Is now the confederal moment?

In my previous post, I commented on the finding in this week’s ComRes opinion poll of 864 English adults that 36% of them felt that: “Irrespective of the outcome of the Scottish referendum . . . England should become a fully independent country with its own government, separate from the rest of the United Kingdom”. I observed that there appeared to be a close correlation between this 36% and the 36% of respondents who said they supported independence for Scotland; i.e. that people felt that Scottish independence would result in English independence. I went on to argue that this view was mistaken and that it was by no means certain that the people of England would be offered any sort of choice about how they wish to be governed in the wake of Scottish independence, but that England would probably just be incorporated into a new United Kingdom (of England, Wales and Northern Ireland) that would inherit the constitutional status and legal personality of the existing UK.

Although it might be mistaken in terms of political realities, I think this popular equation of Scottish independence with English independence does reveal a hidden, subconscious truth: that the Union at its core is the union between Scotland and England – the Union of 1707. English people feel this in their gut: if Scotland breaks away from the Union, this means that England’s situation reverts to what it was prior to the 1707 Union. In other words, England would again stand alone to govern its own affairs and the Westminster parliament would become an English parliament once more.

This is not a logical thing; nor, as I say, are English people’s expectations that they should be allowed to actually choose whether to be independent or remain in some sort of continuing union with Wales and Northern Ireland likely to be fulfilled. But it’s the truth, and one that the British establishment is going to do its utmost to prevent from emerging from the collective English subconscious into national self-awareness. The establishment’s game plan will be to present Scottish independence as something that would seriously weaken the UK (loss of international prestige, including perhaps the UK’s seat in the UN Security Council; ‘stronger together’; blah blah) but not something that would bring the UK’s existence as such to an end. Scottish independence would constitute ‘secession’ from a UK that would essentially continue unchanged – albeit damaged – once Scotland leaves.

But this strategy on the part of the unionists could prove futile if the emerging English-national consciousness becomes strong enough and the English people en masse demand the right to choose their constitutional and national future. As nationalists, we should do all we can to encourage the development of this national self-awareness, and try to translate what the ComRes poll canvassed as support for a “referendum [to] be held in the rest of the United Kingdom before Scotland is allowed to become an independent country” (45% in favour) into the insistence that the English have a referendum on their own governance – whether that means being part of a new UK, an English parliament within a federal state or full independence. So, for example, whenever the subject of Scottish independence comes up in conversation, we should say we think England should also have a referendum on her independence or at least her own parliament. This way, up and down the land, more and more people will be discussing as a realistic and reasonable option what until recently would have seemed outlandish to most people: that England could be an independent country.

But what would become of Wales and Northern Ireland if Scotland opted for independence and then the English people ratified in a referendum the independence for their own country that this implied? Well, just as England has the right to choose between independence or some sort of continuing union with Wales and Northern Ireland, so do those two countries. In Northern Ireland, of course, an independence referendum might include the option of a united Ireland, which would probably be rejected. But is full independence really a practical or desirable option for either Wales or Northern Ireland?

This is where I think confederalism comes in as a fourth option alongside a new UK without Scotland, a federal UK (with or without Scotland) or independence for all of the UK’s nations. The difference between confederalism and federalism is that, in the former, each nation involved is fully sovereign and independent but chooses to transfer responsibility in certain areas such as defence and macro-economics to a common confederal government. The commitment to participating in shared governance in those areas could be withdrawn at any time, as each nation is fully independent and could choose to go it alone. By contrast, in a federal UK (with or without Scotland), it is the UK parliament and government that would retain ultimate sovereignty, even if the powers of each constituent nation in policy areas of the sort that are presently devolved to Scotland, Wales and Northern Ireland were protected by a written constitution. I.e. federalism would differ from the present devolution settlement in that the UK government couldn’t arbitrarily claw back the devolved powers if it saw fit (e.g. in some sort of ‘national emergency’) and, more importantly, self-government would be extended to England.

Subject to this caveat, the present devolution settlement is in effect a form of asymmetric federalism: semi-autonomy and semi-separation of Scotland, Wales and Northern Ireland from the British centre, but none for England, which continues to be governed as the UK. It looks likely that the choice that will actually be offered to the Scots in their independence referendum will be between an extension of devolution (‘devo max’) and a form of independence in which certain links and areas of common governance with the residual UK would be retained (‘independence lite’). These continuing links with the remaining UK are rather like those of independent states within a confederation, except they would apply only to Scotland: a joint ‘head of state’ (the Queen); common defence and security; shared foreign embassies; macro-economics (i.e. the same currency, with policy in areas such as interest rates continuing to be set by the Bank of England); and social union, i.e. common employment, benefit and residency rights.

The distinction between devo max and independence lite is ultimately about national sovereignty: the actual degree of autonomy for Scotland would be similar under both options, but with independence lite, Scotland would have sovereignty rather than the UK state as under devo max. So the confederal option I’m proposing is essentially independence lite for all the UK’s nations, with a confederal government to look after areas of shared interest rather than the present sovereign UK state. This way, the right of the English people to choose independence if they wish could be fulfilled, while the interests of Wales and Northern Ireland would be protected in that they could also be independent but as part of a continuing, confederal, social / economic / defence union with the other countries of the former UK.

I think we should seriously start pushing for the confederal option now. My feeling is that the Scots simply aren’t interested in being bound into some sort of permanent constitutional, federal union with England, Wales and Northern Ireland, which would fail to satisfy their aspirations to full popular sovereignty and self-rule. It’s already too late to ‘save’ the UK – if indeed it’s worth saving – via the federal route, and the smug British establishment has already missed that boat. Will it have the wit and imagination to put the confederal option on the table – perhaps in a second referendum to ratify Scottish independence, but one in which all the UK’s nations could choose independence lite, not just Scotland?

I think many in Scotland would welcome confederation, because it means full independence but continuing close links with England and the UK’s other nations out of friendship and mutual interest. If unionists want to save some sort of continuing union, this is their most realistic hope. But never mind the unionists: if Scotland has a right to independence lite, so has England – and we should demand it!

DPEV: absolutely the best single-member voting system for the UK and England – honest

OK, I admit it: I’m a voting-system geek, if not obsessive. I really dislike AV, for a number of reasons, not the least of which is that it leaves England short-changed: nothing done to address the West Lothian Question or the broader English Question, to say nothing about the unaccountable nature of executive power in the UK, which relies on a disproportional voting system and a subservient parliament to run the country virtually as an elective dictatorship.

