A triple-option EU referendum is the most logical, though unlikely, solution

David Cameron is due to make his long-awaited speech on the future of the UK’s relationship with the EU later today. This was of course expected to be given last Friday but was cancelled owing to the hostage crisis in Algeria.

There are four main approaches the prime minister could in theory adopt, whose respective advantages and disadvantages I discuss below:

  1. Judging from the numerous pre-speech hints and briefings both last week and this, the option Cameron appears to be going for is to use the fiscal union of the eurozone countries, which will possibly require amendments to the Lisbon Treaty, as an opportunity to renegotiate Britain’s relationship with the EU following a Conservative victory in the 2015 general election. The negotiation will aim to achieve the repatriation of certain powers, and the deal will be put to the electorate in what is being billed as an in / out referendum some time around, say, 2018. In other words, if the new relationship with the EU is rejected by voters, the UK will leave the EU.

Cameron’s intention here is clearly to transform the EU from an issue that could damage him and the Conservatives in the 2015 general election to one that could help him: ‘vote Conservative and you’ll get an in / out referendum’. In particular, he will argue there is no need for disaffected Tories to vote UKIP, as he has responded to their concerns by agreeing to renegotiate some of the key terms of the UK’s EU membership; and if they don’t like what’s on offer after the negotiations, they can vote to leave the EU in the referendum. Equally, Cameron hopes this will put an end to the squabbling in his own party on the issue so that it does not harm the party in 2015.

If, however, it is Labour that forms the next government – whether on its own or in coalition with the Lib Dems – they will almost certainly offer neither negotiations on a new deal nor an in / out referendum. This would let Mr Cameron off the hook, in fact, as he may in reality not be too keen on making significant changes to the UK’s relationship with the EU. If, on the other hand, Cameron does win a majority in 2015, he will then be in position to come up with only a relatively minor readjustment of the UK’s terms of EU membership and would probably succeed in obtaining the electorate’s consent for it in a referendum.

The problem with this strategy, if I’ve read it right, is that it makes Mr Cameron a hostage to fortune while also running the risk that the Europe issue will rumble on unresolved for years to come. For a start, it’s far from obvious that a commitment to renegotiate if the Conservatives are voted in to power in 2015 would neutralise the UKIP threat or satisfy the Tory eurosceptics. Recent polling, for example, suggests that the EU is only the fifth-most important issue for potential UKIP voters, behind the economy, immigration, unemployment and crime. Many Tory backbenchers and activists are also likely to be unhappy with what they would see as merely a vague promise to renegotiate the UK’s position.

And that is always supposing that the EU and its member states would be willing to enter negotiations on a looser relationship with the UK in the first place. This is far from clear. After all, they’ve got a eurozone crisis and fiscal union to be getting on with; and just because the UK doesn’t want to press ahead with ever closer union, that doesn’t mean the rest of Europe should entertain the UK’s demands to re-write Lisbon and loosen its ties with the EU. On top of which, there is in fact no provision within the Treaty of European Union for renegotiating a state’s membership of it. On the contrary, a state has to declare an intention to leave the EU altogether before negotiations can begin on what the new relationship between that state and the EU might be. As Article 50 of the Treaty – as consolidated within the Lisbon Treaty – states:

“A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.”

Indeed, at the time that the Lisbon Treaty was signed by the UK, in 2010, the fact that there is no agreed mechanism for an individual country to renegotiate its terms was given by the Conservative and Liberal Democratic Parties as a reason why they would not be offering a referendum on it at the 2010 election. And this is also why both parties said they would offer a referendum on the EU only when further powers were transferred from the UK to the EU (i.e. not the case with the fiscal union), and duly passed such a provision into UK law. So to argue now that a renegotiation is possible without a prior intention to leave the EU having been expressed by the UK government is at best inconsistent, at worst disingenuous.

In other words, this option is all about politics: Cameron aims to paint himself as the champion of renegotiation, and if the other EU member states are unwilling to enter into negotiations, he can make out that the lack of progress is down to their intransigeance rather than his own unreasonableness. Cameron can always threaten the UK’s EU partners that snubbing the UK on renegotiation will only intensify demands for the UK to quit the EU altogether. But to be honest, our EU partners are more likely to call Cameron’s bluff – supposing he’s still in power at that point, that is. With Prime Minister Miliband in No. 10, there’ll be no bluff to call.

So this whole scenario has huge potential to unravel horribly: if it doesn’t satisfy potential UKIP voters or Tory eurosceptics; if the Tories lose the next election; and if the EU is unwilling to play ball.

2.    So what if, as some have suggested, the UK holds a referendum to obtain a mandate for renegotiation before kicking off the negotiations? This option involves two referendums: one at the beginning of the process and one at the end to ratify the deal.

The most obvious problem with this suggestion is that you might not actually get a mandate via the initial referendum, i.e. the renegotiation option would be rejected by the electorate. In addition, the ‘no’ verdict would be ambiguous, in that ‘no’ voters would be made up of both supporters of the status quo and supporters of the UK’s exit from the EU. In addition, even if the ‘yes’ side did win the mandate referendum, this solution would be subject to the same uncertainties and ambiguities of option 1 discussed above: would it satisfy potential UKIP voters and Tory eurosceptics? Would the EU play along and agree to negotiate? Would an incoming Labour government reduce the scope of any renegotiation? And would the British people endorse any agreement that was reached in a second referendum?

There are too many uncertainties with this option; and whether renegotiation was approved or rejected in a mandate referendum, nothing would be settled for several years to come on the big question of whether the UK should remain a member of the EU or not.

3.    So why not just get this question settled once and for all via an in / out referendum held as soon as possible, preferably ahead of the next general election? This might at least provide the UK government with the real mandate it requires to go to the EU and begin negotiations, as set out in the Treaty of European Union, discussed above.

A straightforward in / out referendum is the preferred option of those opposed to the UK’s EU membership, including UKIP. Many of them are clearly confident the ‘No2EU’ cause would win out in such a referendum, but I’m not so sure. As YouGov’s Peter Kellner pointed out last week, precedent would tend to suggest that the status quo would in fact win, even if the ‘no’ camp were ahead in the polls at the start of the campaign. And if a majority did vote for the UK to remain in the EU, that wouldn’t really settle the matter either, because there would be a sizeable section of the population that still wanted the UK to negotiate a looser relationship with the EU while remaining a member state.

If, on the other hand, the ‘out’ camp did win an in / out referendum, then negotiations for the ‘Brexit’ (British exit) could begin. What would probably happen then, in my view, is that the European Commission and our fellow-EU member states would scurry around in a state of panic, and would offer a series of substantive concessions allowing the UK government to achieve most of its policy objectives while remaining within the EU. This could include withdrawal from the Social Chapter and the repatriation of powers relating to freedom of movement (i.e. the ability to restrict immigration from EU countries), justice and policing, employment law, welfare benefits, and a host of economic, regulatory and environmental legislation.

