes.

Brexit has shown that the British constitution is itself without protection. It should not be possible for major constitutional change to be put in motion on the whim of a prime minister, yet just that happened. When, well into the process, the next prime minister decided to call a snap election, that happened in spite of Parliament having legislated (in the Fixed-term Parliaments Act 2011) precisely against strategic snap elections. But Parliament was unable to uphold its own law.

The reason constitutions should have protection against being abused by politicians of the day for strategic reasons, is that it is impossible to undertake major constitutional change without careful deliberation over some period of time. Most written constitutions have provisions that impose careful procedure on constitutional change. The British constitution has no such protections, whereby it has been possible for the crisis to unfold.

The purpose of careful deliberation is to build some reasonable consensus behind proposed changes, and to stop attempts for which no reasonable consensus can be built. Brexit is a crisis of imposing major constitutional change on a population and political establishment against the absence of any semblance of consensus.

Doing that is not only careless but IMPOSSIBLE, as can be seen in a process that has brought British politics to a choice between three impossibilities:

  • Brexit with no deal, which would destroy the nation’s economy;
  • Brexit with a deal, which would demote Parliament to a rule-taker and cause the break-up of the Union;
  • No Brexit, which would disregard the result of a referendum called by Parliament itself.

When the dust finally settles, in whatever way, it would seem imperative to give very serious through to improving a constitution that has so badly let its population down.

BREXIT – WHAT’S DEMOCRATIC?

Jo Johnson, when resigning from the government last week, said it would be a democratic travesty to not have a second referendum. Was he right? Brexiteers claim that, since there has been a referendum, the matter is settled democratically. Are they right?

No, they are both wrong. “Democratic” does not solve the country’s and Parliament’s dilemma.

A policy is democratic if it has been decided by correct democratic procedure. Hence, the referendum was democratic and the follow-up on the referendum has been democratic. But also, whatever Parliament decides at the end of the process will be democratic.

Even if a policy has been decided democratically, that does not necessarily make it a good policy. Democracy gives the people power and makes it less likely than otherwise that their representatives will embark on policies that are not in the national interest. But people power is no guarantee that representatives will not make bad decisions. Democratic decisions often turn out to be unworkable.

The fact that a policy has been decided democratically is not a reason to stick with the policy if it turns out to be counterproductive. Parliament overturns or changes its own democratic decisions all the time.

Britain is set to leave the EU on 29 March next year. If that remains Parliament’s decision, it will be democratic. That may or may not be a good decision but it will be democratic.

If Parliament decides against Britain leaving the EU, that will be democratic. Again, it may or may not be a good decision but it will be democratic.

If Parliament decides on a second referendum, that will be democratic. Yet again, that may or may not be a good policy but it will be democratic.

Parliament is in a terrible predicament. MPs want to behave democratically but “democratic” does not let them off the hook. Asking what is democratic solves nothing. The question before MPs, which they cannot avoid, is what decision is right for the country. Democracy, obviously, does not stand in the way of a democratic Parliament doing what it thinks is right for country and citizens.

WHY BREXIT WILL NOT HAPPEN – YET AGAIN

The fog is lifting. The plot is thickening. Minds are being concentrated. Brexit has turned out to be a national nightmare.

The UK-EU negotiations are clarifying the choices. Per now, August 2018, the British people and their Parliament have in front of them a menu with three options.

  • Alternative 1: There will be a deal along the lines of the government’s Chequers agreement.
  • Alternative 2: Britain leaves the EU without a comprehensive future trade deal and on World Trade Organisation terms.
  • Alternative 3: Brexit is suspended and Britain remains a member of the EU.

These are the only available options. A deal may be struck along the lines now under discussion. The government has concluded that this is the only kind of deal that is available, and a deal of this kind might be acceptable to the EU. Britain leaving on WTO terms is undesirable, but could happen. The government is making contingency plans for this eventuality. Britain remaining in the EU could happen if there were a change of mind.

The problem, however, is that all three available outcomes are impossible, not one or two of them but all three.

