WHY BREXIT WILL NOT HAPPEN (revised)

In spite of the referendum, Brexit or not is still the responsibility of Parliament. Parliament does not abdicate. Its charge is to look after the wellbeing of the population and country, and it is not possible for Parliament to walk away from that responsibility, nor in its nature to do so.

That is clear enough constitutionally. The referendum was advisory. Parliament could have decided to make the referendum binding but deliberately did not. It retained in law the authority to make the final decision and is not constitutionally bound by the referendum.

It is also clear politically. As we have moved on from the referendum, circumstances have changed and we have learned more about the meaning and consequences of Brexit. Brexit on the terms suggested in the referendum campaign is not deliverable. It is Parliament’s job to decide on the impact of how things are working out and what we are learning.

Imagine you are an MP today. You look into the future. You see, from one side, coming towards you an avalanche of necessary public investments: in infrastructure, in defence, in housing, in education, in social care, in the NHS. And you see, on the other side, low growth, low investment, lagging productivity, skill shortage. That adds up to an economy that cannot generate enough public revenue for necessary maintenance of society. You cannot avoid the question of whether it is compatible with your responsibility to let the country cut itself off from its most important community of trade and economic partnership.

You look to the British national landscape. In Scotland, Brexit will give the nationalists the arguments they need to push through independence. The Union will break up. In Ireland, a new border, more or less hard, will cut through the island and disrupt the peaceful coexistence that has been achieved. The worst scenarios may or may not materialise, but you cannot avoid the responsibility for exposing the Union to high risk. You turned you back on that responsibility in sanctioning the referendum. You cannot do it again.

You look to your own institution, to Parliament. You there see no settlement and no coming together around any shared strategy for implementing the referendum. Parliament has asserted its authority and to some degree taken charge, and pulled towards Brexit moderation. It has refused the government a free hand. The government’s original hard Brexit strategy has been killed. The principles of payment and a transition period have been conceded. You have learned that Brexit is not a simple matter of cancelling a club membership and you are trying to sort out in your mind what it really means.

Parliament’s confusion mirrors the population’s confusion. There is no “will of the people” out there. There is division, as reflected in the snap election. The division in the population carries through into Parliament and the Cabinet, and into the relationship between Parliament and government. Parliament is refusing the government a mandate of clarity and the government can do no more in the negotiations than muddle through without initiative, determination or direction. The risk is high that there will be no deal. Most MPs sit on the fence. They believe it is in Britain’s interest to be inside the European Union and they believe they cannot go against the majority in the referendum. That dilemma remains unresolved.

Politics in Parliament are even more tenuous than they look. Not only is the government without platform or support, both major parties have leaderships that in the European question are at odds with the majorities in their respective parliamentary parties. Leavers do not trust Remainers, Remainers do not trust Leavers. Backbenchers do not trust the front benches, and vice versa. The government does not trust Parliament, Parliament does not trust the government. The parliamentary truce is phony and not durable.

The talk of the town in Parliament that reaches the public is “how Brexit?” The talk of the town in Parliament that, for now, does not reach the public, is how Parliament can extricate itself from the mistake it itself made in calling the referendum.

MPs fear the uproar it would create if they exercised their constitutional authority to override the referendum. However, they also recognise themselves to be caught up in a dilemma from which there is no happy outcome. The choice they see in front of them is between uproar now or long term damage to the country. What may look like a mess, is Parliament’s lumbering, convoluted, step-by-step manner of resolving its terrible dilemma.

WHY BREXIT WILL NOT HAPPEN

Parliament is moving towards preventing Britain from exiting the European Union. It is not there yet but in its lumbering, convoluted, step-by-step manner, that’s where it is heading.

Parliament carries the charge and responsibility of protecting the British people’s interests and well-being. It is not going to sit by and allow the country to cut its legs off. Critics of Parliament, such as myself, are often in despair of its ineffectiveness, but the historical experience is nevertheless that in the big questions, in the end, Parliament comes through.

Since the referendum, there have been huge shifts in Parliament in how to deal with the outcome. We started with the government’s determination to implement hard Brexit with minimal involvement by Parliament. Hard Brexit is now off the agenda and Parliament has asserted itself and continues to do so. It is denying the government any unambiguous mandate for how to negotiate in Brussels.

