Much commentary has presented the hung parliament that resulted from last week’s general election as a source of damaging instability. In this post Albert Weale argues that democrats should in fact welcome a hung parliament, where a parliamentary majority approves measures on the basis of the merits of the arguments rather than on the basis that they were included in the majority party’s manifesto.
The UK now has a hung parliament. Does that mean that British government is no longer strong and stable but weak and wobbly? To listen to much commentary, you would think so. But for democrats there are good reasons for welcoming a hung parliament.
The prevalent view of parliamentary democracy in Britain runs something like this. General elections are occasions of accountability of governments to the people. Parties stand on their manifestos, and if they secure a majority of seats, their democratic responsibility is to implement what they have promised. Through the Salisbury convention, the House of Lords will not frustrate measures promised in the manifesto. If the people do not like what the governing party has done, they have the opportunity to get rid of that party at the next election.
In this way of thinking, the first-past-the-post electoral system occupies a crucial role. It may not deliver a fair representation of political opinion, at least as judged by the test of proportionality, but it does secure stable government. It magnifies a simple plurality of the popular vote into a majority, often a large majority, of seats in the Commons. With such a majority, a government has no excuse for not implementing the programme for which it has received a mandate. That is simply democracy.
If politics were simply a matter of a contest between left and right, with the two major parties drawn towards the centre ground, this view of democracy might have something to be said for it. In the real world it has nothing to be said for it.
Albert Weale writes that the Article 50 case raised questions about which form of democracy can claim legitimacy – the constitutional democracy established in the UK or the plebiscitary democracy now favoured by many Brexiteers. He discusses these two models and concludes that the only meaningful interpretation of democracy is the constitutional one. In this context the outcome did not represent the judges against the people, as some newspaper headlines suggested, but the judges for the people.
When the UK’s High Court rendered its decision on whether the government could trigger Article 50 of the Lisbon Treaty under the royal prerogative to initiate the UK leaving the European Union, it released a storm of abuse against the judiciary in the press and among cabinet ministers. ‘Enemies of the people’ snorted the Daily Mail; ‘The judges versus the people’ growled the Daily Telegraph. These were the crudest examples. Yet, for all that, they are representative of the Brexiteers’ critique. Had not the people spoken on 23 June and decided the issue by a majority in a referendum? How then, it was urged, could a group of unelected judges interpose themselves between the will of the people and the realisation of that will in policy?
For anyone who bothered to follow the issues in detail and read the judgement, the reality was, of course, quite otherwise. That the claim of the plaintiffs could properly go before the courts was agreed as much on the government side as on the plaintiffs’ side. Indeed, it is easy to see the government welcoming the challenge in order to secure legitimation for its pretension to executive authority by a court judgement in its favour. The case was not about whether Brexit should happen but how it should happen.
There are legal arguments claiming that the High Court was wrong to suppose that triggering Article 50 will alter the rights that citizens enjoy under the law of the land. Those arguments make much of the distinction between the European Communities Act as a conduit or vehicle of rights as distinct from being a source of rights. Those arguments will be for the Supreme Court to decide. But what is certainly prompted by the reactions to the judgement is a broader question of constitutional politics. As well as questions of constitutional law, there are important questions of constitutional and democratic theory. For what is at issue in the controversy was which form of democracy could claim legitimacy – the constitutional democracy established in the UK or the plebiscitary democracy that Brexiteers now favour.
The EU referendum has led to doubts about referendums as an instrument of public policy. Albert Weale suggests that the good conduct of referendums depends on the question being well defined and voters having easy access the relevant evidence. The EU referendum failed both of these tests. Future referendums should be on well defined questions and steps should be taken to provide access, in one convenient place, to the basic data necessary for votes to make a decision.
After the Brexit referendum result, many of those who think of themselves as democrats but who voted Remain are having doubts about referendums as an instrument of public policy. Some are appealing to the purely advisory status of any referendum in the UK constitution. Those who were already sceptical of the use of referendums now have their beliefs confirmed. However, one case no more makes a good argument in political theory than one swallow makes a summer. We should reflect on the Brexit referendum process, but we need to ask how we can define well justified principles governing the use and conduct of referendums in the light of that reflection.
The basic case for holding a referendum is that there are some issues that arise on the political agenda of societies that cannot realistically be handled by the normal processes of contest among political parties. Existential issues that change the standing and status of the country typically fall into this category. Extensions to the power of the European Union or secession are two obvious examples. Even in these cases, however, depending on history and tradition, referendums are not always the answer. In societies governed by strong principles of legal constitutionalism, supreme courts decide such matters, as has been true of the German Constitutional Court over successive European Union treaties. However, in political systems where supreme courts cannot play this role, referendums may be the only device available. What matters in such cases is that they should contribute to resolving the issue, at least for some years, not worsening the problem.