affiliated to the International Association of Constitutional Law
The Brexit process has been a major event in British constitutional history, and in the history of constitutionalism in general. It originated in the positions taken by two Prime Ministers. David Cameron said that he was bound to hold a referendum because that commitment had been contained in the Conservative Party manifesto for the 2015 General Election. Theresa May said that she was bound to give effect to the outcome of the 2016 referendum because it had expressed the will of the people.
The development of parliamentary democracy, a form of indirect democracy, has been at the heart of British history for seven centuries. Direct democracy is decisive political power exercised by the people other than through established constitutional processes. In practice, the commitments in the election manifesto of a political party have not been regarded as binding, politically or legally, on an incoming government. Our established constitutional processes have not included referendums that are not legally binding but are treated as binding by a government.
The problem of direct democracy has a history as old as rational discussion about the nature of government. It is a history that is still being made.
Aristotle saw direct democracy as having an inherent tendency to become another form of tyranny: a tyranny of the majority, as discussed by Edmund Burke and Thomas Jefferson and Alexis de Tocqueville and J.S. Mill. Cicero vigorously defended the unwritten constitution of the Roman Republic embodied in the subtle duality of the Senate and the People. Alcuin, the eighth-century proto-Yorkshireman who acted as an adviser to the emperor Charlemagne, told him: ‘Don’t listen to those who keep saying that the voice of the people is the voice of God. The noise of the crowd is always close to madness.’
Embryonic English parliamentarianism in the thirteenth century was an attempt to regulate the relationship between the monarch and the people who paid for the king’s government. It was a system of reciprocity. Thomas Smith, one of Queen Elizabeth I’s Secretaries of State, said in 1583: ‘And the consent of Parliament is taken to be every man’s consent.’ We elect the members of the House of Commons. The laws that Parliament makes bind us.
We may hear an echo of this in Edmund Burke’s rather unwise speech to the electors of his Bristol constituency as their new MP (1774), telling them that he was their representative not their delegate. He would not take instructions from them. He would use his own judgment. He was not re-elected. The British parliament is not merely an ‘assembly’, a term used in the constitutions of some other countries. It is a legally constituted corporate organ of the constitution, alongside the government and the courts, all three of which are manifestations of a three-in-one monarchy set in an immensely complicated relationship of interacting powers.
The prolonged seventeenth-century constitutional confrontation of king, parliament and the courts established the Rule of Law as the ultimate principle of British constitutionalism and, in due course, of liberal democracy in general. The Instrument of Government (1653) of Cromwell’s Commonwealth placed ‘supreme legislative authority in the Lord Protector (Cromwell) and the people assembled in Parliament’, subject to explicit and legally binding checks and balances.
Our only, and very temporary, written constitution would leave the British constitution essentially unchanged after the restoration of the monarchy in 1660. But it would be a model for written constitutions in many other countries.
In the eighteenth century, all across Europe, a new social phenomenon became a new political phenomenon, and eventually a new constitutional phenomenon. Public opinion. The business of government would now be the subject of everyday politics. In salons and coffee-houses and cafes and clubs and newspapers, the people would have their own say. Liberal democracy is a system for reconciling the conflicting ideas and interests of the citizens through the struggle of politics, and reconciling private interest with public interest through government and law.
Direct democracy, if it imposes the will of a majority on government and law, ignoring the will of the minority, is tyranny by another name. The tyranny is also a tragedy if, as seems to be beyond doubt in the case of Brexit, a foreign government and foreign money assisted the referendum campaign that was so narrowly successful.
The US Constitution of 1787 presented ‘We, the People of the United States’ as the constituting power of the Constitution. But that was the limit of their function. The Founding Fathers, mostly landowners, merchants and lawyers, constructed a constitutional system which is as far away from direct democracy as possible, having had some experience of such a thing in the state of Massachusetts. The President was to be part of one of the three organs of the constitution, with none of the mystical status of a British monarch.
For a while it seemed possible that the French Revolution might cause fundamental changes in the British constitution. The revolutionary constitutional documents placed ultimate power (sovereignty) in the nation and the people. All constitutionalism is the permutation of artificial entities, necessary fictions, forged in the human mind but liable to have massive real-world effects. Those revolutionary ideas would have a busy and troubled life in continental Europe in the nineteenth century and beyond.
Not in Britain, however. The reform of Parliament in 1832, extending the electorate of the House of Commons to parts of the middle classes, caused anguish in the minds of some otherwise enlightened commentators, not least J.S. Mill. But it saved Britain from the succession of rebellions and revolutions that plagued Continental Europe throughout the century. The present French constitution is the fifteenth constitution since 1791. The Duke of Wellington, as Prime Minister, said that we were conducting ‘revolution by due course of law’. Friedrich Engels said that the British parliament was ‘the most revolutionary body in Europe’.
Parliament’s heady days in the nineteenth century gave way to what two distinguished lawyers called ‘the new despotism’ (Lord Hewart, 1929) and ‘elective dictatorship’ (Lord Hailsham, 1976) in the twentieth century. The House of Commons had become the poodle of the government. Governing the massive complexity and energy of the modern state, with non-stop social reconstruction of every branch of society, had made necessary a vastly increased constitutional role for the executive.
In the meantime, the brand ‘democracy’ has been contaminated by its use as an instrument of totalitarianism (‘people’s democracies’), by its manipulation by tyrants through plebiscites and rigged elections, by the corruption of elected officials and government officials by pressure-groups and special interests and organised crime. The survival and well-being of liberal democracy may be a condition of the survival and well-being of humanity in the twenty-first century. As the inventor of liberal democracy, Britain has a special responsibility to protect it from insidious erosion within Britain itself.
It is interesting that the Brexit process, which might be seen as a deliberate violation of the centuries-long role of Parliament as the place where the voice of the people makes itself heard and takes legal effect, seems to have given a new lease of life to the House of Commons as the ultimate arbiter of a major and much disputed potential change in British constitutionalism, a change that could put at risk the constitutional unity of the United Kingdom, and would set dramatically different conditions for Britain’s participation in an international constitutional order which is itself living perilously close to the edge of chaos.
‘No monarch, however, absolute, can concentrate in his own hands all the influences of society, and vanquish all resistance, as a majority, invested with the power of making and executing the laws, can do.’ Alexis de Tocqueville, Democracy in America (1835).
Philip Allott is Professor Emeritus of International Public Law at Cambridge University. His most recent book is Eutopia. New Philosophy and New Law for a Troubled World, first published in 2016 to mark the 500th anniversary of the publication of Thomas More’s Utopia.
(Suggested citation: P. Allott, ‘The Problem of Direct Democracy: Brexit and the Tyranny of the Majority’, U.K. Const. L. Blog (10th Jan. 2019) (available at https://ukconstitutionallaw.org/))