Saturday, 13 April 2019

UK Democracy After Brexit - what's gone wrong, and what's to be done?

At the time of writing, the United Kingdom's departure from the European Union  has been deferred several times after the Prime Minister, Theresa May, found she had no House of Commons majority for her government’s proposed terms for leaving. So we are not (yet) ‘after Brexit’. This may be resolved one way or another. But whether or not the UK actually leaves the EU, we are in a time ‘after Brexit’ in terms of its exposure of the flawed way in which UK democracy is constituted. 

The main mechanism of this constitution is for voters to elect both a Government, and an alternative government in the form of an Opposition, by means of electing the House of Commons. Having denied May her deal, the House of Commons has made moves, partly successful, to take control of some executive functions, regardless of any elected majority comprising one or more parties. Electors wonder: who voted for that? 

There are modern precedents for Commons majorities to be achieved by crossing party affiliations. The legislation that approved UK membership of the European Community in 1972 and the vote for the invasion of Iraq in 2003 are examples. But both gave a mandate for the actions of a more or less cohesive government having been elected with a reasonable majority. Can this way of electing governments continue – and should it? Are there alternatives that might protect the central constitutional principle of parliamentary sovereignty?

Under the present system, each constituency (at the moment there are 650 of these) elects one member of the House of Commons (known as its ‘MP’ or ‘Member of Parliament’ - though technically the members of the upper House of Lords are also members of Parliament). With rare exceptions, voters elect a member with a party affiliation. This attachment signifies the party the elected member will support to form a government, and specifically the particular person who as its leader will become Prime Minister if that party has a majority in the House of Commons. The elected member is the person with the greatest number of votes cast by means of placing a mark by his or her name on a piece of paper. This is ‘first past the post’ (FPTP). 

The defects in this model are well known. It squeezes out alternatives who are thought unlikely to finish in the top two of a FPTP race. It therefore makes it very difficult to introduce new political movements in a Commons election. It focuses parties’ energy on ‘swing’ voters in ‘swing’ constituencies.  The ‘popular’ vote (the total of all votes for all parties) is imperfectly represented in the make-up of the House of Commons (ie it is not a ‘proportional’ system). The House of Commons is beholden to the Executive and correspondingly weaker when it comes to holding it to account and developing innovation in policy and government.

There are strengths in the system. The effect of FPTP is to magnify a small advantage in votes to confer a clear majority on a winning party. One benefit of this, generally and until recently, has been clearly mandated government, in a way that may elude proportional systems. It makes it virtually impossible for a party to win Commons representation with support running at much below 30% of a widely distributed vote, so (it is thought) excludes ‘fringe’ parties that may be adverse to democratic values. It is simple for electors to understand – they just decide which of two contenders they prefer as Prime Minister, and put a mark by the relevant representative on their local ballot. The single member constituency system creates a personal relationship between the voters and the local MP.

The current situation makes it doubtful whether many of these strengths still apply. We no longer have binary politics where two pre-eminent forces command a roughly similar balance across all parts of Britain. The Scottish situation means that a party (the Scottish Nationalists or SNP) with 3% of the UK-wide vote has 35 seats (on 2017 results) out of 650 in the Commons. By contrast the advocates of leaving the EU, the United Kingdom Independence Party, UKIP, took 12.6% of the UK-wide vote in 2015 but gained just one seat, and this was one already held by an ex-Conservative sitting MP. The Liberal/SDP alliance in 1983 took over a quarter of UK votes to win 23 seats. In each case these disruptive political movements reshaped the political landscape but the system then excluded them from the space - the House of Commons - where decisions are made and people are held accountable for the consequences. 

Neither major party can any longer guarantee that its MPs will support its leadership sufficiently to enable a government of that party to function effectively (the Conservatives because of its Leave/Remain split, Labour because of its socialist/social democrat split.) So the X on the ballot paper no longer has consistent significance as a way of electing a government. Past crises in the binary model have been resolved by adjustments in the two-party system to reflect the new balance of electoral advantage: we can think of Labour replacing the old Liberals after 1918, or Labour moving to the political centre to squeeze out the SDP after 1983. It is difficult to see scope for such transition out of the current democratic crisis.