During the course of the last few months, in this blog, I’ve discussed a number of alternative single member-constituency voting systems that are better than the Alternative Vote, in my view, despite the fact that AV is the only alternative on offer. It seems to me I’ve been fishing around for a ‘killer’ system: one that is simple, fair and transparent but which also addresses the two main failings of First Past the Post and AV – that they 1) produce disproportional results and 2) bring about governments with no real mandate that can basically get away with whatever they want (a simplification, I know, but it sometimes feels that way). In addition, if a voting system passes the ‘English parliament test’ – or at least a fairness-to-England test – then all the better. Basically, if I’d be happy if the system in question were used to elect an English parliament, then it must be OK.

I now think I’ve come up with such a ‘killer voting-system app’, so to speak. It’s called DPEV: ‘Dual Parliamentary and Executive Voting’. How it works is as follows:

  1. DPEV is a single-member system. There are two parts to the voting process: a First Past the Post ballot of individual candidates and a separate ballot listing the parties standing in that constituency. Voters must select the individual candidate they’d like to be their MP by marking a cross next to their name – exactly as under the present FPTP system. Again, just as with the present system, the winner is the candidate obtaining the most votes. Voters must also mark a cross next to the name of the party or parties they’d like to form the next UK government. Here, they can vote for more than one party, thereby expressing a preference for a coalition government of the parties in question.

     

  2. The individual-candidate vote is used to determine the composition of Parliament, whereas the party vote is used separately to determine which parties have a mandate to form the next government. Basically, if one party wins an outright majority of the party vote, they are deemed to have a mandate to form the government. Otherwise, the strongest multi-party combination is considered to have a mandate to form a coalition government so long as the overall total of votes for both or all of the parties involved adds up to more than 50%.

    For example, let’s say that 30% of voters want the Tories only to be in government; 25% want just Labour; 10% want only the Lib Dems; 16% want a Lab-Lib coalition; and 11% want a Tory-Lib Dem coalition. Here, the system decides there is a mandate for a Lab-Lib Dem coalition because this was the most popular party-combination vote (i.e. 16% vs. 11% for a Con-Lib combo) and the total number of voters wanting either a Labour or Lib Dem government (single-party or coalition) adds up to a majority (51%). However, if the percentage of voters wanting a Lab-Lib Dem coalition had been only 14%, those parties’ combined vote would add up to only 49%. In that case, despite having the largest coalition vote, there would be no implied mandate for a Lab-Lib Dem coalition, and it would be down to the Conservatives and Lib Dems to try to reach a coalition deal, as the combined total of individual and joint votes for those parties would be 51%.

One other point of detail here: to form a government, a party or combination of parties must garner over 50% of the party vote in England as well as across the UK as a whole. This is because, without devolution for England, the UK government is also an acting English government and so must have a democratic mandate in England separately. Obviously, the best solution would be a completely separate English parliament and executive. But in the absence of that, this does address the West Lothian Question, if not the English Question: it wouldn’t matter, on one level, if English laws were passed by parliamentary majorities that included non-English MPs if the government enacting those laws had a legitimate democratic mandate from English voters. This is what this ‘England lock’ on the government is designed to ensure.

So basically: in the absence of an outright majority for any party in the party-vote bit of DPEV, parties must try to form majority coalitions, beginning with the multi-party combination vote (i.e. where people vote for two or more parties together) that obtained the largest share of the votes across the UK, so long as those coalitions command an overall majority of the votes across the UK and England.

What would happen if neither a Lab-Lib Dem nor a Con-Lib Dem coalition could muster a block of votes of over 50% across the UK or in England only? In this instance, the parties would have to bring in a third coalition partner that had won a sufficient percentage of the party vote across the UK and England, as applicable, to constitute a majority mandate, so long as that third party had won some MPs. However, even so, it is possible that a majority coalition could still not be formed, either because there was insufficient political will among the parties involved or because there would be parties for which people had voted that were without MPs, such as – for example – UKIP, the Greens, the BNP or the English Democrats. In this instance, the parties would have to try to form a coalition or single-party government based on the majority of available party votes. E.g. if only 80% of the UK-wide party vote had been for parties that succeeded in winning MPs, then the government (single-party or coalition) would have to command over 40% of the party vote across the UK, and whatever the corresponding majority percentage would be in England: probably higher than 40% given the lower share of the votes won by nationalist or sectarian parties in England compared with the UK’s other nations.

To prevent this rule becoming a get-out clause allowing the Conservatives or Labour to form governments that were without a true majority mandate, one of the major constitutional innovations of DPEV would be that any government commanding the support of only a minority of voters (as determined by the party vote) would have to be ratified by the electorate in a snap referendum following the conclusion of coalition negotiations. And that means a UK-wide referendum if the government in question was based on minority support across the UK as well as England, or a referendum in England only if the proposed government enjoyed a majority across the UK but was backed by only a minority in England.

If such a referendum failed to win the endorsement of either the British or English people, then the parties would have to go back to the drawing board and try to find a majority coalition or alternative minority government. If the latter were the outcome, this too would need to be ratified in a referendum. Then, if this in turn failed, a new election would have to be held – but not a whole general election with all the new constituency MPs needing to seek re-election, merely a new party election, in which all of the parties that had won MPs would be standing. This would determine a new clear majority mandate, as now the choice of parties would be greatly cut down. In practice, in the absence of an outright majority for any single party in this second party vote-only election, it would be pretty obvious which combination of parties (e.g. a coalition between the Lib Dems and one of the other major parties) had a clear mandate, and the parties concerned could have a constitutional obligation to work together.

These provisions for majority coalitions or – in the absence of majorities – ratifying referendums and follow-up elections, as required, would ensure that any UK government had a clear majority mandate from the people across the UK and England, irrespective of whether the party or parties in government commanded a majority of MPs in Parliament. This relates to another original feature of DPEV: MPs are elected using a disproportional system (FPTP), but the executive is elected using a perfectly proportional system – so the government takes its democratic mandate directly from the people, not from parliament. This does mean that the parliamentary majority could be at odds with the executive majority, and governments could well find they commanded only a minority in Parliament. However, this could be a good thing, in that Parliament would be able to hold governments to account more effectively. Equally, the system for electing MPs could be changed separately, without altering the perfectly proportional method for electing the executive. E.g. you could introduce AV, STV or some other system for electing Parliament that would make it more proportional and representative, and make the majority in Parliament less likely to clash with that of the government.

Not only the executive but also MPs would be more directly accountable to their voters, in two main ways:

  1. Separating out the vote for an individual MP from the vote for a government, as DPEV does, restores the direct accountability of an MP to his or her constituents. Voters can now choose an MP on the basis of their individual suitability for the role – their experience, character and values as well as political opinions – without prejudice to the party they want to be in government, which they vote for separately. By contrast, under the present FPTP system, and the proposed AV system, if you vote for the man or woman, you are also voting for the party and are presumed to be endorsing that whole party’s programme for government as set out in their manifesto. This is rolling up two distinct choices in one, and it’s what helps make MPs subservient to their party apparatus in Parliament, because they are presumed to have been sent to Parliament to fulfil that party’s programme. Under DPEV, each individual MP has been personally chosen by the plurality of their voters: having been elected independently, they are empowered to act independently.
     