Even if the eventual deal did involve a Brexit, the form this would take would probably not be very different from a package allowing the UK to remain in the EU but with more independence in the areas I have just referred to. In essence, both would be a form of associate membership or affiliation, allowing the UK to access the Single Market but without entering into the full political project of the EU, which is viewed by many as tending towards establishing a federal European super-state. Whatever deal was reached through negotiation, this would be put to the British people in a referendum.

This is not a bad outcome; but, as I say, it is dependent on the anti-EU side of the argument winning an in / out referendum, which is far from certain. In addition, if Labour did win the 2015 election, an incoming Labour government would almost certainly wish to negotiate a less radical separation from the EU, which would probably involve remaining in the EU and retaining the Social Chapter along with many other elements of the status quo. A Labour government would be honour-bound to offer a second referendum on whatever deal emerged, and it would probably win such a referendum, for the reasons discussed above: when push comes to shove, the British people are more likely to back the status quo, especially if some concessions have been made and a limited number of powers have been repatriated.

So even an in / out referendum now probably wouldn’t settle matters. And there’s another, unspoken, reason why the British government is reluctant to offer the public an in / out referendum now: its possible impact on the Scottish-independence referendum in 2014. First, there’s the obvious point that if the Scottish people were to vote for independence, it would no longer be the UK government that would be negotiating on its terms of EU membership but the governments of two ‘new’ states. The rump-UK state (rUK) would doubtless lay claim to being the continuity-UK and the inheritor of the present UK’s legal personality and international agreements, including membership of the EU. But regardless whether this blithe assumption is founded or not, an impending break-up of the UK would make the need for negotiations on rUK’s and Scotland’s EU status unavoidable, especially as it is generally accepted that the English are more inclined towards looser ties with the continent than the Scots.

This variation in attitudes towards the EU north and south of the Anglo-Scottish border is another reason why an in / out referendum now would be potential dynamite. Imagine a situation in which the Scots – and maybe the Welsh and Northern Irish, too – voted to remain in the EU but the English voted to leave, swinging the overall vote in favour of the Brexit! That would really add fuel to the fire of the Scottish-independence cause, just ahead of the crucial independence referendum. The SNP would be able to tell Scottish voters that if Scotland remained part of the UK, the English would take the UK out of the EU, notwithstanding Scottish opinion in the matter.

By contrast, imagine if the margin of victory for the pro-EU cause in Scotland, Wales and Northern Ireland were large enough to tip the balance in favour of the UK remaining in the EU, against the will of the majority of English-resident voters! That would be a ‘West Lothian referendum’, in which the UK voted to remain an EU member while England voted to quit! Now wouldn’t that wake up the sleeping lion of English nationalism! Clearly, the UK government is just not going to go there, and so an in / out referendum before the Scottish referendum is a non-starter; and there is too little time between the Scottish vote (probably in November 2014) and the next UK general election, in May 2015, to hold an in / out EU referendum.

Of course, another reason why Cameron is unwilling to stick his neck out and offer an in / out referendum now is that he probably wouldn’t win support for it in Parliament. This is because neither Labour nor Cameron’s Lib Dem coalition partners would vote for it. Indeed, sizeable numbers of europhile Tory MPs would also reject the idea. In other words, this could easily lead to the break-up of the coalition and even the end of the present government if Cameron chose to make it an issue of confidence and was still outvoted. So if Cameron offered to hold an in / out referendum now, he could find himself having to go to the country in a general election in 2013 and asking the public to approve an in / out referendum that had been rejected by Parliament. So, rather than jeopardise his premiership now, he will instead offer the same choice at the scheduled election time instead. This means, of course, that the issue will not go away, at least until 2015. But it will probably rumble on for some time afterwards, given how un-straightforward the renegotiation in fact is, as discussed in relation to options 1 and 2 above.

4.    This leaves alternative No. 4: a three-option referendum, to be held as soon as possible. As the name suggests, this would canvass the public’s opinion on all three options: the status quo, renegotiation / looser relationship, or quitting. On the ballot paper, the question could be posed as follows:

With which of these statements do you agree the most:

a)        The United Kingdom should remain a member of the European Union, with the same balance of powers between the United Kingdom and the European Union as exists at present ;

b)        The United Kingdom should remain a member of the European Union, but should negotiate with the European Union to repatriate certain powers that have previously been passed from the United Kingdom to the European Union;

c)        The United Kingdom should leave the European Union altogether.

Clearly, one problem with a multi-option referendum is that you can fail to obtain a majority mandate for any of the options. However, in this instance, this can be overcome very simply by requiring voters to indicate a second preference. In the event that none of the options on the ballot paper wins a majority of first-preference votes, the second-preference totals for all of the options are added to the first preferences. This is different from the Supplementary Vote (SV) system, which is presently used for London mayor elections, and where only the top-two candidates go into the second round of voting, and only second-preference votes for either of these two remaining candidates are added to their first-preference totals.

The pitfall with using SV for the multi-option referendum is that it’s quite possible that option b above (renegotiation) would gain the lowest total of first preferences but the highest total of first and second preferences combined, as supporters of the status quo and the UK’s exit from the EU would mostly pick renegotiation as their second choice. For this reason, using this system, it’s almost inevitable that the consensus choice – renegotiation – would win comfortably in the second round.

It is of course an outside possibility that the status quo or the Brexit would win an outright majority in the first round of voting, in which case the mandate is clear: winning an overall majority when there are three options on the table is a far more convincing victory than when there are only two choices. On the other hand, it is distinctly possible that the option of quitting the EU would win the plurality – the largest number of votes but not a majority – in the first round. This, too, would send a very clear message to the EU and would put the UK in a strong position to negotiate a favourable deal: it would demonstrate that more people favoured leaving the EU altogether than any other course of action. Similarly, as the totals for all three options would add up to effectively 200% if the referendum went into a second round, it is quite likely that, even if it did not win, the Brexit would be supported to some degree – either as their first or second choice – by a majority of voters. This would orchestrate the UK’s clear message to the EU even further.

Of course, if the voting system I propose is used, it’s entirely possible that all three options would obtain the support of a majority of voters on first- and second-preference votes combined. However, for the reasons given above, it is likely that renegotiation would get near to 100%, so long as it is mandatory to indicate a second preference on the ballot paper (which is the only way to ensure that at least one option does win a majority). Another way of putting this is that renegotiation would be unacceptable to only a very small percentage of voters (100% minus the share of first and second preferences won by the renegotiation option); whereas the status quo or the Brexit would be unacceptable to considerably more people. And as a very high percentage of voters would have supported renegotiation to some degree, this is something the country could unite around.

Incidentally, this way of conducting a three-option referendum makes it very unlikely that England would vote differently from the UK’s other nations: the consensus option would almost certainly win through consistently across the whole UK. It’s possible that leaving the EU would gain the plurality in the first round in England but not in the UK’s other nations; but then renegotiation would win comfortably in England, too, in the second round. This makes a three-option referendum viable ahead of the Scottish-independence referendum.