The House of Commons’ many functions – executive, legislative, scrutiny – are now complicated by devolution and so-called ‘asymmetrical federalism.’ Scotland and (less powerfully) Wales have devolved Assemblies and their own governments with First Ministers. England, with 85% of the UK population, has no devolved government of its own, but through the devices of ‘EVEL’[1] it functions at times as the legislative assembly just for England or just for England and Wales. The Scottish situation creates an anomaly: well represented in the House, but without a ready route for experienced politicians to reach high office in the UK. Gordon Brown, holding a Scottish constituency, became PM in 2008 without controversy, but when he wanted to move his fellow Scot, the Chancellor of the Exchequer, to the Home Office, Alistair Darling objected that such an office could no longer be held by a Scot. When there was talk of the leader of the Scottish Conservatives, Ruth Davidson, joining the Cabinet, the suggestion was that she should be found an English constituency. It seems doubtful that an MP from Scotland could now become PM. As long as Scotland continues to be part of the Union, its experienced leaders must surely have a route to access to the senior posts governing that Union. Meanwhile regional political representation and governance in England has proceeded fitfully and inconsistently. The current system fails to reflect English and English regional identities and interests, and arguably Brexit is, among other things, an expression of these frustrated attachments.

A further complication arises from the way that major parties now elect their leaders. From 1922 until 1983, Labour MPs chose their leader; since then a series of changing arrangements has transferred this power to party members. The Conservatives have undergone a similar transition. A little over one percent of the electorate are members of the Labour Party[2], and the corresponding proportion with the Conservatives is about a quarter of one percent. Both groups are subject to high turnover, so represent shifting sections of the population. The choice of Prime Minister on offer in a general election reflects the choices of these tiny, unstable, self-selected fringe groups. The policy choices then reflect the way these leaders compete in the ‘market’ for the favour of the voters who decide the outcome of elections, i.e. ‘swing’ voters in ‘swing’ constituencies. But as any economist can explain, for a market to work effectively requires low entry barriers and large numbers of competitors. A market dominated by two providers is not competitive.

Is the House of Commons any longer fit for its many purposes? It is a theatre where complex struggles are depicted in ritual combat in an overcrowded chamber, but things that matter are analysed in sheltered alcoves or apparently empty spaces with little public engagement. MPs are mostly selected by tiny groups of the party faithful. They squeeze through to the Commons where around a quarter of them are paid hirelings of the Executive and there are good prospects of high office. Holders of high office perform three roles: running highly complex and demanding government departments, they also operate politically under intense scrutiny to justify their existence to public and Parliament, and serve as constituency MPs for electorates that expect a wide range of public and private concerns to be addressed by their parliamentary offices. A democratically empowered electorate gazes at its political leaders, struggling amidst these multiple duties to manage the business of an ancient state, disintegrate while private griefs and personal anxieties are paraded as badges of their evident human frailty. Since the fall of Blair we have seen, arguably, three dud Prime Ministers and three elections that have failed to produce sustainable majority governments. However Brexit goes, it is clear that many electors will feel betrayed, and the risks to the legitimacy of democracy should not be underestimated. There can be no certainty that more general elections will restore the current system’s capacity to govern. A conversation about alternative systems to sustain democracy is essential.

So what is to be done?

The first priority is to find an alternative way to elect a government. We must no longer hope to elect a viable House of Commons which is simultaneously an executive body, a legislature and a scrutiny body serving the Union, and England and/or England and Wales. 

We could elect a Prime Minister directly, but this would violate the principle of Parliamentary sovereignty.

I suggest replacing the House of Lords with a small UK Council of the Regions and Nations (CORN), elected on a proportional basis with multi-member constituencies formed out of the three smaller nations of the UK plus the regions of England[3].

