The UK is sleepwalking towards a truly dangerous constitutional crisis, in which we no longer agree on how we make democratic decisions or on what constitutes a valid referendum. Its roots lie in the way that we use referendums – and time is running short to fix this.
The referendum is now the most powerful instrument in our democracy. Yet we have developed no agreed rules on when, how or by whom this mighty weapon should be deployed. That makes it an object of political struggle, rather than a means through which disagreements are resolved
It is a basic principle of constitutional government that arguments are fought out within an agreed set of rules – and that no single protagonist, whether in London or Edinburgh, controls the rule-book. When the rules themselves are in dispute, the stability of the state is at risk.
Constitutional govt emerged as an antidote to political violence: as a way of “counting heads, instead of breaking them”. It depends on the existence of agreed mechanisms for change, that are not subject either to constant instability or to the control of a temporary majority.
On that principle, there must be a lawful, democratic route by which Scottish independence (or other changes) can be achieved, if a majority so wishes. The bar to holding such votes might be set quite high, but it must not be insurmountable or subject to permanent external veto
A scenario in which the only lawful route to independence is a referendum, which an English majority in London can unilaterally obstruct in perpetuity, risks driving the advocates of change outside the constitution altogether. That’s something any democracy should aim to avoid
At the same time, there needs to be a sense that these moments of decision carry weight; that they won’t simply be re-run whenever one side thinks it has a chance of winning. So we need an agreed process for deciding when referendums happen and how they are triggered.
As Matthew Parris recently argued, there’s a strong case for a Royal Commission on the use of referendums. When do they happen? How are they triggered? Who can vote? These are fundamental democratic questions, on which we’re nowhere near agreed answers.
Both sides are currently sceptical of that idea. The SNP tends to see it as a ruse, intended to kick the issue down the road. The UK government would rather “just say no” and milk the applause of the tabloid press for “standing up for Britain”. But both should think again.
For the SNP, a time-limited Commission, that included prominent supporters of independence, would keep the constitutional route alive while avoiding the risks of a disputed referendum – which include a Unionist boycott, punitive legal action, and the loss of moderate support.
Meanwhile, Tories should ask how they plan to keep Scottish nationalism within constitutional limits, if they block any constitutional route to change. Relying on an English majority in London, to overrule election results in Scotland, is not a sustainable basis for a Union of consent
So long as the referendum remains the *object* of political power struggles, rather than the means by which they are resolved, our democracy will be at risk. All parties have an interest in resolving that problem. They should act now, before the clock ticks down to midnight.