A Modest Proposal for a Referendum Act
by Monty Skew
The democratic system is broken. Parliament was prorogued and that has now been deemed unlawful after legal arguments to reverse it were accepted in a process which will create yet more conflict. Parties are bitterly divided; Parliament is paralysed. And government may be acting outside the law. The country is falling apart even as the new PM sees his one-seat majority disappear and prepares for a snap general election. There are more resignations pending in both main parties which themselves no longer speak for the mass of voters.
Whatever deal is negotiated, if it is, it must be confirmed by the people and there is the possibility of yet another deadlocked general election. This might take place before October 31 but is unlikely to be conclusive.
Meanwhile, there are rumours of plots and sub-plots to stop the Parliamentary process. There have been demands for various innovations, such as a citizens assembly and sortition, supposedly ‘used by the ancient Athenians to decide major issues’.
Referendums are not really part of the British tradition but of the three major ones the Brexit referendum is being contested by the losers. But now that the EU referendum has exposed the problems of Parliamentary democracy perhaps a new settlement is needed.
Regardless of how the Brexit saga plays out there is now a need to decide on how a referendum is set up and implemented in future. This is not a proposal for October 31st alone but for the long-term stabilisation of the political order.
A so-called confirmatory referendum may be granted on the terms of the withdrawal agreement. But this referendum should be accompanied by a Constitutional Referendum Act so that in future other decisions can also taken by referendum in a non-divisive way. A new confirmatory referendum must only be granted on condition that future referendums are not called into question. The new Act could also clarify the precise parameters of this political method. A Referendum Implementation Board will be needed.
There have been calls for another referendum from those Remainers who believe, however misguidedly, that the people were fooled. They hope and pray that a new referendum will deliver a different result. This is unlikely but what would happen if it delivered a result with a whisker thin result, say 51-49? It is also a high risk strategy. For if voters vote Leave again it would poison the political process even further. It could lead to social unrest unless it were implemented immediately.
And an inconclusive general election may not resolve this matter either. For one thing, there may be no overall winner and no government for some time while a coalition is negotiated. This could also be used to nullify the will of the people. Parliament gave up its absolute sovereignty by conceding a referendum but is now seeking to frustrate the result. The proposed ‘government of national unity’ is essentially a means of stopping Brexit permanently, a junta seeking to cancel the result of an election.
However, it may be expedient to allow a referendum on Brexit whether or not it is called confirmatory. It could be an opportunity to embed the referendum as a permanent principle in the body politic.
The different factions feverishly putting party before country, in the guise of doing the opposite, are hoping to return to business as usual. But a conditional referendum would put them in a quandary as a new Constitutional Referendum Act would deprive them of their current powers and restore sovereignty to the people.
For a Constitutional Referendum Act would require Parliament to implement and legislate for the result of a referendum. The way forward is to seek a formula which restores a role for Parliament as well as respecting the sovereignty of the people which is implicit in a referendum. The people have spoken but the two are now in tension.
So here is a modest proposal:
To pave the way for a confirmatory referendum, Parliament is to pass a Constitutional Referendum Act before any such test of public opinion. This will make decisions binding on the government and Parliament in future. A separate Referendum Implementation Board would ensure that the required legislation was passed.
In the exceptional circumstances of Brexit, the confirmatory referendum must itself be preceded by another referendum on whether it should be held at all. But only for Brexit and not in future. So before granting another referendum on Brexit what is needed is a referendum on whether to have another referendum and to make it binding. And what is also needed is a constitutional referendum to determine the status of referendums in future and whether a minimum turnout is needed, say 52- 48.
The proposal is that all major issues would be decided by referenda, provided one million registered voters demand one. But for major treaty changes like joining or leaving a community of nations, then ten million signatures would be required.
All major social and political issues would henceforth be decided by referendum without exception. This would re-establish the democratic principle which all would respect. If a majority of the voting public decide on an issue it becomes legitimate and beyond dispute.
The Act would also specify that the Referendum Act would itself be subject to a binding referendum with a minimum turnout of say 40%. The Act would stipulate that in future all major issues would be decided by referendum. The decision would be final. Once a referendum decision has been made, Parliament cannot obstruct it by legislation even if all political parties are opposed to the result.
It will be like the German constitution – unchangeable and this must be specifically legislated for. This proposal would break the current logjam. Full citizens will be called upon to vote more frequently on several important social and political issues. But they will see their decisions implemented and enacted. This will neutralise the power of lobby groups, corporate actors, hidden advocates and noisy and unrepresentative pressure groups.
Once a question has been settled it cannot be reopened for at least ten years. Labour used to have a similar rule, that constitutional amendments could not be reopened by winner or loser for three years.
All political parties will be represented on a Referendum Commission in proportion to the votes cast at general elections and referenda. The Constitutional Referendum Act would also ensure that no decision can be taken by a citizens assembly or by sortition. Once this Referendum Act is passed then the Remainers can gather ten million votes and have their referendum. But of course there would be no guarantee that a new referendum would give them their desired outcome.
This process is called democracy and its restoration will hopefully bring peace and prosperity to this sceptre’d isle on the bicentenary of Peterloo. It will unite Parliament and the People as one body, putting country before party
I commend this proposal to the long suffering voters of Britain. It is a proposal which will heal the wounds of a bitterly divided nation. Let the question now be put.