In my proposal, the CORN will provide the Monarch with one name for appointment as Prime Minister (PM) who does not have to be a member of either House of Parliament. The PM will appoint and manage Ministers who also do not have to be members of either house. This government is referred to here as the Union Executive. The government will have a dual function serving the UK and England[4]. The PM will appoint a minister to serve as his or her Deputy who will fill the office of PM in the event that the office of PM is vacated until a duly appointed successor takes office.

The House of Commons will be elected by single-member constituencies in England, using the Alternative Vote method so that each member is endorsed by more than half of the voters. The Commons will be the legislative body for England and scrutinise the Union executive on behalf of the English electorate. The House of Commons will be joined by representatives from Scotland, Wales and NI when considering legislation affecting the whole Union and scrutinising the Union executive as appropriate on behalf of the UK population as a whole. When acting in this capacity I call it  the House of Commons (Union).

The House of Commons will use electronic methods to register votes. (The dramatic production whereby MPs hang around the Palace of Westminster awaiting a bell to summon them to trudge through corridors to be counted, at the end of which count the Speaker roars ‘unlock’, has provided great entertainment for the world in recent weeks. But it is grossly unfit for purpose in a modern representative democracy.)

The PM will appoint a Secretary of State for England to appear regularly before the House of Commons to account for the performance of the Union Executive in its capacity as the government of England.  

The PM will appoint in each department of state a Parliamentary Secretary who is a member of the House of Commons (Union) and will account to the House of Commons for the performance of the department.

Vacancies in the office of PM will be filled by means of the CORN providing the Monarch with the name of the successor. The office of PM will be vacated if the sitting PM (1) dies or (2) gives notice to the Monarch of an intention to resign or (3) is dismissed by a resolution of the CORN with the consent of a majority of the House of Commons acting in a Union capacity or (4) within eight weeks of the election of a CORN if the CORN has provided the Monarch with the name of a successor (therefore, if the CORN fails to agree on a successor, the existing PM will remain in position and unless and until dismissed in accordance with (3) above).

If a vacancy in the position of a PM has arisen and no successor has been named by the CORN, then the Deputy PM will succeed to the position of PM.

Election of a CORN will take place every four years or sooner if the CORN resolves to dissolve itself or is otherwise dissolved.

Casual vacancies in the CORN arising through death, resignation or dismissal on grounds of gross misconduct will be filled by means of a by-election in the constituency in which the vacancy arises.

The election of a House of Commons is determined by relevant legislation and is not subject to any procedures of the CORN.

The procedures of the House of Commons and of the three devolved national assemblies are to allow a non-member to appear before the House or Assembly to answer questions. Ministers including the PM will appear appropriately and regularly to answer questions in the House of Commons and in the devolved national assemblies.

There will be a procedure for the election and appointment of additional members of the upper house. These will be people with relevant expertise and representatives of interests. The upper house including CORN will scrutinise legislation emanating from the three national assemblies and the House of Commons whether acting in an English or a Union capacity.

There will be a procedure for either House of Parliament to establish citizens’ juries to consider matters of public policy or to scrutinise draft legislation or the performance of the government and its agencies.

There will be an official body known as the Parliamentary Office of Public Strategy (POPS) which will provide the House of Commons and citizens’ juries with independent advice on the long term policies which will sustain the constitution and strengthen the United Kingdom, and in response to requests for advice by the House or by a jury. POPS will be appointed solely by the House of Commons.

[1] So-called ‘English Votes for English Laws’, a parliamentary procedure to prevent MPs voting at the final stage of legislation that affects only nations within the UK in which their own constituency does not fall
[2] These numbers are complicated by how ‘registered supporters’ (largely members of affiliated Unions entitled to opt to vote) can also participate in Labour leadership elections. About half a million people voted in the second election of Jeremy Corbyn as leader in 2016 (and about 400,000 in his first election in 2015). The total UK electorate is 46 million.
[3] Labour has in the past proposed a ‘senate of the nations and regions’ to replace the House of Lords. However its constitutional role was not clear.
[4] A separate English government, representing by far the most powerful and populous nation within the UK, would probably lead to two rival governments.