Ronan McCrea, Professor of Constitutional and European Law, UCL, illustrates how the choke points in the British constitutional system led a Conservative minority to sideline majority preferences over the form of Brexit.
A particularly striking outcome of the Brexit process is that the UK’s constitutional structures ended up delivering a form of Brexit that is significantly more extreme than most of the public wanted.
This is a major triumph for hardline Brexiteers who turned what was a fringe position into the basis of the UK’s future relationship with the EU.
But how did this happen? In a representative democracy, we expect that, usually, public preferences will be transmitted via their representatives and will form the basis of public policy. Yet, in the case of Brexit, this did not happen.
This strange outcome makes it worth asking: what were the choke points in the British constitutional system that blocked the majority’s preferences from forming public policy on one of the most important political issues in decades?
One obvious candidate is the electoral system. In the 2019 election, parties committed either to cancelling Brexit or to a second referendum won 51.5% but Johnson’s Conservatives ended up with 56% of the seats. However, the failure of this majority to win out is not surprising. This 51.5% was split between a number of parties and the British electoral system, like many systems, often permits a cohesive minority to win out over a fractured majority. For example, even in 1983, the combined Labour-Alliance vote was greater than the number who voted for Margaret Thatcher’s Tories.
Another candidate is the undefined role of referendums in the UK’s uncodified constitutional system. A constitution organised around parliamentary sovereignty and uncodified conventions struggled to give specific form to a vague instruction to leave the EU that emerged from the referendum. Indeed, discussion of the legal form that Brexit would take properly only after the referendum had taken place. This opened the door for hard-line Brexiteers to claim that forms of Brexit were insufficiently radical were a betrayal of the referendum majority.
However, there was no reason that this claim was destined for success. Given the low level of public support for a hard Brexit, the electoral system ought to have provided a counter to this in the form of pressure from voters on MPs to moderate the form of Brexit pursued by the government.
Perhaps the main factor at work was a development whose constitutional significance has gone largely unnoticed, namely the increased power of party members in the election of party leaders.
In recent decades, both Labour and the Conservatives moved to allow members the final say in choosing a leader. In the case of the Conservative Party, MPs select two candidates to go before the membership for election. The Tory party membership is small, about 120,000 and highly unrepresentative. Tory members are disproportionately old and hold very hardline views on Brexit.
This was key in driving the radicalisation of the government’s Brexit policy. Any candidate with Brexit views in line with those of the general public was unlikely to be elected as Conservative leader. This meant all potential Tory leaders had to adopt hard-line approaches to Brexit, notwithstanding that this was a position with minority support in the wider population.
Furthermore, because of the dominant role of parties in the UK system, the new leader would, pending a general election, inevitably become Prime Minister. This meant that Tory MPs were aware that embracing moderate Brexit policies would meaning being side-lined once the membership had made their choice.
With Labour saddled by their members with a leader not to the taste of the average voter, the cohesive pro-hard-Brexit Tory minority won the subsequent election.
It is true that given the danger of ‘tyranny of the majority’, sometimes we may not want the views of the majority to determine policy. For example, MPs’ opposition to the death penalty is not supported by most voters. Indeed, EU integration has itself been pushed more by political elites than ordinary voters.
However, the current situation provides the worst of both worlds. By handing such power to party members we get the downside of populist politics without the upside of mass participation. In the case of Brexit, the role of party members in the election of the Conservative leader meant that a small, unrepresentative group ended up heavily influencing the outcome of one of the biggest questions faced by the UK in half a century.
This outcome provides a lesson. It may sound very democratic and anti-elitist to allow ordinary party members rather than MPs to elect party leaders – but actually, the opposite is the case. MPs face their constituents at the polls and therefore, in choosing a leader, will be attuned to the views of the wide public in a way that party members are not.
As the late Irish political scientist Peter Mair pointed out, political parties have become increasingly cut off from wider society. However, they remain the dominant actors in the British system. Empowering ordinary members to elect party leaders represented and huge, but largely unnoticed constitutional change. It has undermined Parliament, as, in effect, it takes the ultimate decision on who is to be Prime Minister out of the hands of MPs and places it in the hands of party members.
American politics has been damaged by the polarising influence of partisan party voters in primary contests. Donald Trump could never have won the Republican party nomination in 2016 if members of Congress had the predominant say. The empowering of party members poses a similar polarising danger to British politics as it means that, going forward, elected politicians will be beholden to a small, unrepresentative and highly partisan party members rather than to the wider public. At the very least, the fact that two elections and four years of intense political debate produced an outcome that a majority of the electorate would never have voted for should cause serious reflection about the democratic efficacy of the decision-making structures of the UK constitution.
Note: The views expressed in this post are those of the author, and not of the UCL European Institute, nor of UCL.