When it came to ratifying the eventual deal reached in any negotiations, there would be a need only for a two-option question: ‘do you agree to the new terms of the United Kingdom’s membership of the European Union that have been negotiated by the United Kingdom government?’. Answer: yes or no. If the country has indeed got behind the negotiations, thanks in part to the three-option referendum showing this course of action commands the strongest support of any of the alternatives available, then it is unlikely the deal reached would be rejected in the second referendum.

The three-option referendum would, then, be the most logical and the least divisive course of action. However, it would also rely on Mr Cameron being able to pass the measure in Parliament. The saying ‘where there’s a will there’s a way’ could perhaps apply here: this much more reasonable, balanced approach could obtain the support of the Lib Dems, so long as Cameron was prepared to make concessions to the Lib Dems in other areas, e.g. resurrecting Lords reform.

But probably Cameron is ultimately not really interested in bringing about any radical changes to the UK’s relationship with the EU, still less in risking the UK’s departure from the EU. So he will undoubtedly go down the ‘political’ road of option 1, if the pre-speech briefings are to be believed. In other words: ‘vote Conservative if you want the chance to moderate or terminate the UK’s membership of the EU’. But if the Tories do win an outright majority in 2015, don’t expect or fear anything too radical.

Plus ça change, as they might say in certain parts of the continent!

PS. Cameron duly gave his EU speech, starting just after 8 am this morning (Wednesday 23 January 2013): a lot earlier than I expected.

He did indeed set out the much-briefed option 1: taking victory in the 2015 general election as conferring a mandate to re-negotiate the UK’s position in the EU, including possibly via a new treaty relating to all 28 members (including Croatia, who will have joined by then); and then offering a straight in / out choice between accepting the new deal or exiting the EU.

My first reaction is that using the general election as a mandate referendum is entirely illegitimate. For a start, even if the Conservatives do succeed in winning an overall parliamentary majority, this will be on no more than around 40% of the popular vote. By contrast, Labour and the Lib Dems – neither of which are likely to include a referendum in their manifestos – will almost certainly win a larger combined share of the popular vote than the Conservatives, as they have done in every election since the Lib Dems’ formation and even earlier, in the days of the Lib-SDP Alliance. Therefore, using the election as a mandate referendum is a way to circumvent the requirement to gain the support of a majority of voters for re-negotiation, and robs the process of the democratic legitimacy that the contrary process – greater EU integration – has suffered from over so many decades.

In addition, presenting the public with only two choices after the negotiations have been completed – assuming negotiations will even take place – is also unfair. The British people will be forced to choose between staying in the EU on the terms that a Conservative government has negotiated or leaving altogether; but we won’t be offered the choice of remaining in the EU on the existing terms. Therefore, pro-EU voters will be forced to accept the new parameters of Britain’s relationship with the EU, based largely on neo-liberal economic principles: the Single Market at the centre of the whole EU exercise, but with the UK free to determine its own industrial, labour and welfare regulations, with fewer protections for British workers than are enjoyed by workers throughout the rest of the EU. (Never mind the paradox that this freedom of British industry to be more ‘competitive’, as Cameron would say, actually undermines the Single Market, because the Single Market is based on everyone playing by the same rules.)

In other words, the whole process would be skewed in favour of a Conservative ideological agenda, and the British people will not in fact have the choice they deserve, which is between three options: the status quo, and potentially the UK participating in even greater EU integration at some future point; a looser relationship, based mainly on economic competitiveness and free trade, as set out by David Cameron this morning; or a UK exit. Only a triple-option referendum, such as I set out above, can deliver that full choice.

To negotiate with the EU first and then have a referendum makes no sense

The idea that the UK government could negotiate with the EU on repatriating certain powers back to the UK first, and then hold a referendum to endorse the deal, makes no sense. And I mean that logically as much as politically or tactically.

Imagine the following scenario. The coalition government does seize the opportunity presented by the Eurozone countries seeking greater fiscal integration to negotiate a repatriation of powers, a scenario described by the Tory MP Peter Lilley on Radio Four this morning. This is in itself an unlikely scenario, as the Lib Dems and Labour would probably be opposed to it, and how bothered are the Eurozone countries going to be to engage in complicated negotiations with a UK whose ambivalence towards European integration they are fed up with, at the very point when they themselves are trying to work out how to integrate even more?

But setting realism aside, let’s just suppose the government come back from Brussels with a deal, and they present it to the UK electorate in a referendum. What will inevitably happen is that many of those who are in favour of the UK withdrawing from the EU altogether will oppose the deal, because it doesn’t go far enough; and many of those who support greater European integration will also oppose it, because it goes too far, particularly if it involves exempting the UK from some of the EU regulations relating to worker’s rights and employment conditions. So the deal could well be rejected by the voters. Is the government seriously going to conduct difficult negotiations of this sort, at the risk of worsening the UK’s relationships with its key European partners, only for it to be rejected by the UK people? Even supposing the government did carry out these negotiations, the most likely scenario would then be that it would not offer the UK people a referendum on it, arguing that this policy was in the Tories’ manifesto in any case.

So a no vote in a referendum on a renegotiated relationship with the EU would be deeply humiliating and damaging to the government; and as it had been brought about by an unholy alliance of eurosceptics and europhiles, there would then have to be an in / out referendum to settle the matter altogether. But equally, a yes vote in such a referendum would also not resolve the question of whether we stay in or out of the EU, as some in the eurosceptic camp would argue the renegotiated relationship had only been supported because it was the least EU-friendly deal on offer, while some europhiles might also support it as a means to preserve the UK’s membership of the EU, fearing that a no vote would trigger the in / out referendum they have tried to avoid.

So let’s sum up:

  1. First, it’s highly unlikely that the government would succeed in negotiating a repatriation of powers given the constraints of the coalition and the priorities of the Eurozone countries
  2. Second, it’s extremely unlikely that the government would run the risk of a deal being rejected by the UK public in a referendum
  3. Any result in such a referendum would be inconclusive, as the repatriation of powers could be both supported and opposed by eurosceptics and europhiles alike.

It makes far more sense – politically, tactically and logically – to offer the people of the UK a referendum such as the one that will be proposed in the House of Commons on Monday, containing three options: the UK leaves the EU altogether; repatriation of some powers; sticking to the present arrangements. Such a referendum would give the government a clear mandate, and ought to settle the matter once and for all.

What happens if there is not a straight majority in favour of any of these options? Well, perhaps the referendum could use the Alternative Vote system, with it being mandatory for voters to list a preference from 1 to 3 for all three options. I’m sure people would find this was a far more satisfactory way of doing things than First Past the Post, in this instance at least!

