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At the Crossroads—A Commentary by Bruce Ackerman ’67

The following commentary was published in the London Review of Books on September 2, 2010.

At the Crossroads
By Bruce Ackerman ’67

Britain’s constitutional revolution is proceeding at such a pace that it is easy to lose sight of the meaning of it all. The reforms of the past generation – the delegation of quasi-sovereignty to Brussels, devolutions to assemblies in Northern Ireland and Wales and a parliament in Scotland, the passage of the Human Rights Act and the creation of the Supreme Court, the continuing transformation of the House of Lords – have already begun to shake the foundations. All challenge, in different ways, the previously undisputed centrality of the House of Commons in Britain’s governing arrangements. All significantly limit the effective power of the cabinet to exercise plenary control over the country’s political destiny. But the new proposal for electoral reform, championed by Nick Clegg and the Liberal Democrats, marks a turning point. It could well represent the death knell of parliamentary sovereignty.

While the granting of quasi- and semi-sovereign powers to rival power centres might threaten the functional supremacy of the Commons, traditionalists argue that it doesn’t really undermine the foundational principles. After all, the Commons remains free to destroy its new creations by a simple majority vote (after a brief pause in the Lords); or so the statutes, in one way or another, tell us. And if the Commons can repudiate its own institutional experiments, doesn’t the principle of parliamentary sovereignty remain intact?

Maybe not. As the new power centres increasingly assume a life of their own, statutory assertions of ultimate control by Westminster begin to wear thin. This is hardly the first time in British history that evolving practice has gradually undermined purportedly central constitutional principles. During the early 19th century, the prerogatives of the Crown also seemed quite robust; but a hundred years later, they had been eviscerated by the remorseless pressure of countervailing practice.

Not only are the effective powers of the Commons in decline, but a new phenomenon increasingly provides an alternative source of constitutional legitimacy: the referendum. The rise of the referendum has been closely connected to the decline of Parliament’s effective supremacy. A key moment came in the early 1970s, with Edward Heath’s effort to gain approval for Britain’s entry into the EEC through normal parliamentary channels. Labour didn’t only challenge the terms of Heath’s deal: its election manifesto insisted that it was up to the people ‘through the ballot box’ to determine whether Britain should join. After winning the election, Harold Wilson renegotiated Heath’s terms of entry, then put the deal before the electorate in a referendum in 1975. His appeal to popular sovereignty immediately generated a distinctive kind of non-parliamentary politics. While the prime minister campaigned for a yes vote, dissenting members of his cabinet joined the opposition, disrupting traditional notions of cabinet responsibility. Wilson’s decisive two to one victory represented not only a triumph for popular sovereignty, but also a defeat for traditional norms of parliamentary government. This scenario will be repeated in May, when the coalition government puts the proposal to alter the voting system to a referendum: leading Conservatives will be urging people to vote no while remaining bound together with Clegg and his fellow Lib Dems as the coalition pushes the rest of its legislative agenda through Parliament.

The precedent of 1975 has been reinforced by several referendums since. While Northern Ireland is a special case, the popular vote in support of devolution for Scotland and Wales was central in the process of constitutional legitimation. Once again, it is easy to disguise this substitution of popular for parliamentary sovereignty with a traditionalist legal fiction, in this case that Parliament was merely using the referendum as an ‘advisory’ device while maintaining its ultimate authority to make the final decision.

Here is a thought experiment to test this particular bit of conventional wisdom. Suppose that, in a decade or so, the Conservatives win a ten-seat majority in the Commons on a manifesto that commits them, among other things, to an immediate withdrawal from the EU. As its first order of business, the government announces its intention to whip through the necessary exit legislation. General uproar follows. The Europhiles argue that, given the decisive yes vote of 1975, it would be unconstitutional for Parliament to order withdrawal on the basis of a ten-seat victory. They insist that another referendum be held. This view is reinforced by opinion polls, which, despite the recent Tory victory, register a narrow majority in favour of EU membership, as well as a sizeable group of undecideds.

What would happen next? Is it really so clear that parliamentary sovereignty would beat popular sovereignty? Or would the matter be put to a referendum, perhaps through the intervention of the Supreme Court, perhaps through the resistance of the House of Lords (or whatever it is called by that time)? I haven’t the slightest idea – and neither do you. Our collective uncertainty demonstrates my point: the British constitution is at a crossroads.

Parliament should be mindful of this as it moves to turn Clegg’s Alternative Vote initiative into binding legislation. Consider the government’s plan to schedule the poll on 5 May 2011, the day of the elections for the Scottish Parliament and the assemblies in Northern Ireland and Wales. Since there will be only local government elections in England, this piggyback manoeuvre will predictably lead to a lower turnout there. This offends fundamental principles of popular sovereignty, which prohibit electoral systems that systematically distort the voice of the people. The government defends its decision by claiming that these are hard times, and the piggybacking will save £17 million. Perhaps this excuse would suffice if the referendum were truly advisory, and Parliament retained the final say on the fate of the first past the post system. But Clegg would be the first to assert the contrary: if he wins the referendum, he would take his party out of the coalition should Cameron then refuse to back parliamentary legislation carrying the popular decision into effect. Instead of accepting the legitimacy of that decision, Clegg would travel the country denouncing the Conservative betrayal of the British people. Given all this, he has no business pinching pennies at the cost of distorting fundamental principles of popular sovereignty.