  2. This independence from party, and accountability to voters, would be reinforced by another constitutional innovation that would be associated with DPEV. Let’s say a Conservative MP has been elected into Parliament, but a majority of constituents had voted either Labour or Lib Dem (or for both Labour and Lib Dem) in the party vote, and a Lab-Lib Dem coalition was in fact formed. Then, if that Tory MP persistently votes against government bills at their third and final reading (e.g. in 50% or more of cases), constituents should have the right to demand a by-election to hold that MP to account. If the MP is re-elected, they could be said to have received a mandate to continue opposing government bills. The smart thing for the government parties to do in this instance would be to field only one candidate to ensure a government majority in the by-election – but whether they’d have the wit to do that or not is moot.

    I would envisage that voters would be able to call a by-election on this basis one year after the general election, and then again after another year, by means of, say, more than 10% of the electorate turning up at polling stations on a designated day to sign a petition for such a by-election. Once more than two years have elapsed after the general election, there should be no further by-elections of this sort, in that – ideally – there would be four-year fixed-term governments, so that holding a large number of by-elections at the close of the third year of the parliament would be somewhat excessive. (Incidentally, if a coalition collapsed before the fixed term had expired, it could be made mandatory for the parties to try to form a new coalition – but this would also have to be ratified by referendum. If it was rejected in the referendum, then a general election would have to be held.)

    This method of holding MPs to account could be applied to any MP that persistently voted against the party majority in their constituency. For instance, if a candidate from one of the government parties had been elected as MP but a majority of constituents had not voted for the party or parties of government in the party vote, those MPs could also be held to account and forced to fight a by-election if they persistently voted with the government. This means that MPs would truly have to respect the opinions of their voters and take them into consideration in their work in Parliament, alongside party loyalty.

All these aspects of DPEV would bring about much greater popular sovereignty and political accountability: the government taking its mandate direct from the people; MPs directly accountable to their voters and expected to act independently of party dictates. And, as I said above, it provides a solution to the West Lothian Question, if not an answer to the English Question – but I would say that it’s still an excellent voting and constitutional system for any English parliament and so passes my English parliament test.

How does DPEV perform in relation to the six criteria I’ve been using to assess the merits of different single-member voting systems? My first criterion is: Does every vote count, and is every vote counted? Here, I’d give DPEV four out of five. Every party vote, under DPEV, counts in the sense that the right to form a government depends on every single vote cast. However, as many parties for which people vote would still not win MPs, those parties could not participate in government. Similarly, the constituency vote counts for more than it does presently under FPTP, in that MPs are elected independently of their party affiliation and are expected to act accordingly. However, as the system used to elect MPs – at least in my initial version of DPEV – is the disproportional FPTP, many constituency votes will count for little.

In terms of the second criterion – Is the system proportional? – I’d again award DPEV four out of five: it’s perfectly proportional in terms of the party vote that is used to determine the shape of the government,but disproportional with respect to the constituency vote. However, the fact that the government derives its mandate direct from the people, and the fact that accountability of MPs to constituents is built into DPEV, makes it less critical to achieve a perfectly proportional parliament.

The third criterion is: Does the system foster accountability? Here, I’d modestly give DPEV five out of five: it embodies a very high degree of accountability of MPs to their constituents, and it also makes the government directly answerable to the whole electorate, a majority of whom have to give it their backing, either in general elections and referendums to ratify minority governments or coalitions.

Fourthly: Does the voting system allow voters to express the full range of their political and personal preferences, and send a message to politicians? Here, DPEV scores four out of five. It enables voters to support individual candidates that can be of an altogether different political persuasion to themselves, on the basis that whichever candidate you vote for (based on their personal qualities), you can vote for different parties to form the government. In addition, you can vote for as many parties as are on the ballot paper in the party vote. Not all of those votes will be effective, however, in the sense of resulting in representation – and in fact, it would be silly to vote, say, for four parties, as it is unlikely that such a vote will be rewarded with a coalition of all four parties. But all party votes are nonetheless recorded, so that voters can send a message to politicians. In addition, the more people voted for parties such as UKIP and the Greens, the more people would feel emboldened to vote for UKIP and Green candidates, too – with the added incentive that even if only one or two MPs from those parties were elected, they might go straight into government as part of a coalition.

The fifth criterion is: Does the system mitigate / obviate tactical voting? Here, I’d give DPEV four out of five. Under DPEV, there is virtually no incentive for tactical voting, other than to try to defeat the candidate of a particular party in the constituency vote. But the reward for doing so is considerably less than under FPTP or AV, in that MPs of any hue are supposed to act independently and can be held to account if they put party interest above that of constituents by opposing legislation that the constituents have by implication supported (by voting in a majority for the parties that are in government).

Finally, How easy is the system for voters to understand, trust and use effectively? Well, DPEV should be easy for voters to understand and use to their best advantage. You just vote for an MP in the same way as now; and you can vote separately for the party or parties you want to form the next government. However, some voters might find the separation of the candidate and party vote confusing, and also might not use the option to combine votes for multiple parties very effectively (i.e. they might select several parties or not understand that selecting multiple parties means you’re expressing a preference for a coalition of them all). So I’d give DPEV four out of five here.

So here’s how I rate DPEV in comparison with the other single-member systems I’ve discussed, including several I’ve ‘invented’ myself, as I have with DPEV. For the sake of comprehensiveness, I’m also rating the variants of AV I’ve discussed recently (FMT (First Past the Post Majority Top-UP) and AV 2.0); and the method I evoked in my post yesterday, whereby you just have two preferences, and if there is no majority of first preferences, the second preferences of all voters are added to all candidates’ totals, and the winner is the candidate obtaining the most votes (let’s call that ‘TPP’: Two-Preference Plurality!):

Criterion FPTP AV AppV ARV TMPR AV+ NetV 3CV Bucklin
Does every vote count?

3

2

3

4

4

3

4

3

3

Is the system proportional?

1

2

2

3

3

3

3

3

3

Does the system foster accountability?

3

3

4

4

4

4

4

4

3

Does the system let voters express their views?

1

2

3

4

4

3

4

3

2

Does the system mitigate tactical voting?

1

2

2

3

4

2

3

3

3

How user-friendly is the system?