  • Alternative 1 is impossible because it implies Britain making itself a rule-taker of rules it has had no say in making. That is impossible for one of Europe’s big powers. A small country like Norway can live as a rule-taker, but not a big power. A vote ostensibly to take back sovereignty cannot result in the country diminishing itself to obeying other people’s rules.
  • Alternative 2 is impossible because it would risk the disintegration of the United Kingdom and come with other costs. It would give the Scottish nationalists the arguments they need to enforce and win another independence referendum, and put Irish unification back on the agenda. The economic costs, and costs to other forms of European collaboration, would be unacceptable.
  • Alternative 3 is impossible because Parliament has put the question of EU membership to a referendum and the referendum has decided that Britain will end its membership.

There are no good options available. In the end, Parliament must decide. Somehow, Parliament must cut through and choose between outcomes that all have their own impossibilities.

The ongoing negotiations will reduce the menu from three to two choices. If there is a deal, the choice will be between Alternatives 1 and 3. If there is not deal, it will be between Alternatives 2 and 3. In the first case, will Parliament reduce Britain to the status of rule-taker? Impossible. In the second case, will Parliament put the Union itself at risk? Impossible.

These matters will come to a head in Parliament later this year, or early next year. Neither Alternative 1 nor Alternative 2 will command a majority. The government will fall. There will have to be either another government, possibly a broad coalition under fresh leadership, or a new election, or a second referendum, or some combination of these.

 

THE ENGLISH ILLUSION

British political thinking (or more likely English, as so often when something is said to be British) will have it that governments need to be strong in order to deliver. They must have a solid base and autonomy of action, and they must be in charge. It is the strength they have behind them that determines what they can get done.

Because of this prevailing view, Britain holds on to an election system in parliamentary elections – first-past-the-post in single representative constituencies – that is likely to preserve a near-to two party system and to produce a majority in Parliament behind one of the two major parties although none of them are likely to obtain a majority of votes. Smaller and aspiring parties call for a change in the election system towards proportional representation, but that is consistently blocked by agreement of the major parties. They obviously want to stick with what is to their advantage, but they justify that with the argument that the present system makes for governments that are able to govern.

Furthermore, because of the same prevailing view, British parliamentary democracy has been set up to work by rules that give the government control of Parliament’s agenda. It may sound strange to non-Brits, but in a system in which the sovereignty of Parliament is the Holy Grail, that sovereign Parliament is not in charge of its own agenda. The Leader of the House is a member of the Prime Minister’s cabinet and in charge of arranging work in Parliament according to the expediency of the government. The defence of this odd arrangement is that the government, to be able to deliver, must be free to get on with its business without having to deviate according to the whims of a Parliament that might decide on other priorities.

Other democracies work differently. In many of them, coalition or minority governments are the norm. Some, such as Germany and the United States, have detailed constitutional designs of checks-and-balances that deny their governments the autonomy that in the British view is essential. If we look to the record of effectiveness in different systems, it does not seem, to put it carefully, that Britain stands out in any advantageous way or that governments in muddled (through British eyes) systems do worse in delivery. Comparing the effectiveness of governance in Germany and Britain, for example, it’s clearly Germany One, Britain Nil.

But that does not sway the prevailing view in Britain that remains wedded to the theory that government delivery depends on government strength.

That theory may seem to get some support from other quarters. Today, many see dictatorial China as a system that has the edge in ability to deliver, and the Chinese leaders are not shy in promoting their brand of authoritarianism as superior to dithering democracy. Strong-man autocracy is making itself attractive not only in China but also in, for example, Russia, Turkey, and some of the new democracies in Europe where democratic culture is so far not strongly entrenched, such as in Hungary, the Czech Republic and Poland. In America, President Trump gives the impression of looking to his Chinese and Russian colleagues, Xi Jinping and Vladimir Putin, with a mixture of admiration and envy.

Here again, the record does not give much support to the theory of government strength. The best evidence is in the World Bank’s “Worldwide Governance Indicators,” of which include “government effectiveness.” The highest scores are for the countries of North America, Western Europe and Oceania, all democracies. There are no non-democracies in the top range of this indicator. In East Asia, Japan, South Korea and Taiwan all have high scores for government effectiveness, while China, the darling of democracy’s detractors, is in the middle range, in a group of countries that includes, for example, India, Kazakhstan, South Africa, Argentina and Mexico.