English parliament

More arguments in favour of two referendums for Scottish independence

Further to my previous post setting out why I think there should be two referendums on Scottish independence – one advisory, for the Scottish people alone; and one definitive, for everyone in the UK – here are some more arguments in favour of a double referendum for the Scots (irrespective of the issue of giving the rest of the British people a say in their constitutional future). These arguments are also taken from a comment I made in a continuing debate with Gerry Hassan.  Actually, this is not so much a two-way debate – as I don’t think my arguments are being taken seriously, whether deservedly or not – but more a case of me pursuing dog-in-the-manger-type opposition to the idea of there being only one referendum, which I think would be unfair to the Scottish people, let alone to everyone else. Anyway, here are those arguments:

I wouldn’t write off a second referendum so easily. There is a precedent, which was the second referendum on the Lisbon Treaty in Ireland. You mentioned a referendum for the UK to leave the EU, Gerry. I can’t imagine that only one referendum would be held on this: there’d be one vote on the principle; then, if the people voted to leave the EU, there’d be protracted negotiations on the terms of separation, which would set out the continuing relationship between the UK and the EU, such as free movement of goods and people; residency rights; regulatory and trade relationships; continuing UK participation in security and international-relations aspects of the EU; financial terms, i.e. whether and for how long the UK would continue to contribute to various EU funds, such as those used for bail-outs, agricultural subsidies, social and development funds, etc.

The end result of these negotiations might well be a form of ‘separation lite’, with the UK effectively continuing to enjoy some of the fruits of membership of the EU – and incurring some of the costs – while being politically independent. I can’t imagine that the final deal, which might well not be what the British people thought they’d voted for, would not be put to them in a second referendum. In fact, it would be felt to be downright unfair not to do so.

Very similar arguments apply to Scottish independence. Apart from my arguments above about the right of the English, Welsh and N. Irish people to have a say on whether they wish to belong to the completely new ‘UK’ that would result from Scottish independence, many people in Scotland (even those who’d voted ‘yes’ to independence in the first referendum) would doubtless feel short-changed if the terms of separation were negotiated and weren’t what they expected: either going too far or not far enough. So many things very similar to those involved in a vote for the UK to leave the EU would have to be worked out in the negotiations that it would seem just a matter of basic natural justice to consult the Scottish people whether they agreed with the final deal.

Alternatively, if the SNP is insistent on holding only one referendum, it should set out its bargaining position in full, so that people know exactly what they’re voting for, e.g. how the oil revenues will be dealt with; what portion of the UK’s national debt will be allocated to Scotland; Scotland’s EU membership; citizenship questions; dividing up the UK’s defence forces; etc. Then I would agree that a ‘yes’ vote would deliver a strong mandate for the Scottish government to negotiate those precise terms. If, then, the final deal was rather different in certain key details, then the Scottish government could chose to hold a second referendum, literally on its own terms, if it felt this would secure a nationwide consensus behind independence.

Let’s reverse the argument. If a ‘first’ referendum failed to win a ‘yes’, but only by a narrow margin, would the SNP drop all hope of ever securing independence in another referendum at a future date under revised terms? If the answer is ‘no’, there’s your dismissal of a second referendum blown to smithereens.

The People’s Pledge: a demand for popular sovereignty

Imagine if May’s referendum on the Alternative Vote were a referendum on the UK’s membership of the EU. The media would be completely filled with the story, and we’d see the claims and counter-claims of the two sides in the argument being fired off in quick succession like a never-ending tennis rally. Compare that to the apathetic drip-drop of coverage the AV referendum has thus far proved capable of generating, and it’s easy to see which is the more important issue.

The EU matters more to people – it raises far more heated emotions – and it’s a more important matter in itself, from a constitutional point of view. Those two statements are intimately connected: the extent of people power – whether and to what degree we have it – matters profoundly to the citizens of a democracy, and it’s also the core constitutional issue. The fact that the EU gets people’s hackles up so much is an indication of the people’s unerring sense of where the real issues affecting their right of self-determination lie. And the fact that a referendum on the system used to elect our hallowed Parliament is being greeted with such indifference is a damning indictment of the increasing irrelevance and illegitimacy of that Parliament and its supposed sovereignty.

The UK parliament has transferred sovereignty – our sovereignty: the people’s sovereignty – in so many areas to the EU, and we the people have not been consulted. In fact, the acronym ‘EU’ has become so familiar that we forget that we’ve never been consulted on our very membership of the EU: the European Union. People who oppose a referendum on our membership of that body point to the fact that ‘we’ were consulted on that topic in 1975. However, apart from the fact that you’d have to be born in or before 1957 to have voted in that referendum, it also wasn’t about membership of the European Union at all but about whether the UK should remain in the European Community (or the European Economic Community (EEC), as it was known then).

This is not an issue of mere nomenclature. The European Union is an entirely different legal entity that didn’t exist until 1993, when the Maastricht Treaty was ratified by all EU member states. It’s this ‘Treaty on European Union’ that gave legal effect to the constitutional provisions and institutions through which most of our laws are now made, with the role of individual national parliaments being merely to incorporate EU Directives into their respective legislation. The Maastricht Treaty was in fact an EU constitution avant la lettre (i.e. before the Lisbon Treaty), both in respect of its legal function and of the fact that it actually constituted (set up) the EU. The Treaty on Union sets out: the legal basis for the EU’s powers; its institutions; the relationship between those institutions and sovereign European member states; the core processes of EU governance; the fundamental objectives of the EU (its ‘mission’, defined in one place as that of “creating an ever closer union among the peoples of Europe”); and the rights of EU ‘citizens’. Because EU citizens is what we are, in law, as a result of Maastricht, whether we knew it or not, and whether we chose it or not.

You’d think, wouldn’t you, that an international treaty making the citizens of the UK also citizens of a proto-European super-state would be submitted to those UK citizens for their approval in a referendum? Well, it wasn’t; but it damn well should have been by rights. The trouble is ‘we the British people’ don’t have a constitutional right to have the final say on laws affecting our constitutional status and provisions because we don’t have a constitution: at least not a single codified document setting out the basic rules for how we are to be governed. Instead, we have the principle of ‘parliamentary sovereignty’.

It’s by reference to this principle that we were denied a referendum on Maastricht and on the Lisbon Treaty (the re-hashed EU Constitution), which consolidates the two founding documents of the EU – the Treaty on Union and the Treaty of Rome – into a single constitutional text while making significant revisions that ‘streamline’ the processes of EU governance and enable the scope of the Treaty’s provisions to be extended without requiring a new treaty. Under the doctrine of parliamentary sovereignty, the UK parliament is said to have the constitutional competence – the right and authority – to take all decisions regarding laws affecting all UK citizens. Therefore, according to this view, there was no real need to hold referendums on Maastricht and Lisbon: Parliament was the legitimate authority in the matter.

