Brexit vs Federalism

Every day seems to bring a new disaster for May and the Conservatives, but perhaps that should not be surprising. The Brexit vote was won by a slim margin and the Brexiters themselves seem to have been woefully unprepared victory, and they have apparently remained just as unprepared to this day. I had been meaning to write on this for a long time now and was initially worried that the relevance of this piece would decline over time, and yet Brexit has remained (see what I did there?) fixed in the headlines thanks to its many twists, turns, and setbacks. Mostly setbacks. The most recent setback came when a slew of prominent MPs, most notably David Davis and Boris Johnson, resigned their posts following May’s Chequer’s agreement — an agreement that leaned heavily towards a ‘soft Brexit’, being one which sees Britain retain some of its political and economic ties with the European Union (EU). As for the EU, it has grown increasingly impatient with Britain’s antics, doing nothing to hide their frustration that a state would stage a vote to leave without preparing any plans for what would happen if that vote succeeded (can you imagine if Scotland had done this following a successful 2014 Independence Referendum?). Then of course there are also Trump’s incendiary and insulting comments towards May and her government, which should barely register as what else would Trump do but be incendiary and insulting? What a mess this has all become.

So how did it all come to this? Well it seems the answers to that is simply ineptitude on the part of the Conservative government in Westminster, so perhaps a better question is why did it come to this? I would argue that the short answer to this question is that it was inevitable.

So why was it inevitable? Well, as I mentioned before, the Brexit side won on the slimmest majority, a mere 52% of the vote. Such a majority is too small to allow something like Brexit to occur smoothly as the frustrated 48% who voted to remain represent a large and exploitable political resource for politicians, not to mention the businesses with vested interests in remain. However, we live in a democracy and so the majority have spoken, no? Should that not mean that Brexit must happen? Perhaps, but such an adherence to this particular reading of democracy is simply to embrace the tyranny of the majority and all the issues that come with that — issues such as whether a minority group’s voice should be ignored simply because it is a minority — though at the same time we need to balance this by keeping in mind that placing a high threshold (say two thirds) for a referendum to succeed would both be unfair and arbitrary. Moreover, and perhaps more importantly but I will get to that in a bit, the Brexit only enjoyed majority support in England and Wales, while it was rejected in both Northern Ireland and (in particular) in Scotland. Now these are all problems with referendums in generally, along with other major problems such as how they reduce complex issues to a binary choice or how it requires non-expert citizens to decide on issues they have no expertise in, and so that should be taken in to account. A similar referendum occurring virtually anywhere else in the world would certainly run in to the same problems as they are inherent with direct democracy. Of course, this does not mean that referendums cannot be ‘saved’ from the demagoguery, bipolarity, and tyranny of the majority. However, fixing this issue with referendums in the UK, I would argue, is contingent upon fixing the other big issue in the UK: that it is a unitary state.

Now this is something I do not understand myself, speaking as something of an outsider to the UK system having grown up in Canada, but why precisely has the UK remained a unitary state? I appreciate that there are historic reasons for this and that we have certainly seen devolution in recent years, but nothing to the extent that there ought to be. In fact, I will go as far as saying that the UK ought to be a federal state. Such a thought should not be so strange of course, as the UK’s constitution, despite being unwritten as it is, sets aside specific obligations the state owes to and special rights for the four nations that make it up. In fact, those four nations are so important that if you were to look at the £1 coin you will see the four symbols for each nation: a rose for England, a leek for Wales, a thistle for Scotland, and a shamrock for Northern Ireland. Arguments for devolution follow this same logic, a logic that I believe is correct, and hinge on notions rights to liberty held communal by groups of people and of self-determination for nations (both self-determination and nation are complex concepts that I will likely unpack here in the future, but for now let us content ourselves with the understanding that self-determination means the right for communities to decide their own political fates and nations being a named human community having a shared history and common culture). To imagine a federal UK made up of these four constituent parts seems, at least to me, only natural and a rather simple continuation of the historical process towards devolution that we have already been seeing.