The reason the evidence is not in support of the theory of strength is that what matters for effectiveness in government, once a government is in position, is not how much force it has behind it but how it is able to deal with those who stand in front of it and on whose obedience and acquiescence it depends, from its own officials, via organisations of business and civil society, to the mass of ordinary citizens. It comes down not to muscle but to behaviour.

In Britain, we would be better off obeying evidence that theoretical doctrine. That should lead us to constitutional reform. British parliamentary democracy, contrary to the English illusion, does not do well in delivering for us. Such reform should include, first, new working arrangements in Parliament to give Parliament control of its own agenda, and second, a new election system of proportional representation.

 

WHY BREXIT WILL NOT HAPPEN (yet again)

We’ve come a long way since the referendum, more than a year and a half ago (23 June 2016). We know more today than we did then. We know that leaving the EU is not a simple matter of cancelling a club membership but a very complicated business with consequences for all aspects of national life. We know that it will take more time than then envisaged so that a “transition period” of perhaps two years has been agreed after the date of formal exit.

If the decision were to be made today, it would be made on the basis of knowledge that we did not have then. A referendum today might still have had the same outcome, or it might not, we cannot know.

When we get into the spring of next year, we will know more again. We should then know more about the relationship between Britain and the EU when/if Britain leaves. Someone will then have to judge whether it is then in Britain’s best interest to leave, knowing what we then know. What that someone will then conclude we cannot know now – but someone will have to make the judgement.

That someone is Parliament. MPs may or may not like it, but it will be Parliament’s burden to judge what is in the nation’s interest, the facts being what they will then be. The referendum notwithstanding, leaving or not will be Parliament’s decision.

If Parliament were to decide that Britain should not leave the EU, would that be undemocratic, given the 2016 referendum? The answer is, no. Parliament is the supreme authority in Britain’s democracy and the custodian of the nation’s well-being. It was Parliament that triggered Article 50 of the EU Treaty (on 29 march 2017), and it is Parliament that must decide what is best at the end of the negotiation process, on the basis of the facts as they will be then. It is standard for Parliament to change its mind. If a law has been passed that turns out to work poorly, Parliament will change it. That is not “undemocratic” just because the original law was passed democratically.

If Parliament at that time were to conclude that it would be best for the country to change its mind, it is possible that it will call another referendum. That would not be necessary for democratic reasons – it is in Parliament’s authority to decide – but Parliament might for political reasons see no other way.

What judgement Parliament will make in a year’s time, we cannot know. But Parliament is well aware of the burden it carries in having to make the judgement. This is being worked on in Parliament day in and day out. The action leading up to the final decision is and will be in Parliament.

Parliament’s final judgement will depend on the facts as they will then be known. The ongoing debate matters but the facts will decide. We are already seeing that changing facts result in changing constellations in Parliament. There is now a majority in Parliament for a deal in which Britain remains within a custom union with the EU.

My guess is that Parliament in a year’s time will decide that it will be best for Britain to remain a member of the EU. It will turn out that leaving will be too costly, in six ways:

  1. It will be too costly economically. The EU gives Britain seamless trade and economic collaboration with its biggest and most important markets. Introducing impediments on that trade and collaboration will bring burdens onto Britain’s economy.
  2. It will be too costly in terms of other collaborations, such as in science, education, health care, security, culture and more. It will be costly for Britain to make itself a second-class partner in collaboration.
  3. It will be too costly in terms of risks to Britain’s own union. Brexit will give the nationalists in Scotland the arguments they need to push through independence. A division of some kind of border will re-emerge between Northern Ireland and Ireland. The Irish settlement will be put in danger and the question of all-Ireland unification will return to the agenda.
  4. It will be too costly for Britain’s standing in the world. Britain on its own will be a small country in a big world, without much influence. Europe unified is a world power. By leaving the EU, Britain gives up the clout is has as a partner in the European block.
  5. It will be too costly in terms of the younger generations’ future. The European lifestyle of mobility, multi-nationality and borderless living in education and work will be made less available to young people in Britain.
  6. It will be too costly in terms of the damage imposed on friends in Europe. The European Union is a political project. The aim is to transform Europe from a continent in enmity to one of nations tied together in the security of bonds of collaboration. By turning its back on this project, Britain does damage to a cause that matters deeply to friends on the continent.