Parliament has enforced the acceptance that there must be a transition after the completion of negotiations in which Britain remains a member of the Union for some as yet not determined period. The view is strengthening that Britain must remain in the single market, which is code language for continued membership. The Norwegian solution of being part of the single market without membership of the Union – accepting the rules with no say in the making of rules – is impossible for a big country. The Labour Party has moved to the single market position, for (as they say so far) an indefinite period.

After the failed general election, there is a confusion of ambivalence in Parliament which perfectly reflects the confusion of ambivalence in the population. There are criss-crossing views in Parliament on Britain and Europe, with constellations in constant movement. In neither of the big parties are the leaderships representative of their respective parliamentary parties. Everything is in flux. Nothing is settled. Members of Parliament collude in corners and corridors day in and day out. The huge shifts we have seen so far are in continues motion.

More is known about the consequences. The argument that Brexit would be simple has been disproved. The argument that is would save money has been disproved. The argument that it would be economically costly has been proved: the British economy is now worth 10% less to the world.

The risks have been clarified. Trade and investments will suffer. The union will break up: Brexit will give the Scottish nationalists the arguments they need to carry the day. These risks may or may not sway public opinion but in Parliament they matter.

Can Parliament overrule the majority in the referendum? It is no simple matter for it to so do and it will, to put it carefully, be problematic. But, referendum or not, Parliament carries the final responsibility.

Parliament has the formal right to overrule the referendum. Constitutionally speaking, the referendum was advisory. In the British constitutional tradition, Parliament is sovereign and that sovereignty was maintained in Parliament’s remit for the referendum.

It also has the moral right. It has obeyed the referendum and started the process. That has moved us on. The facts have changed. Matters have been clarified. We know more. Parliament has a duty to deal with the world as it is and is not bound to dealing with it as it was.

The emotive language following the referendum is “the will of the people.” But there is no single “will of the people.” The population is divided, even in the referendum pretty equally. It is for Parliament to work itself through divisions in the population towards a reasoned position in which it pays heed not only to the (small) majority and the (large) minority in the referendum but also to the interests that were not reflected in the referendum, notably of the young who (regrettably) did not vote in the numbers they should have.

THE BRITISH ELECTION: DEMOCRACY WORKS!

Britain is in existential crisis. The union is in danger of breaking up. The country is exiting the European project of partnership. The duty of the government of the day in difficult times is to guide nation and people through. This government has instead tried to manipulate the crisis for party political gain and in defiance of its own population. That population has struck back to deny the government its reckless “mandate.” Democracy is a brutal affair. Governments that do not do the people’s work are supposed to be punished. It is democracy at work when they are.

It’s all about Brexit. The referendum settled the question of membership or not: Britain has decided to leave the European Union. But it settled nothing else, nothing about the terms of exit. All matters about Britain’s future relations to the EU are for Parliament to decide (as far as Britain is concerned).

The government, however, created a narrative according to which the referendum had also settled the terms of exit, a hard Brexit narrative. That narrative has no basis in the population which is divided down the middle on hard vs. soft Brexit. It then triggered an election in a scheme to get a majority in Parliament to allow itself to pursue its own Brexit without scrutiny. That was an attempted elective coup – and the electorate has rightly struck it down.

Before the snap election, the government had a majority in Parliament but not so much of a majority that it would not have to accommodate a range of opinions on how to take Brexit forward. That was a good political constellation for the nation in the circumstances. It was conducive to a compromise line on Brexit, corresponding to and respecting the deep divisions in the population on the matter, and to a cautious process under Parliamentary oversight. It was a godsend for a leader of stature to take the population as much as possible along in a difficult transition.

But that was not enough for this government. It turned on the people, lecturing them that it had the right to do Brexit on its own terms and that they had a duty to give it the “mandate” it demanded. Opposing views on the terms of Brexit were to be disqualified from influence.

It is a good day for democracy when the people punish a government that tries to subjugate them.

Of course, there are reasons why there is an existential crisis to manage in the first place, and those reasons are political. Britain was plunged into crisis by the unnecessary decision of then Prime Minister David Cameron to trigger the Brexit referendum (and before that the Scottish referendum). This was a gamble in which there was everything to lose and nothing to win, and a gigantic moral and political mistake. In triggering the snap election – another unnecessary election which I at the time described as “abusive” – Prime Minister Theresa May exasperated the crisis with another moral and political mistake.