3

2

4

3

3

3

3

3

4

Total scored out of a maximum of 30

12

13

18

21

22

18

21

19

18

 

Criterion DPEV FMT AV 2.0 TPP
Does every vote count?

4

3

4

4

Is the system proportional?

4

2

2

2

Does the system foster accountability?

5

3

3

3

Does the system let voters express their views?

4

3

3

2

Does the system mitigate tactical voting?

4

2

2

3

How user-friendly is the system?

4

3

2

4

Total scored out of a maximum of 30

25

16

16

18

 

Clearly, different readers will rate these voting systems differently according to their own perspectives: my ratings are to an extent subjective. My scoring system is, however, based on an attempt to think through the main implications of the systems in terms of the degree to which they provide an accurate and user-friendly means for voters to record their opinions, and how they might influence voter behaviour.

But DPEV is the clear winner: a single-member system that would produce more accountable government and MPs, and would be fairer to England. I know I would say so, but it gets my vote!

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.

17% of British voters want a referendum on an English parliament

[Update: The exact total is 17%, it now emerges, as Toque has obtained access to the full data sheet. So for ‘15%’ below, read 17%.]

Yes, you didn’t read incorrectly: I meant ‘British’, not ‘English’. At the end of August / beginning of September, YouGov carried out an opinion poll on behalf of the Constitution Society about attitudes to the proposed referendum on electoral reform, provisionally scheduled for next May. Respondents were drawn from across the UK.

One of the questions they asked was: “Which constitutional issue would you most like to have a referendum on?”. According to the chart in the Constitution Society presentation (see above link), I reckon around 15% + of respondents answered “an English parliament”. This was about half the total (33%) that thought the voting-reform referendum was most important. Given how much of a priority the coalition government is giving to the electoral-reform issue, the fact that half as many Britons want a vote on an English parliament – more than want a vote on fixed-term parliaments or equalising constituency sizes: two more items in the government’s cherished reform programme – suggests that the government ought to give proper consideration to a referendum on an English parliament if it is serious about constitutional reform and about popular participation in decisions of this scope.

And, of course, one assumes that almost all of the respondents who indicated their wish for a referendum on an English parliament were resident in England, making the percentage of English people who want there to be a referendum on this subject higher still.

Hearteningly for those who regard a referendum on Britain’s membership of the EU as of higher priority than a referendum on an English parliament, this appears to reflect the priorities of the sample of voters questioned by YouGov: 43% said they wanted a referendum on the EU – more than any other topic. And presumably, the great majority of those who want either referendum are in favour of an EP and of British withdrawal from the EU respectively, making the prospects of both measures being approved in referendums very strong.

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.

Parliamentary sovereignty won’t protect us from the EU, because it’s already dead

So I didn’t call it right: I thought David Cameron would at the very least call a referendum to give a Conservative government the mandate to re-negotiate some of the terms of the UK’s membership of the EU. In the event, today, he merely committed to a pledge that there would be a referendum over any further proposed transfer of powers to the EU (a so-called ‘referendum lock’). In addition, he promised a Tory government would enact a ‘United Kingdom Sovereignty Bill’ guaranteeing that the UK Parliament would retain ultimate sovereignty in the governance of the UK.

However, as Cameron acknowledged in his speech, the Lisbon Treaty contains provisions enabling national vetoes to be abolished and further powers to be transferred to the EU without requiring additional treaties. This means that the ‘referendum lock’ is null and void: by virtue of the same principle making a post-ratification referendum on the Lisbon Treaty pointless (the fact that it has already passed into EU law), referendums on subsequent transfers of sovereignty could also be futile, because the same EU law authorises those changes.

Cameron referred to these provisions in the Treaty as ‘ratchet clauses’ and indicated that they should not be used to transfer additional powers to Brussels: “we would change the law so that any use of a ratchet clause by a future government would require full approval by Parliament”. So, in practice, any future transfers of power to Brussels would not be submitted to the people in a referendum but would be decided by Parliament: the same Parliament that voted to ratify the Lisbon Treaty in the first place, in violation of the Labour Party’s manifesto promise and in defiance of the people’s wishes in the matter. So how can we be confident that a Conservative or subsequent Labour government, commanding a parliamentary majority on the basis of a minority of the popular vote, would not mobilise its whips to rubber-stamp a further EU appropriation of UK sovereignty if it felt this were in the ‘national interest’. Clearly, the Conservative leadership feels it is in the national interest to remain very much committed to EU membership, notwithstanding the considerable erosion of UK sovereignty brought about by Lisbon. Would similar considerations regarding the overriding strategic importance of Britain remaining in the EU be used to justify further transfers of power should they be demanded by our EU partners?

Effectively, all that Cameron’s speech offers us is a reaffirmation of UK-parliamentary sovereignty, both in the form of the proposed UK Sovereignty Bill and the insistence that any use of ‘ratchet clauses’ in the Lisbon Treaty would require parliamentary approval. The referendum pledge isn’t worth the manifesto paper it’s written on, not just because there won’t be any further treaties on which to hold a referendum, nor because it’s hard to trust an incoming Tory government’s promise on this after the Labour government’s breaking of theirs; but because the principle of parliamentary sovereignty itself is being held up as supreme. Therefore, if Parliament decides that something is in the national interest, it regards itself as the ultimate arbiter in the matter without recognising any legal, let alone moral, requirement to seek popular consent for its decision through a referendum.

In other words, the real problem with Cameron’s assurances is that he is basing his defence of the UK-national interest on the supreme sovereignty of Parliament at the very moment at which the legitimacy of that sovereignty is being called into question as never before.

In a sense, Cameron is merely offering us parliamentary business as usual. He refers to a Conservative victory in a general election as sufficient to give him a mandate (without a referendum) to re-negotiate certain aspects of EU law that Britain has signed up to (e.g. the Social Chapter, the Charter of Fundamental Rights, and areas of jurisdiction over criminal law) over the first five-year term of a Tory government. Then, if Britain has still not succeeded in re-negotiating these things, a tougher series of measures could be presented to the British people in the Conservative manifesto for a second term in government – but still without questioning the fundamental commitment to EU membership.

However, all of this is predicated on there being no fundamental changes to the way Britain itself is governed, let alone Britain’s relationship with the EU:

  • Cameron’s serene confidence, as the leader of one of the two governing parties, that the absurd electoral system will afford him at least two terms in government despite securing less than half of the popular vote even in England, let alone in the other countries of the UK
  • those ‘terms’ themselves being extended at the government’s choosing to a full five years rather than fixed terms of, say, four years, which would probably be approved by a majority of the electorate if a referendum were held on it . . .
  • the insistence on the ultimate authority of the UK Parliament both as a general principle and in the particular matter of our relationship with the EU: as much as to say ‘Parliament knows best’; and the only ‘referendum’ the people are going to be offered in reality is a general election whose result doesn’t even reflect the will of the people, but on the basis of which the government ascribes to itself a mandate to do as it chooses.

