Our constitution should enable us to make controversial decisions that we don’t all agree on but are generally regarded as legitimate. For example, I passionately hate the Welfare Reform Act that brought in huge benefit cuts and the disastrous Universal Credit, but I accept that legislation’s legitimacy and that the Government had the right to implement it.
We have come to the point in the Brexit debate that, no matter what the outcome, a large number of people will believe they have been cheated and that the outcome is illegitimate. That is a profoundly dangerous situation to be in – especially when the decision in question has such enormous long-term and irrevocable implications.
The horror is that both sides of this debate will have a legitimate case to say they have been treated extraordinarily unfairly.
How did we get here?
A key problem is that we had a referendum vote, but we have never realistically resolved what the power of that vote should be. Perhaps more importantly, what power does that vote, and those who campaigned for it, have in deciding how to interpret a 16-word referendum question and convert it into the multitude of laws and treaties that are needed to create the largest UK constitutional change for a century?
There are two extreme answers to the question.
The first view is legally correct but does not reflect reality. The Referendum merely provided advice to Parliament, which takes decisions and is accountable to the electorate for its decisions. Individual MPs and Parliament as a whole can change its mind at any time for any reason, even if that means completely ignoring the result of the referendum.
The second view asserts that the Referendum result was and remains “the will of the people”, which has a higher authority than Parliament (and perhaps even the law and the courts). Flowing from this is the idea that the Brexit Referendum result must be interpreted and implemented by people who campaigned for Brexit. Anything less would be to ignore the referendum an the 17.4 million who voted leave.
A sharpening divide
The divide has sharpened because, under the Theresa May’s administration, there was a nod to both positions (although people have strongly divided opinions as to which she gave most weight). However, under Boris Johnson the Government has come down firmly in favour of the second view. “The will of the people” is to implement the Referendum and only a Government led by a Brexit campaigner should interpret what it means.
The conflict between Parliament and the Government has involved shutting down Parliament against its will, changing the rules of the Parliament to remove the Government’s normal right to set the agenda and many other constitutionally dubious manoeuvres which would simply not be acceptable in normal times. Each manoeuvre is decried by the other side as an outrage and even a “coup”.
Our constitution is creaking, and the political process looks to be ridiculous and ineffectual. Each side draws their power from a real and legitimate democratic mandate. Each side believes its extraordinary measures are justified because their democratic mandate must be respected. The space to recognise that both mandates are important, and that result of the referendum requires interpretation by more than just the victors, is rapidly disappearing.
We find ourselves in the position that, should we leave, delay or remain, a large block of the public will not only vigorously disagree, they may also feel that they have been cheated. They will also be able to demonstrate that cheating with some fairly compelling evidence. This is the very situation from which our slowly and painfully constructed constitution is supposed to protect us.
There are many questions that flow from this but perhaps the most pressing demand is “what now”? The current trajectory appears to be that politicians will double down and deploy more ingenuity (or constitutional outrages depending on your point of view) to attempt to impose their side’s will. It may work, but I can think of no better way of amplifying divisions and leaving our nation weakened and full of recrimination.
In praise of Justin Welby
I fear there is no good way out of this situation, but there may be better ways than our current default. The Archbishop of Canterbury has said he is willing to chair a “People’s Assembly” on Brexit in Coventry Cathedral. People’s Assemblies gather about one hundred ordinary people representative of the British public and seeks to find out what they think.
The Assembly does not hold a view on Brexit and it certainly does not picked a side. It seeks to understand and see if there are ways of drawing people together. Like all the best ideas, I wish it had come several years ago , but it is a genuine effort to find a way out that respects people who voted for both sides, and whose ideas and feelings do not easily fit into either of the polarised camps.
It is not a solution – but it could point the way towards one.
 A people’s assembly was held in 2017 overseen by Electoral Reform Society. It recommended what was then a soft Brexit remaining in the Customs Union and keeping close ties with the EU. It didn’t gain the political or public attention it deserved which was focussed on the ongoing political story which was increasingly polarising.