 

DECISION AND DELIBERATION

Decisions made by a democratic National Assembly (or Parliament or Congress) have democratic legitimacy. That’s what we want in a democracy, decisions that are valid because they are made democratically.

However, strangely enough, the democratic legitimacy of decisions correctly made can sometimes be a problem. Whatever the National Assembly decides, must be correct because it is democratic. If someone is able to get the National Assembly to make a decision in their favour, say in a matter of taxation, they have won, because the National Assembly has put the stamp of “democratic” on that decision.

One agent who has an interest in getting the National Assembly to make certain decisions is the government. Governments have agendas they want pushed through, and they want to do that with as little trouble as possible from the lawmakers. National Assemblies are therefore under pressure to produce certain decisions and to do so without resistance.

The potential problem here is that this may push the National Assembly into making badly planned decisions because the government is desperate to get those decisions made that it has promised the electorate and to get the Assembly’s stamp of “democratic” on them. Such bad decisions are a big problem: since they are democratic, it is very difficult to overturn them and the country is stuck with potentially serious consequences of mistaken decisions.

Such mistakes happen. A case in point is Brexit. Then Prime Minister Cameron was able to get Parliament to sanction a referendum in a quick and easy decision without giving him any trouble or resistance in the matter. That was clearly a mistake. The country is now tearing itself apart and is unable to extricate itself from the mistake that has fallen down upon it. (Although it is my belief that Parliament will eventually find a way of correcting this mistake, it is, as we are seeing, very difficult to overturn a decision that has the legitimacy of a referendum behind it.)

The lesson is that National Assemblies should be able to make good decision and protected from making bad ones. Their decisions should be democratic but they should also be good, productive and workable, and certainly not counterproductive.

National Assemblies need assistance to manage the difficult combination of democratic and productive decisions.

They need the assistance, first of all, of protective procedures. Procedure is a boring matter for those of us interested in politics, but terribly important. National Assemblies need to impose rules upon themselves whereby they force themselves to not making decisions without careful scrutiny of consequences. They must avoid knee-jerk decisions because such decisions are in high risk of being bad. They must give themselves time and they must take themselves through routines of scrutiny. The Brexit decision, for example, was taken by Parliament without any preliminary work on what the consequences might be, and we are now paying the price.

They need assistance, secondly, in knowing what is in the interest of the people. One might think a good way of doing that is to ask the people, for example in a referendum. But we now know, from modern psychological research (such as by Daniel Kahneman who won the Nobel Prize in Economics for his research), that this is too simple. You and I and all of us are prone to making mistakes about our own good because there are mechanisms of bias at work in our minds. Our instinctive preferences are not necessarily what we really want. It turns out that people often change their minds and correct their preferences if they are given the opportunity to reflect and work on them with some care.

From this, political scientists are concluding that the popular will is not something that just exists in the population but what emerges from what they call “deliberation.” The German theorist Claus Offe has suggested that National Assemblies should have the support of more sophisticated information about “the will of the people” than raw expressions of preferences. He suggests “deliberative panels” consisting of a random sample of the population – he calls them “citizen deliberators” – charged with working their way through appropriate procedures from raw preferences to “reflective preferences” in important political matters. He thinks the panels should be constituted by some kind of lot among all citizens, that their task would be to help both citizens and lawmakers to form considered judgements, and that their authority would be exclusively advisory for National Assemblies.

As often, original ideas on first encounter seem odd, but this suggestion is really quite common sense. The reason we have National Assemblies, is that in a big population we for practical reasons must appoint a sample of the population to make decisions for us. If preferences depend on deliberation, the same logic would apply to the pre-decision process of forming preference. We will not get proper deliberation unless we design proper procedures to do it.

As for additional panels to advise the National Assembly, that’s the rationale of for example the House of Lords in the British Parliament and of various other “upper houses” in other national legislatures. Offe’s idea is slightly different, in how the panels are made up and precisely what they would do, but the idea is much the same.