Parliament proved itself to be unworthy of the British people’s trust by surrendering our sovereignty to the EU without seeking our consent. Now we’re supposed to base our entire confidence that further erosions of our sovereignty can be prevented on the same Parliament.

The point is sovereignty doesn’t even belong to Parliament, whether in the act of giving it away or in the act of exercising it in the supposed defence of our national interests: it belongs to us, the people. Indeed, you could even argue that the venality and spinelessness with which Parliament surrendered our sovereignty to the EU by agreeing to ratify Lisbon without our consent demonstrated the nullity of the very parliamentary sovereignty through which those powers were given away. This was not only a case of ‘you can’t give away what you don’t have’ but ‘you can’t keep what you don’t have’: Parliament’s ‘letting go’ of our sovereignty illustrated the fact that it had already lost it
and any valid claim to it.

So, on the specific matter of Europe, nothing less than a referendum on whether Britain continues to be a member of the EU will do. This will be an exercise of true, popular, not parliamentary, sovereignty. But beyond this particular matter, it’s time that UK-parliamentary sovereignty became truly subordinate to the will of the people, and more specifically, the will of the peoples of the different nations that make up the UK.

The days of a single UK parliament claiming sovereign jurisdiction over every aspect of the British people’s lives are numbered. But it’s up to us, the people, to ensure that we take it back from the EU ourselves and do not leave it to Parliament to do so in our name. Because Parliament has already lost it.

Real Change: Britain or England?

Introduction: Deliberations on British-constitutional reform must factor in the national questions

I recently signed up to ‘Real Change‘. This is a grassroots movement that aims to set in motion a nationwide debate, at local level, about fundamental constitutional reform, culminating ultimately in a citizens’ convention to collate and deliberate on all the options, and to come up with proposals for a new written constitution.

This is something that is urgently required in my view, and which I’ve supported in numerous posts on this blog, as the British government and parliament have lost much of their legitimacy as democratic institutions, especially as far as the governance of England is concerned. Real Change also correctly places the emphasis on popular sovereignty, or bottom-up reform: citizens coming together to decide on the ‘form of government best suited to their needs’; as opposed to Parliament-led, top-down reform, in which the Westminster Parliament will inevitably seek to retain its privileges, particularly the notion that it – and only it – is the sovereign authority in the land.

The inevitable question I have about Real Change, though, is whether it is, or should be, predominantly a UK-wide or England-focused movement. At the moment, it is effectively both, in a way that replicates the dual nature of the current Westminster model of governance. Real Change presently articulates its aims in relation to Britain / the UK: the British people forming a nationwide (UK-wide) movement culminating in proposals for a new British constitution, a (British) Bill of Rights and / or a radically re-shaped (British) parliament. But at the same time, unless something is done to rectify the situation, the would-be reformed British political system would also remain the vehicle for the governance of England: the English Question is an integral part of the British-Constitutional Question, whether this is openly acknowledged or not.

My own question about this is in fact twofold: 1) can a unitary, UK-wide process and set of objectives such as Real Change possibly succeed if they do not explicitly, and from their inception, factor in the different debates around and aspirations towards self-government in the various nations of which the UK is composed? 2) are the campaign and movements for reform of the British constitution and parliament not in fact already primarily English movements: made up of English people who think of the present constitution and system of government as essentially theirs and make no fundamental distinction between which bits of the whole edifice are British and which English?

In other words, Real Change is in danger of becoming another Anglo-British movement: believing that it is possible to implement a new unitary-British system of governance that would be the product of ‘British’ popular sovereignty exercised in a consistent and coherent manner across the whole of the UK; and which, indeed, would represent the expression and consolidation of a redefined ‘British nation’. Such concepts are expressions of the traditional English conflation of England and English government with Britain as a whole. It is highly debatable, to say the least, whether a perpetuation of the fuzziness regarding the overlaps between British and English / Scottish / Welsh / Irish [/Cornish] identities (which it has arguably been one of the main purposes of the present constitutional settlement to keep fuzzy) is feasible and acceptable any more, for any of the nations concerned – even for England. Each of the UK’s nations has embarked on an irrevocable process of defining and reaffirming its distinct identity; and this process is inextricably bound up with the search for the appropriate type and degree of national self-rule: the search for the ‘form of government best suited to its needs’.

This search, in England, is still wrapped up for many – including, arguably, for Real Change – in the forms and structures of British government that have evolved out of centuries of English political history, of which they are the continuation today. In other words, the people who conceive of constitutional reform in ‘this country’ in terms of the British constitution and parliament will tend to be English (or at least, Anglo-British) people who have still not dissociated the identities of England and Britain. No such problem for the Scots and Welsh, who view their own conversations regarding the forms of national self-rule they would like to have as quite distinct from – though bound up with – considerations about the British constitution. Surely, at a ‘constitutional moment’ such as this, where we have a unique opportunity to redraw the whole framework defining the relationship between the UK’s nations and its political centre, it is time to separate out those parts of the picture that relate to the government of England from the elements that may still be able to form the basis for a trans-national British system of government of some sort: to set apart the foundations of a new English-national politics and consciousness from those of a completely re-worked ‘United Nations of Britain and Ireland’.

New British Parliament, or separate English and British parliaments?

The pinnacle and centre of the agenda of constitutional and political reform is the demand for fundamental change to the operation, structure and accountability of Parliament. Notice how the word itself, ‘Parliament’, is so often ‘hypostasised’: turned into a sort of Person or legal personality in its own right, rather like the three Persons of the Holy Trinity in Christian doctrine, by means of capitalising the word and treating it grammatically as a personal subject of sentences: ‘Parliament does this’, ‘Parliament intends that’; and, if I’m not mistaken, I’m sure I’ve heard the use of the personal pronoun ‘she’ for Parliament, rather than ‘it’. But the effect of this is also to reinforce the thinking that there is and can be only one Parliament, i.e. the British Parliament which, it is said, is a perfectly adequate vehicle for the government of England, in both senses of the word ‘adequate’: ‘sufficiently good / good enough’ and ‘appropriate / commensurate’ – and this for the fundamental reason that the traditional political identities of Britain and England are merged and are one – like the Holy Trinity, indeed, with ‘Father, Son and Holy Spirit’ being replaced by ‘Britain, England and Parliament’.