But the legitimacy of Parliament is seriously questionable if its elected representatives fail to carry out what they promised to voters: in its 2005 election manifesto, Labour promised a referendum on the EU Constitution but did not deliver it in government on the quite spurious basis that the Lisbon Treaty was not the same thing as the Constitution, and that Parliament was the legitimate forum in which this ‘new’ matter of Lisbon should be debated and resolved. Lisbon may well not be the Constitution but it is undeniably a constitution: saying it isn’t stretches semantics beyond all reasonable bounds. And if a government commanding the majority in parliament fails to keep its promise to consult the people on a matter of such fundamental constitutional importance, then its decision to go ahead with Lisbon regardless lacks any democratic legitimacy even if it can still be argued that it has constitutional validity: Parliament had the power to take us into Lisbon but not the right without asking us first.

So we’re living under the sovereignty of a parliament that has lost touch and broken faith with the consent of the people that is meant to be the democratic foundation and justification for its power. In fact, this divorce between parliamentary sovereignty and popular consent is a product of the fact that Parliament has become subservient to the power of the Executive. In reality, we live, as Jack Straw put it, in an ‘executive democracy’ not a parliamentary or constitutional democracy: the real power is vested in the government, and in almost all matters, Parliament has just become pretty much a rubber stamp for executive decisions, with MPs towing their respective party lines. So it was with Lisbon: the government of Gordon Brown decided it would take the UK into the Treaty, and once that decision had been made, there was no way sufficient Labour MPs were going to defy the authority of the PM and the Party to vote it down, even if they’d wanted to do so.

The problem, essentially, is that under the UK’s unwritten constitution, there is no separation between Parliament and the Executive. The Executive is determined by which party or parties can command a majority in Parliament; and the Executive sits in Parliament, controls its agenda and marshals ‘its’ MPs by means of the whipping system to ensure its laws are voted through. If the Executive decides it’s going to ignore the will of the people, so long as it commands a parliamentary majority, it can pretty much do whatever it wants unless the people rise up in revolt against it.

In other words, Parliament refers upwards to the Executive as the driving force and authority for its decisions, and does not sufficiently refer downwards to the people and consult with the people who are going to be affected by its Laws as to their views in the matter. This is what a ‘referendum’ means: a matter that is to be referred to the people. The other word for ‘referendum’, ‘plebiscite’, reflects this more explicitly, as it derives from the Latin ‘plebs’, meaning ‘common people’. So a referendum is an exercise in popular, rather than parliamentary, sovereignty: it’s a concession that, in this particular matter, the will of the people is pre-eminent. That’s why the UK parliament has been so reluctant to let us have UK-wide referendums on any issue, not just the EU, as it risks undermining the supremacy of Parliament: it risks creating a precedent for saying that it is the people who should be the ultimate power in the land (‘democracy’ meaning literally ‘people power’), and that Parliament’s power ought properly to be merely the expression of people power – the institutional means enabling the will of the people to take effect – and not an instance of power that takes it upon itself to take decisions on behalf of the people without heeding what the people actually want.

It could be argued that the 1975 referendum on the European Community and this year’s referendum on the voting system for UK-parliamentary elections do not radically concede the principle of popular sovereignty. The 1975 referendum asked whether people accepted the terms of the UK’s membership of the EEC as renegotiated by the then Labour government. So it was really asking voters to ratify something Parliament had already decided in principle. Similarly, the AV referendum this year offers a choice between only two possible voting systems that Parliament has decided to put to us, rather than being a genuine response to any sort of popular demand for AV, as there is none: yes, people want voting reform and, more fundamentally, they want radical reform of Parliament; but AV is the most minimal variety of electoral reform that Parliament could possibly have come up with, and it leaves the democratic deficiencies of Parliament as outlined above completely intact.

However, the demand for a referendum on the UK’s membership of the EU made by the People’s Pledge campaign is different. This is a cross-party campaign that asks people to commit to not voting for any parliamentary candidate who is not committed to supporting a binding referendum on the EU. The wording of the Pledge is as follows: “I will only vote at the next election for a candidate who publicly promises to support a binding referendum on our EU membership and to vote for it in the House of Commons”. This is a demand for Parliament to bow to the will of the people and let us have a referendum on a matter that Parliament thinks it has already resolved by virtue of its self-ascribed universal sovereignty.

In other words, if Parliament did give in to the popular demand for a referendum on the EU, it would be radically conceding a principle of popular sovereignty. And that’s not just because Parliament would have to accept that something it believed it had already decided could be reversed by popular demand, but because the very subject matter of the referendum is sovereignty itself: who governs us and by what authority. The sovereign Parliament decided the British people should be governed by the EU in many areas of law and policy; but if the people reverse this decision, that makes the will of the people, not Parliament, sovereign in fundamental matters about how we are governed.

So I’ve decided to sign up to the People’s Pledge online. There’s obviously a debate as to whether or not the issue of Britain’s withdrawal from the EU needs to be dealt with before we resolve the English Question. Those who think the EU issue takes priority argue that English self-determination means nothing if most of our laws continue to be made by Brussels: it would just be transferring the limited remaining powers of the UK parliament to an even lesser body. But I don’t think it makes sense to say one comes before the other. The situation is the same whether you’re talking about a referendum on the EU or a referendum on an English parliament: both involve extracting a fundamental concession to the principle of popular sovereignty on the part of the UK parliament.

In fact, eurosceptic but unionist supporters of a referendum on the UK’s EU membership may not realise the extent to which obtaining and winning such a referendum would undermine the standing and authority of the UK parliament whose sovereignty they would wish to uphold against Brussels. English nationalists should support such a referendum because it will ultimately further the cause of an English parliament, whichever way the people of the UK as a whole voted on the EU question. The UK parliament would have been humiliated into acknowledging that, on constitutional matters (those relating to the fundamental rules about how we are governed), the people’s will is sovereign. And once that genie is out of the bottle, then Parliament would eventually have to give in to the ever louder demands for a vote on English governance.

So we should demand a referendum on the EU as much to establish the general principle that it is we the people who should determine the manner in which we are governed as to wrest back the British-national sovereignty that Parliament first misappropriated to itself and then handed over to the EU.

Send A V-Sign to Westminster: Spoil your ballot in the AV referendum on 5 May

Check out the article of the above name at Rise Like Lions and sign up to the Facebook campaign to send a message to Westminster about the referendums we really want (English parliament and the EU) by spoiling your ballot in the AV referendum next May!

PV: An electoral wildcard

I must confess to being a little obsessed with electoral systems and the degree to which they are proportional. This comes in part from my experience of having been largely disenfranchised by the system presently used for UK general elections and local elections in England: First Past the Post (FPTP). I have never voted for a successful candidate in a parliamentary election, and that’s not because I’ve always voted for ‘fringe’ parties or for none, which I have on occasions but not every time. For most of my adult life, I’ve lived in Tory ‘safe seats’: unwinnable under FPTP even by Labour (for which I’ve never voted) or the Lib Dems (OK, I admit it).

So I’d like to see the introduction of a genuinely proportional voting system such as STV or a Party List system; although this question should not be dealt with in isolation from consideration of the English Question, as I pointed out in a comment to an article elsewhere. Realistically, it may be the case that, for elections to an English parliament or to the House of Commons under a reformed system, the present single-member constituency system will be retained, at least initially, although possibly in combination with a party-list element; whereas the proportional systems I favour require multi-member constituencies or county / regional / national lists.