This is especially true given that the piggybacking will serve as a precedent for future referendums. Suppose that, five years from now, the next government places a Bill of Rights before electors at a referendum. Citing the Clegg/Cameron precedent, it schedules the poll on the day when regional elections will be held, leading to low turnouts in England. When the votes are counted, the Bill of Rights goes through or down by a few thousand votes, with pollsters showing that the result would have been different had turnout been as high in England as it was elsewhere in the UK. Is this really acceptable?

Fidelity to fundamental principles is important also in that a yes vote in May’s referendum will make recourse to referendums more likely in the future. The proposed AV system will be a boon to the nationalist parties as well as the Lib Dems, Greens and right-wingers championing ideologies that appeal to significant minorities. So long as these parties come in second place in many areas, the reformed voting system will give them a good chance of depriving both Conservatives and Labour of the working majorities that have been the norm over the past two centuries.

In this setting, it is possible to imagine a dynamic whereby frequent referendums are virtually guaranteed. Suppose, for example, that the Greens win 50 seats in the Commons in ten years’ time – just enough to form a coalition government with either Labour or the Conservatives. Naturally enough, the Green leader demands a high price: she insists that the government impose a permanent ban on all development of nuclear power. Neither major party is enthusiastic, but when push comes to shove, the Conservative leader comes up with a convenient compromise: why not call a referendum on the future of nuclear power and get on with the business of governing? With a due show of reluctance, the Greens agree – and presto, the British people are confronted with another big decision. This is essentially the way in which Clegg obtained his AV referendum. Surely, other minor parties will be equally adept at exploiting their strategic positions as multi-party government becomes increasingly common.

It is a serious mistake, then, to view the Clegg initiative as a one-off. If it succeeds, it will mark the displacement of parliamentary sovereignty by popular sovereignty as the foundational principle of the British constitution. This may, or may not, be a good thing – it all depends on how the emerging system is designed. A suitably structured system can reinvigorate the democratic commitments of ordinary citizens, whose confidence in parliamentary government has been battered by recent scandals and will be tested further by government cutbacks. But a poorly designed system could serve as a platform for pandering to the worst instincts of the public, as countless demagogues have shown since Napoleon first demonstrated the abusive potential of referendums in the aftermath of the French Revolution. At present, Britain is drifting down this path.

Consider two basic problems. The first is timing. It’s a bad idea for a government to be allowed to call a referendum whenever it is politically convenient. It’s not just that it may lead coalition governments to call referendums on issues of intense concern to relatively small minorities. More seriously, it permits a government to take advantage of a moment of panic to gain popular consent for measures that destroy precious traditions of freedom and toleration.

This is a perfect moment to raise the issue of timing, since other aspects of the government’s programme for constitutional reform have placed it in the spotlight. Cameron and Clegg rightly challenge the current power of prime ministers to call elections at times of maximal political advantage. They want to make fixed parliamentary terms the norm. But if ‘snap elections’ are an abuse, it would be odd to allow ‘snap referendums’ – especially since an unwise decision by the voters can be repealed, practically speaking, only through another referendum.

There are lots of reasonable solutions to this problem. My favourite is the double referendum: except in extraordinary circumstances, an issue should be put to the voters twice before it is enacted into law – with a four-year pause, say, between the first and second votes. This will deter short-term politicking or momentary panics, making a Bill of Rights a more likely candidate for a referendum than a Repression of Terrorism Act.

The double referendum will also go some way towards responding to a second big problem: voter ignorance. The four-year period will encourage both sides to undertake sustained public education campaigns that can’t help but improve the thoughtfulness of voters’ decisions. There is a risk that media manipulators will overwhelm popular judgment through soundbite campaigns exploiting fear and ignorance, but it need not condemn the entire project. All forms of government have serious weaknesses: parliamentary sovereignty invites elitist condescension and bureaucratic isolation. Still, the dangers of high-tech demagogy are significant, and we should attempt to reduce the risk.

James Fishkin and I have argued that referendums should be preceded by a national holiday in which voters are given an opportunity to discuss the pros and cons of the issue concerned. Our proposal is based on more than 50 social scientific experiments conducted all over the world during the past 15 years. In 1995 and 1997, for example, Fishkin and his collaborators organised ‘deliberative polls’ in Britain to investigate attitudes to EU membership. On both occasions, participants selected to be representative of the country both in attitude and demographics spent a weekend exploring the issue, both in small groups and in structured discussions with leading politicians and experts on both sides. At the beginning, pro-European sentiment was in the low forties, but deliberation changed a lot of minds, and it rose to the high fifties or low sixties by the end of the weekend.

Our proposed ‘deliberation day’ might seem terribly far-fetched, and it would, of course, cost a good deal. But if it makes sense for ordinary citizens, on certain great occasions, to take their political destinies into their own hands, it makes sense to encourage them to cast their votes in an informed fashion.

As regards next year’s referendum, the government’s piggyback proposal should be rejected: £17 million is a small price to pay to avoid a poll which will distort the decision of the British people. Once this blunder is corrected, the referendum should proceed, but with the understanding that a royal commission be convened to consider the constitutional future of the referendum. I have flagged two big issues, but there are many more. For example: should a supermajority be required for approval? Should the result be invalidated if a majority of voters fail to turn out? There is a variety of sensible answers to such questions. But they should at least be asked. After a few more precedent-setting referendums, British governments may well have assumed the power to call referendums whenever convenient, to manipulate electoral systems to favour some groups over others, and to push towards a vote without taking any steps to encourage citizens to deliberate. Even if turnout is very low, a slim majority will carry the day.

Not a happy prospect, but there remains ample time to avoid it. All it takes is the sober recognition that the epochal history of Westminster democracy is coming to an end, and that the moment has come to build a system of popular sovereignty that makes sense for modern Britain.