Constitutional prescriptions that take the British Parliament as their sole object and prize are therefore bound up in the traditional non-differentiation of Britain and England. But this model and this view of ‘the country’ (a term that is generally deployed to avoid specifying whether one means Britain or England, or to express the ambiguous conflation of the two) have already begun to radically break down, and they cannot be carried forward into a new, remoulded British parliament. Not ‘should not’ be incorporated into a new parliament, but ‘cannot’. It is quite inconceivable, in fact, that a radically new parliament, designed with the express intention of eliminating the democratic deficits and lack of accountability of the present system, should perpetuate the most glaring example of the present system’s injustices: the fact that MPs for non-English constituencies can legislate for England, which they have not been elected to represent; while neither they (nor English MPs) can make legislation or decisions for their own countries in policy areas that have been devolved.

Once a new constitution is written down, it could not possibly embody an asymmetric structure such as this, which is wholly without any justification, either logically or democratically. Indeed, one of the main reasons for not coming up with a written constitution – and some would say one of the benefits of not having one – is that you would have to address anomalies such as this that have arisen as a result of Britain having a constitution that slowly evolves through successive statutes, rather than a single, largely immutable, set of fundamental constitutional principles.

Devolution as introduced by New Labour in 1998 effectively also created a distinct English layer of governance: those areas of responsibility of the UK government that now apply to England only because the devolved administrations deal with the same policy areas for their own countries. A new UK constitution – or, indeed, a constitution for a new kind of UK – would, one would think, have to rationalise and systematise the devolution arrangements: certain areas of government to be carried out by the respective national parliaments and assemblies (including one for England), and the remaining reserved matters to be handled by the new UK parliament. It is unimaginable that a written constitution would seek to set in stone something along the present lines: ‘Scotland, Wales and N. Ireland have their own parliamentary bodies to deal with matters x, y and z; but for England only, the corresponding matters are dealt with in the parliament for the whole of the UK by representatives from Scotland, Wales and N. Ireland alongside English representatives’.

So a new written British constitution and parliamentary framework would have to deal with the English Question and the relationship between the UK’s nations and central government. The most logical and fair solution for England, in this context, would appear to be to create an English parliament to deal with England-only legislation and policy, whatever overall UK framework this was incorporated within: devolution, federation or confederation [and below, I discuss the possibility that a British constitution could devolve power either within or to England but, at the same time, still deny England an identity as a sovereign nation in its own right].

It is still of course possible that the politicians might seek to circumvent the eventuality of an English parliament by promoting a regional model of devolution, as New Labour attempted to do, with regional assemblies in England supposedly serving as an equivalent to the national bodies in the other UK countries: the infamous ‘Britain of nations and regions’ model. But as this very designation implies, this would be just as asymmetric as the present devolution settlement: England only denied nation status and a national representative body. It’s also a highly unpopular idea as the referendum on an assembly for the ‘North East’ region and numerous opinion polls since then have demonstrated beyond all doubt. Therefore, if the constitutional-reform process is genuinely bottom-up and takes account of what English people actually want, the regionalisation of England will be dismissed out of hand.

The kind of radical reform of Parliament that groups like Real Change and others are pressing for cannot therefore avoid thinking about at least the possibility of an English parliament as a means to redress the English democratic deficit; although, given the unionist and Anglo-British habits of thought that still seem to pervade the constitutional-reform movement, attempts will no doubt be made to ‘accommodate’ the England-only tier of governance within a supposedly unitary British parliament; e.g. through some variant of the English Grand Committee model, with English MPs only being permitted to vote on England-only matters. But this is a highly messy compromise solution that certainly would not satisfy very many English voters and would miss the opportunity that a new written constitution presents: that of setting out which parts of government the people of England, Scotland, Wales and N. Ireland [and Cornwall] wish to be handled by separate national parliamentary bodies, and which bits (if any) they wish to pool together in a continuing UK government.

It may not be possible to produce a ‘one size fits all’ solution, with all of the nations having the same degree of autonomy from the centre, and the same set of devolved responsibilities. And the constitutional framework that was devised would need to be flexible enough to accommodate further change, such as popular demand for independence in Scotland or progression towards a united Ireland. Ultimately, in my own mind, I think we are witnessing the slow break-up of the UK into its constituent national parts, one manifestation of which is this very constitutional crisis. But it’s equally possible that this may not be a one-way process that will inevitably destroy any common ‘UK’-wide system of government or pooled sovereignty between the UK’s nations. The most effective way to ensure that this does become a process that shatters the UK beyond repair would be to try to deny it and attempt to perpetuate a unitary framework of government, one of whose pillars then becomes the denial of any distinct English layer of government and even the denial of England’s distinct nationhood. Similarly, and more fundamentally, if constitutional reform is truly to be driven from the grassroots, then the new structure that is put together will need to be the expression of the different nations’ visions for their future and blueprints for their governance. We should not necessarily presuppose that enough common ground can be created to continue with the UK, certainly in its present form. On the other hand, if the ‘nationwide’ process of debating and attempting to reach consensus on constitutional reform in England does not see itself as being part of a process leading to the establishment of a new national-English politics and government, but rather as a ‘British’ process in the old Anglo-British mould, then it will lose the legitimacy it might otherwise have had as an expression of English popular sovereignty.

British sovereignty is parliamentary; English sovereignty is popular

Real Change and the broader movement of which it is a part are bound to consider the English Question not only on the grounds of logic, fairness and democratic accountability, but also out of what might be termed basic structural considerations. By this, I mean, to what notion of sovereignty does the whole constitutional-reform exercise appeal, and on what national foundations is this sovereignty built upon? As I stated at the beginning of this post, the Real Change project appears to presuppose some notion of ‘British popular sovereignty’: the people of the whole of the UK coming together to redefine the terms under which they are governed. But it is far from obvious that the ‘British people’ as such exist as a sovereign nation of this sort. By this, I don’t just mean that British sovereignty has always been defined in terms of the sovereignty of the UK Parliament rather than the sovereignty of the people; but rather that popular sovereignty itself has tended to be conceived of as being the property, if at all, of the various UK nations rather than the British people as some sort of unified collectivity.

This certainly is the case for Scotland, where the principle of popular sovereignty was (in)famously re-stated in the Scottish Constitutional Convention of 1988. This body issued the Scottish Claim of Right, to which I have already alluded in one or two places above, that asserted “the sovereign right of the Scottish people to determine the form of Government best suited to their needs”. It is on the basis of this constitutional principle that devolution was enacted, and to which any further extension of devolution or right of Scottish independence effectively appeals.