If single-member constituencies are retained, it’s important to ensure that the voting system used is as fair and proportional as possible. I recently advocated what I now know to be called the Approval System, which involves the ability to vote for as many candidates / parties as you like without giving them a ranking. I think this has some advantages over the Alternative Vote (AV), which is the system Gordon Brown wants to hold a referendum about if Labour win the forthcoming election, in that it turns every expression of preference for a candidate into a genuine endorsement of them as MP if they are elected; whereas, under AV, most candidates are elected on the basis of a sizeable number of lesser-preference votes (people’s second, third or even lower choices).

I would argue that the result that the various single-member systems produce are broadly as follows:

  • FPTP: the winner is the first-choice candidate of most, but not necessarily the majority of, voters
  • AV: the winner is the candidate obtaining a majority of relatively high-preference votes if no candidate obtains a majority of first-choice votes
  • Supplementary Vote (SV – another single-member alternative to FPTP): of the two candidates gaining the largest number of first-choice votes, the winner is the one obtaining a majority of votes once second-choice votes for either candidate are added to their total
  • Approval Voting: the winner is the candidate enjoying the broadest base of support, but not necessarily universally strong support nor that of the majority.

In summary, AV and SV are attempts to overcome one of the main deficiencies of FPTP – the fact that the winner is frequently not supported by a majority of voters – by determining the winner on the basis of a majority of high-preference votes: guaranteed under AV and relatively likely under SV. By contrast, the Approval Vote aims to determine merely the candidate who most people are willing to give some level of support to, but without any attempt to ensure that this is a majority – although it often will be.

I would like to propose a new system, which I’m calling the Popular Vote (PV), which guarantees that any candidate who is the first choice of a majority of voters is automatically elected, while the winner of any poll that doesn’t produce an overall majority for any candidate is, quite simply, the most popular candidate among all voters. My system is a type of Borda Count, but with a revision that overcomes the main problems with that particular method.

It would work as follows:

  • PV is a form of preferential voting and, like a Borda Count, it assigns a number of points to voters’ preferences. The maximum number of points that can be obtained by any candidate is determined by the overall number of candidates. For example, if there are five candidates, the highest number of points you can give to any candidate is five (i.e. they would be your first choice).
  • However, unlike a classic Borda Count, voters would not be obliged to rank all of the candidates (e.g. from five to one); nor would they be obliged to award their top candidate five points. They could, for instance, decide to award their favourite candidate any number of points from one to five: a voter’s first-choice candidate would simply be the one to whom they gave the most points. In most cases, voters would give their preferred candidate five points, but it would be entirely up to them how many points they decided each candidate merited, the only restriction being that no more than one candidate could be given the same score; i.e. you couldn’t award the same number of points to more than one candidate, meaning that you’re obliged to demonstrate your preferences in the points you award to each candidate.
  • When the vote is counted, note is taken of the first preference of each voter, and if a majority of voters selects one of the candidates as their first choice, that candidate is elected. However, if no such majority is attained, the result is then determined by the number of points each candidate has obtained – the winner being the candidate with the most points.

This system provides a fail-safe way of ensuring that the will of the majority prevails, but that if there is no majority, the most popular candidate wins. The fact that preferences are assigned a given number of points guarantees that the candidate with most points is the most preferred candidate. And the fact that, unlike a classic Borda Count, voters are not obliged to rank all of the candidates prevents the winner from being the consensus candidate (e.g. someone who averages around three points out of five for most voters, beating candidates enjoying a high degree of preference from a smaller share of voters) because the number of points voters assign to candidates is a much more accurate reflection of the degree of support they really give to each of them.

This also overcomes one of the main objections to the Borda Count: that it can be rigged by factions or parties fielding more than one candidate to reduce the points value that their supporters will give to opposition candidates. My system also overcomes the vulnerability of the Borda Count to voting tactically by, for instance, giving a higher points score to weaker candidates in order to defeat the stronger candidate you don’t want to win. Both of these problems only exist if voters are obliged to give every candidate a ranking / points score. But if you can simply just leave the box next to the names of candidates you dislike blank, then the number of points you decide to give to each candidate you like is a true reflection of the degree of support you give them.

Let’s take my constituency, where there are five candidates at the forthcoming election: the three main parties plus UKIP and the Greens. Under a Borda Count, I would be obliged to rank all of the candidates from five (my favourite candidate) to one (least favoured). Under PV, I can give any number of points, or none, to any candidate; but once I’ve used any number from one to five for any candidate, I can’t give the same number of points to any other candidate.

The way I’d be likely to vote under PV would be: Lib Dem five points, UKIP four and Greens two – but no points for either Labour or the Conservatives. By contrast, under FPTP, I’m probably going to end up voting UKIP. The reason for giving five points to the Lib Dems under PV would be because the Lib Dem candidate would have a chance of winning under that system, given that the incumbent Tory MP polled only 47% of the vote last time round (not enough to win automatically under PV) while the Lib Dem candidate polled around 32%.

I would want the Lib Dem candidate to win only to help bring about a hung parliament, which creates circumstances in which constitutional and political reform could be favoured. A hung parliament also brings the West Lothian Question into play more than ever, as whichever party was in government would need the support of Scottish and Welsh MPs (and even parties) to pass English laws, which could exacerbate English people’s grievances about the WLQ and might focus the minds of the other parties to do something about it.

Under FPTP, by contrast, the Lib Dem candidate stands virtually no chance, unless the Lib Dems start to push the barrier of 30% support across England. In this context, it costs nothing to use my vote to register a protest against the Lib Dems’ venal abandonment of their previous support for a referendum about the UK’s membership of the EU: hence UKIP – and hence why I would still give UKIP four points under my PV system.

Under a Borda Count, my voting choice would be far more tactical: probably, Lib Dem five (for the same reason as under PV), Labour four, UKIP three, Greens two and Conservative one. The reason for giving four points to Labour would be purely tactical: to harm the Tory and enhance the chances of the Lib Dem candidate without any risk of Labour winning, because they came a poor third last time. But this is a travesty of my real feelings and opinions (loathing Labour, and detesting the Tories’ similar self-serving complacency about the political system and refusal to acknowledge the English Question in any form). There would still be an element of tactical voting on my part under PV, but the system itself still enables my real preferences to be expressed quite accurately: giving a greater priority to getting a hung parliament than registering support for UKIP’s position on the EU and, to a lesser degree, immigration; but nonetheless still showing strong support for UKIP by awarding them four points.

Under AV, by contrast, I’d probably vote UKIP first choice and Lib Dem second, on the basis that if the Tory didn’t win an outright majority, then my second preference for the Lib Dem would get a chance of being registered; but that there’s no point listing any further preferences, because the Lib Dem is going to finish second (or, very outside chance, first) anyway.