I have heard arguments against this that say that large metropolitan areas, like London or Manchester, are larger than these nations (the London metro area and its approximately 10 million people certainly outnumber Wales, Scotland, and Northern Ireland which have populations of around 3 million, 5 million, and 2 million respectively) and therefore giving special constitutional rights to the nations and not to these metro areas is senseless. However, even if we ignore the observation that such a line of thinking leads either to infinite regionalism or none at all, we can rebut such an argument with the simple fact that it ignores the historical importance and legal status of the four nations. Indeed, the United Kingdom is, as is apparent in its name, a United kingdom made up of specific constituent parts, those parts portrayed in its aforementioned currency and in its flag (the Union Jack is a composite of the St George, St Andrew, and St Patrick crosses). More than this, the four nations are ascribed a significance in UK law that London, Manchester, nor any other part has. The UK, arguably by its definition, is made up of England, Scotland, Wales, and Northern Ireland (this is why Scotland’s potential departure in 2014 was so damaging a notion to the UK as a whole, as it would effectively mean an end to the United Kingdom’s very unity). Federalising the UK, that is granting devolved powers to the four nations that are comparable to those held by the provinces of Canada or the states of the US, seems only naturally to me.

So how could a federal UK avoid the problems of the Brexit referendum? Well, the devolution of powers to the four nations ought to also come with certain special democratic rights for those nations that would allow them to better exercise their independent political wills. These special democratic rights allow the nations to voice their wills within the context of the greater state while ensuring that they are not drowned out by the voices of larger nations. To illustrate my point I want to look at Canada. Itself a federal state made up of 10 provinces (and 3 territories, though they do not enjoy the same legal or political powers as the provinces — they perhaps would be more comparable to the Isle of Mann or Gibraltar in the UK context — and so I will not be talking about them here) and shares a political and legal history with the UK, so the comparisons should be relatively simple. So what would happen if the Brexit referendum, or at least something like it, were to occur in Canada? Well, and this point could be debated though it does not detract from my argument, I would argue that such a referendum of such importance as Brexit would either require a constitutional amendment or at least by of such importance as to be equivalent to a constitutional amendment. Nonetheless, if we assume (and I believe we should) that a ‘Canadian Brexit’ would require a constitutional amendment then we can also assume that it would have to pass through the amendment formula. Set out by section 38 of the Canadian constitution and also known as the 750 formula, this procedure requires that 7 provinces, representing at least 50% of the population of all the provinces, approve any amendment. This means that smaller provinces, such as Prince Edward Island or Newfoundland, have some recourse against the will of the larger provinces, such as Ontario and Quebec. In practice this type of formula has its complications, as we saw during the referendums surrounding the Meech Lake Accord, but in its ideal form this means that 50%+1 support for an amendment is enough for that amendment to pass as long as that 50%+1 support is more or less evenly spread throughout all the constituent parts of the state. The majority is heard while the tyranny of the majority is denied. In the UK context, this means that England, with is disproportionately large populations compared to the other nations, could not simply decide the fate of the whole of the UK. In the context of Brexit, this would have meant failure for the Brexit side in the referendum as two of the four nations did not support Brexit.

Now perhaps at this point you are thinking that I am making this argument solely because I oppose Brexit, however my distaste for Brexit is not what motivates me here. Rather, I fundamentally believe that such a proposition better protects the democratic rights of people: allowing small communities to prosper and have their voices heard while at the same time not allowing an unfair over-representation of those same communities. Such a formula could be expanded beyond state-wide referendums too, and I do feel it could go a long way to legitimizing any referendum and help solve many of the issues which I highlighted above. For example, I believe applying the formula (or at least something derived from the 750 formula) to Quebec should a future referendum occur would both legitimize the results as well as break the deadlock that continues to this day over whether 50%+1 is enough for Quebec to separate or whether a super-majority, usually understood as being 66%, is required. There are obvious complications that can occur, such as if a side reached one but not both of these thresholds, but these can be solved through legal mechanisms, such as triggering a second referendum after a predetermined period of time should the problem I just mentioned occur. Moreover, the benefits of such a system are numerous and tangible.

It is of course too late for the UK. The Brexit referendum is in the past and Brexit, in some shape, is likely to occur. Nonetheless, the discord that has followed has been entirely preventable and I believe a lot of it could have been prevented if a more representative system was used to conduct the referendum. This is the lesson I believe we should learn from this, and certainly the lesson that the UK should learn as ignoring its constituent parts could have potentially catastrophic results for its future (that is if the SNPs separatist agitations are to be believed, and I think they are). It is not too late for the UK to perhaps learn this lesson as well and change embrace devolution more wholeheartedly than it has until this point. However, it may not be too late but time is certainly short.