Insofar as it has historically been constitutionally and politically assimilated to the UK, England has not maintained such a strong tradition of popular sovereignty but has tended to accept the legitimacy of UK-parliamentary sovereignty. But it is nonetheless arguable that the legitimacy of UK-parliamentary sovereignty relies on the more fundamental and historically more enduring principle of English popular sovereignty. Without going into all that history, I would argue that English people – at least, since the English Civil War and the English Bill of Rights – have tended to believe in the proposition that the sovereignty of first the English Parliament and subsequently the British / UK Parliament derived from the democratically expressed sovereign will of the people: the English people, that is. Freedom and democracy, on this view, reside in the free will: that of the people who elect the representatives of their choice; and that of those representatives, the MPs, themselves who, if they are truly to re-present a free nation in parliament (if they are the parliamentary ‘instantiation’ of the people), must also be free to vote as their conscience and free intellects dictate – making them representatives of the people, not mere delegates or party-political pawns. This is the English model of parliamentary democracy that the British Parliament – after the Acts of Union with Scotland in 1707 – took on in its essentials, with the consequence that the English people have always regarded Parliament as still an English parliament in all but name, even though its geographic remit was extended to Scotland and Ireland. That is, UK-parliamentary sovereignty, in the popular imagination of the English, was sovereign by virtue of continuing to express and represent the sovereignty of the free English people.

Devolution introduced a radical break with this, at that time, nearly tercentennial, unwritten set of assumptions; and much of the popular, English sentiment that Parliament has lost its legitimacy and that politicians have lost touch with the people derives, in my view, from this schism whose effects in the national Anglo-British psyche are far-reaching and traumatic, and will ultimately tear apart the unified Anglo-British consciousness itself. Putting this in logical form: if UK-parliamentary sovereignty derived its legitimacy from the popular will, and if the people whose will is in question were the English people, then once Parliament no longer feels it has to reflect the will of the English people, it has lost its legitimacy.

One clear example of this is the West Lothian Question, discussed above: the fact that Parliament believes it can still legislate for England alone despite not being a representative body for England, elected by and accountable to the English people in its decisions on England’s behalf. But in addition to this particularly blatant example of disregard for England as a nation, many of the other examples of Parliament’s assaults on our traditional English liberties can be seen as an expression of the fact that, post-devolution, Parliament has effectively abrogated sovereignty to itself alone, i.e. sovereignty has become divorced from the very wellspring of its legitimacy: the will of the English people. How many of the infringements of our liberty that Parliament has enacted since 1998 would have been accepted by the English people if they had been given the chance to have an informed public debate and vote on them in a referendum: detention without charge; weakening of the principle of innocence until proven guilty; restrictions on jury trials; etc., etc? Probably very few, if any; and the fact that these measures, undermining historic English freedoms, would not have been ratified by the English people is almost the very form and frame through which their illegitimacy is to be viewed and understood.

The point I am making is that the UK parliament has lost its legitimacy because it is no longer a valid English parliament; and the reason why this is so is that parliamentary sovereignty has become divorced from the English popular sovereignty that once informed and supported it. How has this happened, and what is the link with devolution? This is an extremely complex and, as I said, far-reaching and traumatic question. But in essence, what I am saying is that Parliament severed its organic link with popular sovereignty because – as a result or precondition of devolution – it lost its profound identity as the English parliament; and as Parliament ceased to identify with the English nation, so the English nation increasingly no longer sees Parliament as an institution that represents it. Under the unitary system before devolution, Parliament could safely be at once the English parliament and the British parliament: English in its traditions and ground of popular legitimacy; British in its administrative and legislative remit.

After devolution, the ultimate ground of sovereignty throughout the UK could no longer be said or thought to be the will of the English people. Redirecting English popular sovereignty into a separate English parliament similar to the new bodies in Scotland and Wales would have explicitly broken up the long-standing organic identification of the English with Britain and British parliamentary democracy. The fear was that once that Anglo-British national identity had dissolved, so would the Anglo-British parliament and state that depended on it. So, in order to maintain the pretence of a supposedly still unitary British state, run from the Westminster centre, that state had to recast itself as a monolithic Britain / UK whose sovereignty, authority and national identity was conceived as having no fundamental reference to, or dependence on, their traditional foundations: this became British-parliamentary sovereignty as a self-validating thing, not popular English sovereignty as validating Parliament; Britain and Britishness superseding England and Englishness.

More than any other factor, it is this fundamental occulting and suppression of England from the heart of the British state, which the English people previously regarded as their own, that has led to the huge disenchantment with politics felt by the English; whereas polls reveal that Scottish, Welsh and N. Irish people generally feel that devolution has brought more accountable and more effective government to their own nations. This ‘de-anglicisation’ has also been the basis for New Labour’s and Gordon Brown’s efforts to assimilate (English) national identity to (British) citizenship, involving the mobilisation of a huge political and cultural machinery in attempting to reinvent and re-describe everything that has historically been English as ‘British’, and in referring to every governmental and political action that relates to England only as if it affected the whole of the UK – if only by omitting the key fact that it concerns England alone.

Why is English nationality replaced by British citizenship in this way? Because the sovereign will of the English people has been suborned by the British state-in-Parliament, which then becomes the sole founding, sovereign, national entity: the embodiment of the ‘national identity’ of its citizens, indeed. And, as I have just described above, this has manifested itself through a massive project to create a new ‘British Nation’ replacing England. Producing a brand-new written constitution also partakes of this sort of nation building: constitutions make claims concerning the identity and values of the people whose forms of government they are setting out. Constitutions define and create new nations as much as they reflect pre-existing nations. Real Change and its fellows must resist playing into the drive to establish a new, England-denying British Nation – if only because the English people do not want it. But one suspects that many of the advocates of the Real Change movement, initially at least, supported New Labour’s drive to create a New Britain.

New constitution: British or English?

Creating and writing up a constitution involves placing ‘the nation’ on a new foundation, then; if not establishing a new nation altogether. What kind of nation do we want it to be? And, more importantly, do we want the nation to be Britain or England?

This question relates to another fundamental problem that has prevented the UK from formalising its constitution in a single master document: states with written constitutions tend to also consider themselves as nations. The uniqueness of the UK is that it is a state comprising four [or five] national communities: not a nation in its own right but having all the unitary state apparatus and external identity of a nation state. Setting and writing up a ‘British constitution’ potentially establishes the UK as a nation state for the first time. It says: ‘This is what Britain is and who the British are [as a whole]; this is our founding law; this is our system of government; this is what we regard as ‘British rights’ [and responsibilities], etc. In this way, an overarching ‘national-British’ unity would formally and officially subsume the separate national identities, values, legal systems and institutions of the different UK nations, unless the distinct status and sovereignty of those nations were explicitly guaranteed in the constitution. We’d then all be just British. Full stop. Citizenship and nationality united in one kingdom.

