Liberal Democrats and Article 50: a revealing window on the state of British democracy

The Liberal Democrats’ conference decision to campaign for the revocation of the UK’s notification under Article 50 of its intention to leave the EU has caused something of a storm. Obviously there is a debate to be had among Remainers as to what is the best strategy to achieve that goal, but this goes much deeper than that. There is a view – repeated by both politicians in other parties and the commentariat – that this decision is somehow undemocratic. I believe that line of argument tells us something very significant about what British democracy has become.

Liberal Democrat leader Jo Swinson (picture: Liberal Democrats)

It’s significant because what the Liberal Democrats have done looks very much like a return to the norms of constitutional democracy. A party in opposition adopts a clear political position and states that it will campaign on it at the next General Election, and if elected will implement it. That’s how democracy in the UK has in theory always worked; parties set out their stall to the electorate who then vote accordingly.

And, in that context, it’s worth noting that no Government has won a majority of the votes cast at a General Election since 1931, an election fought in wholly extraordinary circumstances; the only time this has happened in the democratic era. Labour in 1945 and 1997, the Tories in 1983; none of these landslides was based on a majority of votes cast, and in an age of multi-party democracy it is difficult to see that happening again (the largest share of the vote, by the Conservatives in 1955, occurred at the high-water mark of two-party politics).

The difficulty, of course, is the 2016 referendum on EU membership. The claim that the Liberal Democrat position is undemocratic is based on the view that it seeks to overturn the result of that referendum. But, of course, it’s one of the basic constitutional norms that Parliament cannot bind its successors; and the Liberal Democrat position is only undemocratic if it is assumed that the 2016 referendum somehow overrides that constutional norm.

Such a view is obviously problematic. In strictly legal terms, of course, the Referendum was advisory; there is no mandate. And we now know that the referendum was demonstrably corrupt, marked by systemic illegality on the Leave side as well as being founded on undeliverable promises printed on the sides of buses. Indeed, the irony is that the High Court ruled that the only reason why the referendum result stands is precisely because it wasn’t binding.

Which leaves us with a simple conclusion – that the referendum result is being used as the rationale for the abandonment of the norms of the British Parliamentary system; that, in an ironic perversion of the sloganising of the Leave campaign, power is being taken away from Parliament. Prime Minister Boris Johnson and his unelected advisers have already shown their contempt for those norms in the prorogation of Parliament.

And the row over the Liberal Democrat position shows how clearly the referendum – and its acceptance as “the will of the people” which must be respected by politicians across the spectrum – has fundamentally shifted the parameters of British democracy. It’s not just that accepting the referedum result implies accepting the corruption that led to the result; it implies that Parliament is not sovereign, and that General Elections can be overridden by an advisory referendum.

In other words, attacks on the Liberal Democrats for being “undemocratc” expose the deep injury that Cameron did to our democracy by calling the referendum, and that May, Johnson and Corbyn have exacerbated by their determination that it must be “respected”. They demonstrate with clarity why referendums are not part of democracy, but a device routinely used by those who want to undermine its processes.

Of course, you can’t put the genie released by the referendum back in the bottle; we cannot simply go back to where we were before Cameron called it. And democrats owe a certain debt of gratitude to Boris Johnson and Dominic Cummings for demonstrating, through their prorogation, how a constitutional norms based on precedent and historical consensus can be abused.

But it does suggest that we need, for the first time since the Reform Acts, a serious national conversation about what Parliamentary democracy means, and should be asking the fundamental questions about whether our unwritten constitution is fit for purpose as the parameters of precedent and practise change.

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