I think there can be no question that PV, as I’m proposing it, would produce much more representative results at a constituency level than either FPTP or AV, because if you don’t get an outright majority of first-choice votes for any candidate, the system ensures that the most popular candidate overall wins – and that that candidate is genuinely popular, as the number of points obtained is directly related to the real strength of support for each candidate.

PV wouldn’t necessarily produce a proportional election result at a national level, however, as it shares the deficiencies of any single member-constituency system in this regard. However, logically, it would produce a more proportional and representative result nationwide than either FPTP or AV in that it genuinely determines the most popular candidate in each seat. Therefore, by extension, the aggregate, national result would also be a better reflection of the degree of popularity enjoyed by each party across England and Britain as a whole.

And PV would definitely alter the result in each constituency, compared with FPTP, to a much greater degree than would AV. For example, in my constituency, it would be conceivable that the Lib Dem could win under PV, whereas, under either FPTP or AV, this is virtually unimaginable. In order to win, under PV, voters giving candidates other than the Lib Dem or the Tory their highest score would have to also give a large number of points to the Lib Dem, and a low score or no points at all to the Tory. You could say that this artificially engineers victories for candidates with a relatively low level of first-preference support. But I would argue that PV simply determines the candidate people most want to win, as opposed to the candidate most people want to win, which is what FPTP does. And remember, if a majority of people select any candidate as their first choice, the result under PV and FPTP would be the same.

Up to my readers to decide which system they think is best, and to measure their choice against how the different systems would affect their voting decisions at the upcoming election. I know which system I’d vote for: a system that empowers my vote rather than returning the same party with no real alternative time after time, even without an overall majority.

The national dimension to constitutional reform

I’m a supporter of the Power 2010 initiative that is attempting to keep radical constitutional and parliamentary reform on the political agenda. However, I have serious qualms about the organisation’s ‘British’ dimensions and the way in which it conceives of constitutional reform, ironically, in rather conservative terms: within the framework of the present United Kingdom state. For example, it has grouped the suggestions for reform of Parliament it has received from the public into categories that leave the current status of Parliament as the combined legislative body for reserved UK matters and all English matters fundamentally unchallenged:

  • Fixed-term parliaments
  • Normal holidays and working hours for MPs
  • Elect the second chamber by “sector”
  • Abolish party whips
  • Charitable representatives in the second chamber
  • A second chamber selected by lot
  • Accommodate MPs in the Olympic village
  • Give backbenchers control of parliamentary business
  • Limit government’s use of whips
  • Reform consultations
  • A class of MPs who won’t serve in government
  • Fully elected House of Lords
  • Local councils to nominate MPs
  • Lords to represent organisations
  • Independent Parliament watchdog
  • MPs accountable to their constituency

How about ‘prevent MPs from non-English constituencies from voting on English bills’, or ‘replace Parliament with a new body responsible only for reserved UK matters’? Indeed.

You won’t see ‘Establish an English parliament’ in this list because it appears under the heading of ‘Devolution and local government’ rather than that of ‘Parliament’. In this list, an EP appears third (although I assume these suggestions are listed ‘in no particular order’, as the reality-TV shows say) after ‘A stronger Parliament for Wales’ and ‘More power to regional government’ [in England, you understand]. The way these things are presented creates the impression of a smorgasbord of tasty options that could be mixed and matched according to individual preference, without thinking through their implications and the cross-overs between them. In particular, what would be the implications for England of a Welsh assembly or parliament with powers to enact primary legislation? And what sort of changes to the constitution and structure of the UK – and to the governance of its other nations – would the creation of an English parliament make necessary; in particular, how would the role and responsibilities of the UK parliament need to be modified?

In part, this pick-and-mix character of Power 2010’s options for reform is the product of the way it has been put together: out of a total of around 4,000 random suggestions from the general public, including mine, which was for an English parliament (surprise, surprise). But what is of concern to me is the UK-level process that Power 2010 is proposing in order to whittle the suggestions down to a short list of the five most urgently needed reforms, which prospective parliamentary candidates will be asked to commit to at the election:

“All of the ideas submitted are being looked at as we speak. They will be fed into a representative assembly of 200 citizens from across the nations and regions of the UK – people of all backgrounds and political persuasions.

“The assembly will meet in London in the new year to distil the ideas into a manageable shortlist for the public to vote on, weeding out irrelevant and weakly supported proposals.

“It’s then up to, you, the British public to choose the 5 reforms our democracy most desperately needs in a nationwide vote”.

I have already commented on the Power 2010 website (under my David Rickard pseudonym) about this use of the odious ‘nations and regions’ phrase and all that it implies. My main issue is that a UK-wide ‘representative assembly’, followed by a UK-wide public vote, is not really qualified to come up with constitutional recommendations for England, such as an English parliament. On the other hand, it is not justified in excluding an EP, either. Basically, it can’t make, pass or reject proposals about the governance of England, because only an English citizens’ convention and referendum is qualified to do that. Anything else is just replicating the West Lothian Question, if anything in an aggravated form: Scottish, Welsh and Northern Irish representatives laying down England’s constitutional future.

By contrast, I feel sure that Power 2010’s proposed 200-strong citizens’ assembly will not take it upon itself to make recommendations about the ongoing process of transferring ever greater powers and sovereignty to the devolved administrations of Scotland and Wales. Indeed, on Monday (St. Andrew’s Day), to coincide with the SNP’s launch of its ‘Your Scotland, Your Voice’ white paper on the options for the governance of Scotland to be included in a possible referendum, the same Power 2010 website published a contribution from Canon Kenyon Wright – one of the leading architects of the 1989 Scottish Claim of Right – outlining the ongoing work in Scotland to establish a written constitution for Scotland and the UK, and to reform the Scottish parliament. This work is going on entirely independently, as it were, of Power 2010; and there’s no suggestion from the Power 2010 team that it should be integrated with the broader UK-wide movement for constitutional reform that it is trying to steer. Nevertheless, Canon Wright himself is of the opinion that the work of the Constitutional Commission in Scotland, of which he is the honorary chair, can help to inform and drive the process of overhauling the decaying and defunct UK constitution and political system.

My question is this: if the ongoing progress towards full Scottish self-government, founded on the sovereignty of the Scottish people, is truly consistent with the aim of arriving at a “written constitution which creates a truly constitutional monarchy, and sets standards and principles which are above the common law, and redefine the sharing of power [and which] would be the basis for a very different and radically reformed Union” (in Kenyon Wright’s words), then why does the Scottish Constitutional Commission not make common cause with Power 2010 and other movements that are campaigning for radical UK constitutional reform?

The answer, I believe, is that Canon Wright’s movement is not primarily concerned with UK-constitutional reform at all: it is a Scottish-driven, Scotland-centred process focused on the Scottish national interest, which – in addition to the principle of popular sovereignty – was the other key pledge that the signatories of the Scottish Claim of Right committed themselves to: “We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs, and do hereby declare and pledge that in all our actions and deliberations their interests shall be paramount”.