No wonder, then, that so many of New Labour’s leading lights and acolytes have supported ideas such as a written constitution and a British Bill of Rights and Responsibilities. In his recent speech in favour of constitutional reform in the wake of the expenses scandal, Gordon Brown tried to make out that the idea of a BBRR was a response to the ‘public’s’ indignation at what MPs had been getting up to; but it’s been a pet project since the inception of the Brown premiership. Brown even started uttering support for the idea of a written constitution. But you can bet your bottom euro that if such a document ever saw the light of day, this would not so much as include the word ‘England’, other than in the sense of ‘the part of the UK traditionally known as England’ or in the names of ‘British regions’, such as the ‘East of England’ (traditionally, in fact, known as East Anglia – but ‘East England’ confers existence on an entity known as ‘England’, whereas ‘East of England’ is just the easternmost part of a territory commonly referred to as England). Brown’s written constitution would be of the British type I’ve just described: creating a new Nation of Britain on the ruins of ‘England’. And, no doubt, it would all be decided on in a top-down manner by the sovereign British Parliament. Or, if we were offered a referendum, this would doubtless be a choice between the new constitution or the present asymmetric devolution settlement; and the results would not be counted separately in each of the UK nations, in case England voted against but Britain as a whole voted in favour.

But what kind of constitution does Real Change want: British or English? Support for a British constitution – and a preference in general for a de-anglicised ‘Britain’ over either the old anglocentric UK or a new, distinct, self-governing England – is often predicated upon an assumption that ‘British’ identity and values are more progressive, inclusive and universal, whilst ‘English’ identity and values are seen as conservative, ethnically exclusive and insular. The reasons for this cultural trope are many and varied, not the least of them being the general repudiation of the English popular consciousness and identity in the wake of devolution: England being associated as the (formerly) dominant and oppressive national power behind the British Empire and the pre-devolution UK; England, and English popular sovereignty, needing to be denied in order for a new ‘inclusive’ (multi-national, multi-cultural) Britain to emerge.

This sort of dualistic thinking is of course profoundly flawed, stereotypical and insulting (if not on occasions downright (inverted) racist); but it continues to inform much of the thinking about ‘Britain’s’ identity and future not only in government circles but on the part of the ‘chattering classes’: the educated liberal middle class (‘Guardian readers’) and the class from which the ‘political class’ is drawn, who see themselves as the ones best qualified and most entitled to set the direction for the ‘nation’. I have the sense that Real Change is headed up predominantly by people of that sort, although I am conscious that I am stereotyping them in my turn. But what gives me that feeling most of all, apart from personal prejudice, is that Real Change does indeed appear to conceptualise the new constitution towards which it is striving as a British constitution. British constitution; British nationality. Bye bye England.

Am I exaggerating the risk? Possibly, yes. The one guarantee that Real Change will not end up producing proposals for a British constitution that confines the nationhood of England to the dustbin of history is that it is (supposed to be) a genuine process of popular consultation and participation, in which there should in theory be sufficient scope for the merits and demerits of establishing a distinct English-national tier of governance to be properly debated; and, if they are, I can’t see what rational and just alternative could emerge, given that Scottish / Welsh / N. Irish devolution are here to stay and the English are also entitled to a parliament that represents them and speaks on their behalf.

But the stakes are very high because it is not just people’s national identity (and the identity of ‘the nation’) that is at play; but also fundamental philosophical values are typically (and by no means always fairly) aligned with either the British or English side of the equation:

  • Britain: republicanism; secularism; multi-culturalism; liberalism
  • England: monarchy; Christianity; ‘ethnic’-English culture; conservatism.

Of course, this is just another nonsensical example of simplistic oppositional thinking; but the supporters of a republic, of an ‘officially’ non-Christian (disestablished) state, of multi-culturalism and of liberal progressivism do tend in the main to pin their flag to the mast of Britishness rather than Englishness – even though, as a fact, the increasingly secular, anti-monarchical, multi-cultural and liberal society that exemplifies their values is primarily England, rather than, for instance, more socially conservative Wales and less multi-cultural Scotland. Britain is a global consumer brand, and its brand values are ‘secular-liberal-progressive-multicultural’; but the nation that is in danger of being sold out under that brand is England.

Real Change: Time for a new England to come into being

But there doesn’t have to be a stark black-and-white choice between modern, secular Britain and supposedly atavistic, Christian England. However, the choice is between Britain or England. We can debate our values once we know who we are. This is an existential choice as much as it is a constitutional or philosophical choice. Who are we; who and what is our nation; and what do we wish to become?

A choice for Britain is a choice for an Anglo-British past that has gone for ever: the UK is no longer, and can never again become, a unitary state in which British power and institutions rest on the foundation of unerring popular English support. The other nations of the UK have embarked on a journey to discover their own sovereignty and the forms of government best suited to their needs. England alone remains as the rump of the unitary UK, governed not by its own people but by a ‘sovereign’ parliament that no longer needs to command the support of the English people and does not look to it. It is time for England to embark on its own journey, as a sovereign nation, to determine new forms of government for a new era.

Alternatively, another choice for Britain is the choice for a new, homogeneous British nation-state: the stuff of New Labour’s and Gordon Brown’s dreams. This might formalise the present devolution arrangements and institute some form of devolution, regional or local, for ‘England’. But the distinct millennial British nations that so many of us continue to cherish would effectively be a thing of the past: subsumed into a formalised British citizen-nationality. No England, just as in the first type of constitutionalised Britain described in the paragraph above; but also, no Scotland, Wales, Northern Ireland or Cornwall. Not in the same sense, that is: as sovereign national communities. Sovereignty would reside in the British state and its self-identification with its people.

The real alternative? England. Real Change in England becomes an exercise of English popular sovereignty, in which English people collaborate in working out the forms of government best suited to their needs. This process can then be dovetailed with similar processes and national conversations that are already much further advanced in the UK’s politically more self-aware, because self-governing, nations, as well as with the Real Change and other associated processes as they are rolled out across Scotland, Wales and Northern Ireland. From this process, which is clearly an ongoing, evolutionary one, should emerge distinct views on how each nation wishes to rearrange its constitutional and political affairs. There may just be enough consensus on which aspects of national sovereignty and areas of government to pool together in a new sort of UK; or there may not be. But at least, such a process will be a truly bottom-up one, in which the nations of Britain work out for themselves how they wish to be governed.

Sovereignty belongs to the people and to the nations. We the English people can and should deliberate only on the constitutional arrangements we desire for England. Whether those arrangements also include provisions for joint-British governance, in partnership with our island neighbours, is not ours alone to decide. But we can choose to be a nation in our own right and in our own name: England.

Now that’s what I call Real Change.