Looking for a New England: Brexit and Beyond by Seán Patrick Donlan
4 July 2016 – The M0derate Voice
A number of different experts – if experts are to be trusted – have suggested that the recent Brexit result was consultative, rather than binding. Given the British constitutional tradition, they argue that Parliament is sovereign and must confirm the result for it to become law. This is likely true. But it begs a number of questions and suggests intriguing political and practical possibilities.
Put aside the attractiveness of a reasonably clear, codified constitution and the maddening vagueness of the British tradition, a mix of many texts (legislation, jurisprudence, etc) and contested conventions.
Put aside the political cowardice and constitutional miscalculation of the vote. Cameron risked, and the victorious Little Englanders failed to prepare for, the break-up of a great state.
Put aside Scotland’s options, either to veto the vote or leave – Scexit? – the United Kingdom. Look away from potential troubles that might arise in Northern Ireland if, as Irish republicans demand, a new Irish Union is proposed.
Put aside both the concern about Europe’s ‘democratic deficit’ and the impatience of other Europeans committed to the Union. The former is real, if exaggerated and misunderstood; the latter is understandable given Britain’s perennial indecision about its commitment.
Put aside neat theories of democracy. Modern states are not, strictly speaking, democratic, but representative and constitutional. The ‘tyranny of the majority’ and the limits of direct democracy are well-known.
Put aside any analysis of the referendum requirements. Without demanding a majority of voters overall or a supermajority of those voting, a little over a third of voters could push the United Kingdom out of the European Union.
Put aside, for now, consideration about whether the result tells us anything about real – perhaps global – social dislocation, the economic and political limitations of neo-liberalism, or culture trumping class.
Put aside the question of what precise balance of principle or reason, however misguided, and prejudice and racism, however nuanced, led to the result. Xenophobia knows no borders.
Put aside – but not for long – questions about immigration and assimilation, of the innocuous and reasonable protection of a culture or community and the ignorant and irrational hatred of others.
Setting all of these issues aside, it’s difficult to see how the current impasse will play out politically. The blowback over the Brexit result has been severe and shaken enough of the Leave camp to undermine the apparent mandate of the referendum. But much depends on the current leadership contests within the Conservative and Labour parties. In resigning as Prime Minister – a move that is cowardly, cunning, or both – David Cameron has bought the country additional time to consider their options.
But how likely is it, as a practical-political matter, that the current British Government would actually bring the question to a vote? That is, what is the chance of asking Parliament whether or not they approve of triggering Article 50 to leave the European Union? And if, as a political matter, a consensus coalesces affirming the traditional view that Parliament is supreme and can effectively legislate in any manner it wishes, aren’t there likely to be more than two options? Obviously, finding a middle way will require political courage and creativity. Both are presently in short supply.
If the Tories move quickly to sort out their leadership contest, they might still weather this storm. In fact, they could shed with one blow the burden of Cameron, as well as Brexiters Michael Gove and Boris Johnson. With a parliamentary vote, allowing its membership to decide according to conscience rather than party, they’d certainly expose their well-known internal divisions. But if they can channel their Machiavellian impulses beyond their own inter-party rivalries, they could potentially make things much worse for Jeremy Corbyn and Labour, who are in the midst of their own leadership struggles.
Indeed, if Parliament rejected the referendum result, largely through Labour votes, the Conservatives could blame their most significant rivals for voting against the wishes of the people, all the while keeping Britain within the European Union and Scotland in the United Kingdom. At least for a time.
The Tories might even call a general election, claiming to put the matter back in the hands of the electorate in a suitably British manner. Of course, an election could be another gamble for the Conservatives. Their internal divisions on European Union membership won’t simply vanish as Cameron, Gove, and Johnson exit. But there are also worse things than losing or playing the long game.
And while the Conservatives risk losing power, their opponents are weak, too. Labour under Corbyn is in disarray. The manner of his selection, their lackluster Remain campaign, and recent resignation of much of the Shadow Cabinet don’t bode well for a return to Downing Street.
The Liberal Democrats embarrassed themselves less than others in the referendum. It would, however, take a significant swing in their support to recover from the last election. Assuming they find themselves again in a position to enter Government in coalition, their last experience under the Tories would present them with a difficult decision.
There’s the more worrying possibility of further emboldening UKIP, the only party to formally support Brexit. But both their bench and program are thin. In completion with the two larger parties, Nigel Farage and his followers are likely to continue to struggle to find enough voters willing to put them into power.
Indeed, the British electoral system – the ‘First past the Post’ model – means that a general election is likely to be inconclusive. Candidates for Parliament are successful when they win a plurality of the votes in single member districts or constituencies. The result is that there’s often a significant gap between party support and seats won in Parliament. Parties typically have a majority of the latter with only a plurality of the former.
This approach to politics has provided Britain with greater political stability than other parliamentary systems, but at the price of being less representative. And that’s a real problem with an election in the aftermath of the Brexit referendum. A general election is unlikely to deliver a clearer mandate than that vote. Turnout could be lower. And party manifestos won’t be limited to the European question; the meaning of even a significant victory will be unclear.
All of this is wonderfully complex and intellectually challenging, but it’s also sad, unsettling, and scary. It’s sad for Europeans as a whole. For all its faults, the European Union has been a great success in ensuring peace and cooperation. It’s unsettling for Britons, especially their youth, too few of whom voted to secure their place at the center of European developments. And it’s scary for those in Britain, both natives and newcomers, now accosted by racists no longer afraid to parade their prejudices in public.
These concerns are not abstract, but pressing. They cannot be put aside.
A native of Louisiana and longtime resident of Ireland, Seán Patrick Donlan is a Law Professor and Deputy Head of the University of the South Pacific School of Law.