Now, there’s nothing wrong with a movement for Scottish self-rule putting the Scottish national interest first: that’s only what you’d expect. However, what I object to is the pretence that this is consistent with a joined-up approach to comprehensive reform of the UK constitution carried out in the interests of all its nations and not just one of them. The Scottish Constitutional Commission is basically out to procure a form of government that is both genuinely autonomous and in the Scottish interest, something which Canon Wright elsewhere terms ‘Secure Autonomy’ – a position similar to the third of four possible options presented in the SNP-government’s white paper: a sort of independence within the Union, with Scotland managing virtually all of its own affairs (including taxation) apart from things like defence and foreign affairs. In other words, this is having the cake of independence and eating the cake of security within the Union. Quite what the impact of these new constitutional arrangements would be on the remainder of the Union – if, indeed, anything remained of the Union at this point – is not spelt out by the Canon:

  • “The powers of the autonomous Scotland would certainly include constitutional matters, and full fiscal autonomy, though much more work needs to be done both on powers and on the implications for the Union.
  • “Links with a reformed Union, probably of a neo-federal nature, would be retained”.

Well, yes, a lot more work does need to be done on the implications for the Union. But that’s not Canon Wright’s concern. Scotland will get it wants, and the rest of the Union will just have to accommodate itself to Scotland’s wishes. As the Canon puts it: “Much can and must be negotiated, but sovereignty is non-negotiable”.

That’s all well and good; but this is not constitutional reform carried out in a way that shows much care either for the complex fabric and history of the UK’s unwritten constitution, nor much concern about the damaging impact on other parts of the Union of piecemeal reform to individual pieces of the jigsaw, motivated by partisan interests, that then loses sight of the bigger picture. This exemplifies the cavalier and short-sighted approach to constitutional reform that has characterised New Labour, and in particular the asymmetric devolution settlement designed to see off the nationalist threat in Labour’s Celtic heartlands without any thought for its impact on England. And I see a danger of more of the same being perpetrated through the Power 2010 initiative: the UK-wide representative assembly and vote will not impinge on the evolving devolution / independence processes in Scotland and Wales; but it will make decisions that affect every aspect of English governance by virtue of the fact that the UK parliament has the ultimate sovereignty over all English affairs. Will UK-parliamentary sovereignty simply be replaced by the sovereignty of the British, not English, people in matters of English governance?

I don’t see anybody in the Power 2010 movement rushing to acknowledge the principle of English popular sovereignty, in parallel to the principle of Scottish popular sovereignty of which Canon Wright is such an eloquent exponent. The reason why they do not embrace such a principle is that it would undermine the Power 2010 movement’s assumption that it can serve as the unified vehicle for a ‘national-British’ popular sovereignty and an integrated reform of the whole UK political system – or, as it puts it, “you, the British public [choosing] the 5 reforms our democracy most desperately needs in a nationwide vote”. So it’s not ‘we the English people’ deciding on the forms of governance best suited to our needs, but ‘we the British public’ once again making decisions on England’s behalf. The choice of the word ‘public’ here makes me think that my earlier comparison of Power 2010’s approach with the process of picking TV talent-show winners through a ‘public vote’ was not altogether misplaced. This is like a talent show of original reform ideas, in which the winners are those that are most ‘popular’ with the British public. But this sort of popularity does not necessarily correspond to a genuine exercise of popular sovereignty by and on behalf of the people (the English) who will be most affected by the decisions; nor does it automatically equate to real merit, as we know only too well from the mediocrity of so many talent-show winners.

So what I fear we will get from Power 2010 is a campaign for UK-wide constitutional reform that is meant to be adequate for England and yet will foster a piecemeal approach that allows Scotland and Wales to continue on their own paths to greater autonomy without considering the coherence of the Union as a whole or the rights of the English people to also exercise their sovereignty. Instead of rushing to come up with five glittering, vote-winning competition ‘finalists’ ahead of the general election, what is needed is a much more joined-up, deliberative approach that genuinely seeks to reconcile the currently opposing national interests and aspirations that otherwise risk breaking the Union apart altogether. If the English, Scots, Welsh and Northern Irish people that aspire both to greater national autonomy, and to a continuing and revitalised Union inspired by common principles of democracy, solidarity and liberty, are unable to bring together their different national projects and perspectives, then there is no hope for the Union. A sustainable United Kingdom cannot be based on a multi-track, multi-system set-up where the different nations have different degrees of independence from the centre; and where England is governed as the UK, in the interests of the other UK nations, by UK-wide structures that ignore the will of the English people.

For these same reasons, there’s simply no point coming up with a list of the top-five options for constitutional reform if these are not linked in a logical way that sets out a coherent path towards real change. Certain pre-conditions need to be laid out and satisfied in order for the reform process to be genuine and to stand a chance of long-term success. In brief, here is what I would have as such a list of the five most important principles and objectives, without which the whole exercise lacks coherence:

  1. Formal recognition of the fundamental human right of national communities to determine their own form of government (popular sovereignty), and to decide whether they wish to constitute a national community or not
  2. On this basis, a formal process to determine which actually are the national communities of the United Kingdom, including, for instance, a referendum in Cornwall to decide whether Cornwall should be considered as a nation or not; and an even more contentious process for the Northern Irish to decide whether they regard the Province as a nation in its own right. If the people of Ulster chose not to become a nation, the Province could probably be considered as a self-governing British region, which would not be very different in practical terms from being a self-governing British nation
  3. Following this, referendums in each of the UK’s nations about membership of the EU. Based on the possibly divergent results (e.g. England voting ‘no’ and the other nations voting to remain in the EU), recognition that the UK’s nations may need to have separate responsibility for their international relations. The EU question needs to be resolved first, as it sets the parameters for the amount of genuine sovereignty each nation can have over its own affairs
  4. A genuinely multi-nation, cross-UK consultative and deliberative process to establish the core principles of a new written constitution for a new UK state. Creating written constitutions tends to arise when new nations and states are being established; and the process of constitutional reform in the UK should be no different: any written constitution for the UK must set out details regarding the relationships between the UK’s autonomous nations, and between each nation and the UK state
  5. A series of referendums in each of the UK’s nations to decide on the answer to two questions: a) Do you accept the core principles of the proposed new constitution?, and b) Do you wish those principles to apply to a new (con)federal UK or separately to your own nation as an independent state? Such a combination of options allows for a unified constitutional-reform process for all the UK’s nations as well as keeping open the possibility that some or all of them may seek to go their own way, albeit on the basis of common principles worked out in collaboration with their fellow-British nations.

These are the type of fundamental question that any meaningful process of constitutional reform for the UK must deal with if it is to do justice to the divergent and competing interests of the UK’s nations. The alternative is simply to carry on with the same fundamental identity and structure of the British state as it is now, requiring any idea of English popular sovereignty to be suppressed. But this is neither just nor sustainable in the long run, particularly if the other UK nations are allowed to pursue their own destinies and preserve their influence over England via the Union out of increasingly self-interested motives.