The problem with the British constitution is sovereignty. We let those words “the sovereignty of parliament” trip off our tongues all too easily. We were taught in our constitutional law classes that, in Britain, the Sovereign rules through Parliament; that we are all subject to the rule of law exercised by a sovereign parliament which includes the courts, however independent they may seem. Above all, sovereign power is without limit, and that means no Parliament could be bound by its predecessors. So we can have no entrenched laws and there are no fundamental rights granted above Parliament. In short, we are the subjects of an absolute Parliament. Sadly, that is the cause of our confusion in this modern era.
Great Britain has no place for referenda as long as we adhere to these principals. Parliament would have to cede its sovereignty to allow for legal determination by a defined electorate in each case and, it seems to have done this on a case by case basis for devolution and membership of the European Union.
As long as we adhere to this principal there can be no compulsion to accept decisions of a public vote unless by consent of Parliament. That means that a vote, which is a single event, only has a continuing life by the will of Parliament, which is a continuing legal reality. In short, no referendum can be a lasting determinant of policy since it has no continuing existence. There is no such thing as ‘a continuing will of the people’. The sovereign can change its collective mind!
No modern country which calls itself a democracy contemplates such a system as we enjoy in this country. In a structured democracy the people are sovereign, and the institutions which govern them are their servants. Whatever form that democracy takes it invariably has deeply entrenched rules and structures which divide power specifically, and which protect its citizens from the excessive use of that power. Such separations can be between executive, legislative and judiciary, as in America, or between the various layers of national and local government, as in Germany. Above all, there is a fair and comprehensive system of consent exercised through an acceptable electoral system. In short they are citizens of a compliant polity.
But matters have got worse in present day Britain.. The Parliament has been reduced to the role of an electoral college in permanent session. Each week the government requires that its ‘supporters’ dutifully re-elect it, no matter what their individual views might be on a particular issue. All power has now passed to a deeply unrepresentative executive which exercises greater power than in any other country calling itself a democracy, and controls the entire legislative process.
Members of Parliament, who have been elected to represent whole communities, are reduced to waiting their turn to become members of a government in charge of executive functions, for which they seldom have any qualifications. Thus, the executive is a bunch of amateurs. While waiting their turn they will be forced to back all measures of the executive for fear that they will loose their place in the queue for office.
This executive is composed of men and women selected by tiny idiosyncratic clubs called local parties, who have then generally gained about 30% of the votes in a constituency. But that constituency is usually not a natural community, but rather an artificial grouping together of disparate communities put together by the Boundary Commissioners. The only thing they can do when elected is to go to Westminster and wait to be invited to take part in the government.
In the meantime they are expected to obey the little cabal of local party members and do their bidding, as if they were merely delegates rather than proper representatives. The only skill required to join the queue for office is the ability to get elected. That puts a premium on being neat and tidy and blameless in word and deed. The result is perpetual minority government against which there is no appeal. The list of measures passed by recent Conservative governments, for which there was neither a mandate nor majority support, needs no repetition. Our feeble attempt at coalition government has not improved matters.
Perhaps the most astonishing fact about all this is that a deeply undemocratic constitution should require the largest parliament in the world. The House of Commons, and the active members of the House of Lords number over twelve hundred, and they all get paid.
This system is supported by its participants for obvious reasons. They have so much to gain from it. How nice and comfortable to be able to carry out all kinds of policies without the inconvenience of having to gain consent, nor of having the results scrutinised. We like to think that governments of the left exercise that power to the general good, or we did until Harold Wilson used it to the benefit of the Trade Union barons and their supporters. The now almost blatant use of that power by the present government for the benefit of its members and their supporters is too obvious.
Furthermore, when such a government has a slim majority and must go on being re-elected week after week, it gives enormous influence and more than a little power to small groups with strange views. Such governments curiously tend to behave more extremely than the ones with complete freedom.
All the above has been called into question over the last year. The issue which has exposed the whole farrago is Brexit. First, a sitting Prime Minister is defeated on enabling legislation to take Britain out of the European Union. Under the usual custom and practice there would then be a vote of no confidence, resignation, and general election would follow. That did not happen, astonishingly the confidence motion failed! The Enabling Bill was taken back to the House and defeated in fact and in practice, repeatedly. Neither all those who did not favour withdrawal nor those who wanted to ‘crash out’ voted for the procedure. The Prime Minister kept pathetically crying for the ‘will of the people’ to be respected. But as explained above, no such thing exists. Our conventional unwritten constitution, which does not recognise such a will, has effectively collapsed.