Of course also, there are reasons why such grave mistakes could be made. Both the referendum and the snap election had to be ratified by Parliament. In both cases, the House of Commons did that in rapid knee-jerk fashion without putting any work into the decisions before it and their consequences, without giving itself any time for reflection and without anything like proper deliberation and debate.

So what we have here is a story of leadership failure under two prime ministers and of decision-making failure under a House of Commons that does not do its job. But also a story of the glory of democracy. When there are free and fair elections, in the end the people decide and cannot be taken for granted.

WHO CALLED BRITAIN’S SNAP ELECTION?

There will be Parliamentary elections on the 8th of June. Parliament was scheduled to sit until the next ordinary election in 2020 but the Prime Minister, Theresa May, decided to call a snap election while reflecting on the matter during some days of walking in the Welsh hills with her husband.

Only it was not the Prime Minister’s decision, but Parliament’s. Technically, the Prime Minister recommended to Parliament to call an election and Parliament so did, the House of Commons the very next day.

This provision came in with the Fixed-term Parliaments Act 2011 which removed the power to call snap elections from the Prime Minister. The intention of this Act is that Parliaments will sit five years, that everyone will know when the next election will be, and that Prime Ministers should not have the unfair advantage of being able to call an election whenever it suits his or her side. However, the Act also empowered Parliament to trigger an election before the end of the five years term, if there are exceptional circumstances and by a two-thirds majority in the House of Commons.

But although the snap election was technically called by Parliament, in reality it was the Prime Minister’s decision. It turned out that the Act had not practically moved that power to Parliament.

The 2017 election is unnecessary and has been triggered for obvious party-political and tactical reasons. It is exactly the kind of surprise election the 2011 Act was supposed to prevent. Why did Parliament go along with it? Even the opposition on its own had enough votes to deny the Prime Minister.

One answer is that the opposition caved in because it would otherwise look cowardly. That may be so but is not a sufficient explanation. The 2011 Act puts a duty on Parliament to consider if there are extraordinary circumstances to warrant an early election. The House of Commons, rubber-stamping the Prime Minister’s decision without delay, can hardly be said to have examined the circumstances carefully. It was simply ambushed. Remember that the House is not in control of its own agenda. It was for the government to decide that the House would deal with the issue the next day.

This is what should have happened: The Prime Minister recommends to Parliament that it triggers an early election. The House of Commons puts the matter to its relevant select committee for deliberation. That would, firstly, give the House a bit of time to collect itself and would enable debate on the matter in the press and in the country, at least a few days of time. Then, secondly, the committee would prepare a report on the proposal, putting it into its constitutional context and going over arguments for and against. The committee might make a recommendation to the House, or possibly majority and minority recommendations. Only then, and with the aid of careful deliberation in committee, would the House deal with the matter in plenum. The House would have escaped the ambush and it would be legitimate to turn the Prime Minister down if the deliberation had not turned up persuasive arguments for an extraordinary election. It might even be that the Prime Minister would not have called the snap election out of fear of being thwarted by Parliament.

Parliament might still have decided to grant the Prime Minister her wish, but it would not have been a foregone conclusion. And it is certain that without an institutionalised procedure of deliberation, Parliament could not have decided otherwise than it did.

Some general themes:

  1. It is not enough to technically empower Parliament in a certain matter. Parliament must follow up by instituting proper procedures to exercise its power with effect. Such procedures must be binding on Parliament itself so that they cannot be manipulated. The House of Commons should take control of its own agenda.
  2. The House of Commons does excellent work when given proper work to do. But in decision-making, it does not have adequate procedures and does not do the work it should.
  3. As things stand, Britain does not have a safe system of political decision-making.

BRITAIN’S ABUSIVE ELECTION

Another election in Britain now is unnecessary and damaging. The Prime Minister says the country needs strong leadership in the Brexit negotiations. But what we need is not stronger leadership but better leadership.

The government has had all the mandate it needs and all the parliamentary majority it needs. But the Prime Minister does not want to work in collaboration with Parliament. She wants to govern without a Parliament she has to pay attention to. That, however, is the kind of strong leadership that invariable leads a government astray. We know that in this country. It is the way of political decision making that leads to, for example, invasion of Iraq.

