After Brexit Britain needs to sort out its referendum rules

Any convinced Brexiteer should be grateful to David Cameron for allowing us to vote to leave the EU. Anyone who believes in the supremacy of Parliament will rejoice that we now have the chance once again to exercise the sovereignty muscle that had atrophied. Thanks to the instincts of the poorer sections of society,we have been given the opportunity to save ourselves from the rule of an unrepresentative bureaucracy. The people of England and Wales have triumphed over Hampstead and Orwell’s England-hating intelligentsia. Times will be difficult for a bit,but powerful representative institutions and long-term economic success tend to march hand in hand. We will survive and prosper.

I believe all that.

And yet, and yet…is there not a paradox here?

We Brexiteers believe in the supremacy of Parliament. Indeed,for some of us that was our main reason for wanting to leave. However, both Houses of Parliament would at present, if free to do so, vote to remain and by a substantial majority. If they did, should we who agree with Burke in his classic address to his Bristol constituents not concede their right to do so? MPs are representatives,not delegates. They therefore owe it to their constituents to vote in Parliament according to their judgement and not merely as they are bidden.

I believe that, too.

So, should we Brexiteers therefore hold our noses and declare that the principle of the supremacy of Parliament should trump the victory that David Cameron has handed us? Should we even try and resolve the dilemma by finding a way round the fixed term Parliaments Act and hope Mrs. May holds a general election? Or should we grab the opportunity Cameron’s tactical error has opened for us?

There are Euro-enthusiasts who are planning to defy the clear, if narrow,referendum result and Parliament will be their main battleground. Like the Jacobites after Culloden, they will die fighting for a lost cause; a cause as dated as the romantics who hoped the Young Pretender would rouse himself from his drunken stupor to overthrow an increasingly powerful British regime. They will nevertheless be troublesome and, the more troublesome they are,the more the Brexit majority will be confirmed in their view that they are ruled by a self-serving elite over whom they have no control. Parliament and Whitehall’s standing would fall even further.

Luckily, however, there seems to be a pragmatic majority. The constitutional position may well be that the referendum was purely advisory, but the vote was clear. To ignore it would be courageous to the point of foolhardiness. The government’s job is now to arrange for our exit. The terms will be for the government to negotiate and for Parliament to approve.

Yet questions will remain. Will Parliamentary approval be enough? Should the electorate be given a chance either in another referendum or at a general election to put their chop on the deal after Parliament has scrutinised the government’s proposals? And so on.

Such questions highlight a dilemma that is assuming increasing urgency and goes beyond the European question.

Referendums have slithered into our constitutional practice. Like Mr. Cameron’s euro-referendum, Harold Wilson’s was born of the imperatives of party management. Some therefore are expedients convenient at the time for the Prime Minister of the day. Others are the result of an emerging consensus that constitutional change should not proceed without the approval of the people the change will most directly affect. The devolution proposals for Scotland,Northern Ireland and Wales and proposals for directly elected mayors in England are examples of the latter.

Each referendum, too, is different. For instance, some ask the voters post-legislatively,others pre-legislatively. There are, however, no general rules setting out the circumstances in which referendums should be called and conducted, or how those rules should protect Parliament’s duty to scrutinise and improve legislation. Most importantly, it is not clear how we are to protect Parliament’s ability to exercise the judgement that Burke recognised was the essence of our representative system. As we have seen after the 23rd of June, the vote in a pre-legislative referendum acts as a cosh which lays out Parliament cold as effectively as any street mugger. Parliament dare not challenge the will of the people,expressed inevitably in answer to a crude binary question. It prevents Parliament from giving the nuanced judgements which only the Parliamentary process can reconcile with popular authority.

Paradox or no paradox, we should welcome the fact that Cameron’s tactical error has handed us Brexiteers a great strategic victory. If Parliament has been coshed as a result, we should console ourselves with the perhaps Jesuitical thought that it took such a cosh to give us a chance to restore Parliament’s supremacy in practice if not, pace Lord Bingham, in theory.

Nevertheless,even post Brexit,the referendum dilemma remains. The referendum genie is out of the bottle and there will be more referendums in our national life. Amid all the calls on government and parliamentary time, Whitehall and Westminster would therefore be wise to codify the constitutional processes surrounding the calling and conduct of referendums.

Essentially, there are perhaps two principal considerations.

The first is that all referendums should be post-legislative. This would allow Parliament and government to do their carefully nuanced jobs without being coshed by the electorate as they are by pre-legislative polls. Post-legislative referendums also resolve the vexed issue of the question: the question just becomes “do you wish this legislation to become law?”

The second is that there should be a mechanism to trigger the calling of a referendum. There is a strong case that that trigger should reside in Westminster rather than in Downing St. The trouble about such a trigger residing in the House of Commons is that effectively it would still reside in Downing St.,given most governments’ command of the Lower House.

One solution would be for the Upper House,particularly a reformed Upper House,to be given a new power: the power to call a referendum, if in its judgement a piece of draft legislation was irreversible and of sufficient importance. Such a bill could only come into force if approved in a post-legislative referendum. A bill providing for us to join the Euro would, for instance, satisfy both criteria.

Today’s electorate expects to participate in political subjects that attract its interest. It is not easy to change Parliamentary proceedings to give effect to that expectation. There are plenty of ways of doing so when considering more every day questions: more select committee procedures for Bills, for instance. However,such a new power for the Upper House would be a way of squaring the circle for big questions and allowing Westminster to do its deliberative job, while giving the electorate the final say.

People with an interest in constitutional matters have long pondered the questions arising from referendums and their infiltration of our politics. One specialist in particular has been giving his mind to them of late: Professor Robert Hazell of UCL. The government could do a lot worse than ask him to conduct an enquiry as to a sensible way forward. A satisfactory solution would add greatly to the authority of Parliament and perhaps even increase the standing of both Houses in the country.