That Prime Minister is going now, but ‘the people’ are not going to elect a replacement. The Conservative party will decide through a process of which the rest of us have neither part nor understanding. Thus is our polity brought to irreconcilable standstill. What is exposed is that there is no constitutional method of resolution.
The whole matter of membership of the European Union must be set aside while we consider at last a reform to our constitution to one that contains for ever the right of all to be citizens and not subjects, and a clear division of power and function placing all citizens on an equal footing. Great Britain has to stop pretending to be a democracy and actually become one.
Such a constitution must abandon the centuries old election of individuals to the Commons in a world of political parties, and change an appointed Upper House into one elected on a different franchise. The watchwords must be that all votes must have comparable weight and all membership of Parliament shall be by election.
It is no surprise that certain members of our parliament wished to get away from the European Union. The Union is composed of Countries with complex written constitutions which deploy power across a number of institutions. It is no problem for them to accept that, for the general good, some of those powers should be passed up to a European authority. But some of our politicians cannot face even the smallest loss of power, even if it is in the country’s interest and even if it is in their own. When they talk of loss of sovereignty they mean their own, not ours, for we have none.
The core argument for our system, usually deployed by the Conservatives, is that it delivers strong government. We must ask ourselves whether that is in itself a virtue. Most democracies now have relatively weak governments. They depend on consensus and compromise, at which we are particularly bad. There are not two sides to every question. There may be one, or any number of solutions. Why do we have a paid opposition with subsidised discontent? Why do we insist on national solutions which are so often wrong? Why is local responsibility ignored?
It is time that some of the huge centralised expenditures are properly scrutinised and examined. Radical policies applied to small and local issues achieve good results, when applied to large-scale issues they are invariably wrong. The ridiculous expenditure on national defence would not survive proper democratic scrutiny. Nor would institutional meanness to the poor and disabled be tolerated.
It is also argued that our system is successful. It certainly is at delivering absolute power to a ruling group and then bestowing huge rewards.. But the sad thing is, these days that group has tended to be generally mediocre and talentless.. Very few people of real substance go into politics and, of those that do, not many survive. The record of governments over the last fifty years has not been very edifying. None has really addressed any of the basic issues of post imperial Britain.
A system of absolute power delivered by a ‘winner takes all’ electoral system is supposed to bring stability. Wrong again! It encourages swings in policy which are expensive and wasteful. The Conservatives have spent the last thirty nine years ‘privatising’ everything they could lay their hands on. Anyone who believes that an incoming Labour government will not reverse this has not been paying attention. This is not an issue of efficiency, though the jury is still out on that, nor is it one of public finance, the operation of public services and utilities by private cartels and monopolies for private gain is just wrong. One can only hope that eventually we shall have a proper representative government that will rule for the benefit of all and not just Conservative voters. Let us hope there will be extensive re-nationalisation over the coming years.
The devolution argument is also frequently conducted in terms of efficiency. A Scottish assembly will be wasteful, say the Conservatives. Decentralising local government taxing and expenditure would offend the deeply conservative Treasury. Decision making by Whitehall is so much more cost effective. We must remember that Nazi Germany was also very efficient. The real reason why the Conservatives hate any form of devolution is that it really threatens the power of Westminster, or rather Downing Street. It is clear that devolution on a national and local basis would require entrenchment and written rules, both anathema, and worst of all, a loss of power for Whitehall.
When Ken Livingstone began to exert real power and influence he was squashed, and the Greater London Council with him. No matter that the government of the day had no mandate, the policy had no general support and such a constitutional change should not have been undertaken by the simple exercise of a party majority. The people of London were disenfranchised. The result has been bad for London and its people who really need their own local government restored, but that is not the main reason to do it. It must be done because it is right. Just having a Mayor is not enough.
And that is the heart of the argument for constitutional reform. It is wrong to be subject to an absolute sovereign. It is wrong to bestow all power on one institution, cabinet government, which is not even directly elected. It is wrong not to have a fair electoral system which delivers majority government no matter how slow and consensual such a government may be. It is wrong not to have a properly representative Parliament. It is wrong not to have an independent judiciary separate from the administration of justice. It is wrong not to devolve power to national regional and local bodies. And for the future it is stupid not to abrogate powers to a supra national Union of which we are full members.
We the people are sovereign and we must be given a constitution and institutions through which we can exercise that sovereignty at every level of our corporate and personal lives.
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