A reasonably balanced hand between government and Parliament is to the country’s advantage. It makes for deliberate compromise governing, which is the spirit of democracy. In the case of Brexit, the population is divided down the middle. There will be Brexit but it should be on terms that heed both sides of popular opinion. With a setting in which the government had to pay attention to a, at least somewhat, assertive Parliament, we could have had a practical Brexit.

The government has invented a straw man called “the will of the people.” The people have spoken in a referendum and its “will” is a hard Brexit. But that is an abuse of public opinion. There is no such “will of the people,” the population is divided. The referendum was not about the terms of Brexit. The government has hijacked the referendum for a design of its own making. It is setting itself up to impose an ideological Brexit on the country.

It will be able to do that. But it will be the kind of mistake that is typical of its vision of strong leadership. The country will remain divided. We will get a costly Brexit. Britain will cause further damage to European friends.

Parliament had to decide the snap election with two thirds majority. It should have said “no” to an unnecessary election and told the government to get on with its business. Instead, the House of Commons voted to make itself irrelevant, like turkeys voting for Christmas.

It happens while this is going on that I am reading Machiavelli. A constant in his writing is about the risk to rulers that they make mistakes and cause detriment to both the people and themselves. That risk is particularly high when rulers have unrestrained power. But another constant is this: there is a price to be paid for the abuse of power. The strong leader may get his way today, but history will take revenge and deny him a good reputation. Mrs. May might look over her shoulder to the reputations of her predecessors who also wanted strong leadership: Mr. Cameron, Mr. Brown, Mr. Blair.

 

DEMOCRACY WITHOUT OPPOSITION – WHAT IS TO BE DONE?

British parliamentary democracy now runs without opposition. The centre-left, the main population constituency, is without representation. This is the time to bite the bullet and form a new political party. An opposition could be in place in time for the next election.

The Brexit upheaval has shifted the political landscape. The Conservative Party is in power with no threat to its dominance. The Labour Party is disintegrating and no longer has the force of a possible alternative government. The Scottish nationalists are trouble, but do not represent an opposition. An electoral democracy does not function without a credible opposition.

There are two possible routes to the reconstitution of an opposition. One is to form a coalition of opposing parties that could speak with collective strength in Parliament and collaborate at the next election to maximise the number of joint MPs. That would have to be between the Labour Party and the Liberal Democrats, possibly joined by the Greens. Plans are circulating in Westminster for some kind of coalition but are not finding takers in the relevant parties and their leaderships.

The other possibility is more radical and based on a more radical analysis of the Labour Party’s predicament. It is assumed that the Labour Party is not in a temporary difficulty because of bad leadership but in irreparable decline because its time in history is up. It served the country magnificently with the great reforms after the Second World War, but has since run out of both mission and base in the transition to global capitalism and the withering of the working class. To the question of what the Labour Party is now for, no one has an answer, least of all the Party’s own leadership. This came on dramatic display in the referendum campaign, to which Labour had hardly any contribution to make. In this analysis, the Labour Party will never again represent a credible alternative government.

Since an opposition is needed, it must be recreated. The time is right for the formation of a new party of the centre-left. This should bypass both Labour and the LibDems, both spent forces without ability to renewal, and start from scratch.

A new party should have a platform of three pillars. First, social justice. The Brexit vote (as with the Trump vote in America and populism in Europe) came out of justified anger against the destructions to the social fabric from the extremes of inequality and neglect resulting from globalisation, automation and economic crisis. As we after WWII found ways of sharing the fruits of industrial capitalism, we must now find the recipe for fairness under post-industrial capitalism.

Second, environmental protection and responsible husbandry. The preservation of the earth – its resources, species and natural environment – must be pulled into the centre ground of national and international public policy.

Third, constitutional reform. The Brexit process, from the announcement of the referendum, through its campaign and execution to now its follow up, and other events such as the Chilcot Report on Britain’s participation in the Iraq war, have revealed that we do not have a safe system of political decision-making.

There are various groupings and initiatives that could form the nucleus of a new centre-left party. One is the Green Party, which has already had the success of achieving Parliamentary representation in spite of a hostile system of elections. It is a small force but on the right side of history.

A second relevant initiative, again on the right side of history, is the Women’s Equality Party. This, again, is presently not a strong force, but is an avant guarde in innovative thinking about social justice under new circumstances. Their take is obviously a feminist perspective, which must be central in a new politics of justice, but firmly grounded in a reflection of social justice more generally.

A third relevant initiative is the Constitution Reform Group, an initiative of concerned citizens with broad societal and political experience, constituted as an ideas factory for constitutional improvements. The group has published, most centrally, a draft Act of Union Bill with a new settlement for the regions of the United Kingdom, broadly federal in nature, with consistent devolution from London to all of the regions and hence a new system of governance with shared authorities between Parliament in London and the regions.

There are many other groups and initiatives, not least at the neglected local level, that could join in the deliberation on how to meet the challenge of opposition in a new political landscape, if only an initiative of catalyst could start the process. Let this be a challenge to the groupings mentioned to make themselves that catalyst. It is much to ask. All of them are no doubt happy with their current circumstances and all of them would fear the ugly necessity of compromising their purity if they were to join up with others in collaborative action. But political Britain needs opposition and is not getting it from present political constellations.

ELECTIVE DICTATORSHIPS

In America and Britain, the world’s core democracies, the legislatures, Congress and Parliament, are the weak link in the system of governance and in danger of marginalising themselves towards irrelevance.

We the people elect lawmakers to make important decisions on our behalf. An executive is constituted to collaborate with the legislature in the preparation of policies and to put into effect the lawmakers’ decisions. Among several reasons for this double structure of governance is that it increases the likelihood that decisions are well prepared and that governance will be effective. That’s part of the case for democracy.

Dictatorships do not have a similar double structure. There the making of law and the implementation of law is in the same hands. That increases the risk not only of despotic policies, but also of badly prepared decisions slipping through because there is not enough scrutiny in the process.

A problem with the democratic double structure is that there tends to be a tug of war between the legislature and the executive about who should do what. The executive invariably wants to dominate. If that is allowed to happen, the benefit of double structure scrutiny may go lost and democracy pervert towards de facto dictatorship. It falls on the legislature to stand up to the executive’s inclination to dictate.

In Britain, the tug of war has become visible in the preparation for Brexit. The government initially insisted that it should be in charge (by “royal prerogative”) with little or no involvement of Parliament until the government had negotiated a new deal with the European Union. However, that attempt by the government to claim for itself powers that belong to Parliament, failed when the Supreme Court ruled that the government did not have the authority to trigger Brexit without a formal decision by Parliament.

However, the remarkable thing in this process was that Parliament itself was unable to stand up to the government’s assault. We had the undignified spectacle of individual MPs appearing on the evening news and demanding that the government involved Parliament, while Parliament itself had no voice in the matter. Only when a private citizen brought the matter before the courts, could they lay down the government’s duty to collaborate with Parliament.

The government responded with issuing a Brexit Bill, as it then had to, but continued the battle for dominance. The Bill is only 130 words long, with no detail, and Parliament was given only five days to deal with it. Again, the spectacle of individual MPs popping up to complain and demanding that the government gives them more time. But Parliament itself has no voice in deciding on its own procedure.

In America, Donald Trump was inaugurated into the presidency and set about issuing a flurry of “executive orders” with wide reaching consequences. In so doing, he was claiming for himself the authority (the American version of “prerogative”) to make new law without involving Congress. This turned into a case study in the risks inherent in decision making without scrutiny. One sweeping order suspended entry into the country of all refugees for 120 days, of Syrian refugees indefinitely, and of all citizens of seven predominantly Muslim countries for 90 days. This was a manifestly bad decision, with unforeseen consequences galore and bringing global condemnation down upon America, a result of the decision having been badly prepared or not prepared at all. It was also a despotic decision, setting aside established American law in the matters concerned.

The order on refugees was brought before the courts by civic groups and immediately set aside as unlawful, at least in part. The remarkable thing, however, as with Parliament in Britain, was that Congress itself had nothing to say about the executive’s usurpation of legislative power. Some members of Congress grumbled but Congress itself said nothing.

At the time of writing, the outcome of these tugs of war is unknown. Meanwhile, the respective governments come under criticism for being power hungry and ruling autocratically. That criticism is valid, but superficial. The executive will, if it can, grab power. It is for the legislature to prevent it. In both America and Britain, the weak link in the system of governance is a legislature, Congress and Parliament respectively, that does not assert itself and fails to do its constitutional job. It is when the legislature fails that democracy can pervert towards elective dictatorship.