Brexit and the English Social Constitution

In this blog Professor Robert Thomas discusses why England voted to leave the EU and the questions Brexit poses for the constitution. 

In his magisterial history of England, Robert Tombs notes that, following the 2014 Scottish Referendum, there would surely be greater English self-consciousness and more debate about what kind of country England wanted to be. “Many recalled GK Chesterton’s ominous line: ‘But we are the people of England; and we have not spoken yet.’ No one had the faintest idea what they might say.” (The English and their History (2014), p.870).

Well, now we know. The English people have spoken and so unleashed the multi-headed uncontrollable beast that is Brexit. There has been a profound political shock to the political system. We are currently witnessing the deepest political crisis since the second world war. No-one really knows what is happening or what will happen and no-one is in control.

The leave vote was higher in England than in any other part of the UK. That vote clearly shows the political divide and faultlines in England. Well-off urban areas, the cosmopolitan cities – not just London and the parts of the south east, but also central Manchester, Liverpool, Leeds, Bristol, Norwich, Brighton, Oxford and Cambridge – voted remain. Less well-off urban areas and rural areas voted leave. The leave vote was comprised largely of the middle class, middle-aged/elderly and those who have been ‘left behind’. As Rob Ford puts it, those “left-behind” are: older, white, and socially conservative voters in more economically marginal neighbourhoods. These voters turned against the establishment and a political class they saw as dominated by socially liberal university graduates with values fundamentally opposed to theirs, on identity, Europe – and particularly immigration.

A major issue has been immigration, the perceived threat to local areas and employment for those of the left-behind who are unemployed or in low-paid, casual employment. But immigration is not everything. As Ford notes: “While immigration was the lightning rod, the divides the Brexit vote has revealed run deeper and broader than a single issue. They reflect deep-seated differences in outlook and values, hopes and prospects, between graduates and school leavers, globalised cosmopolitans and localised nationalists, the old and the young, London and the provinces.”

The point I want to highlight here is one that is all too often overlooked in our constitutional discourse and debate, namely, the complex and essential connection between the social and the constitutional. By the social I mean the social feelings and composition of the people. For instance, it would be futile to try to understand the enactment of the Great Reform Act 1832 without some understanding of the acute social problems caused by industrialisation and urbanisation and political unrest, e.g. the Peterloo massacre of 1819. Likewise, it is futile to try to understand the Brexit vote without concentrating hard upon the underlying social forces at work in the country.

Indeed, there was once a time in which constitutional lawyers took great pains to situate their exposition and discussion of constitutional rules and principles within a much wider discussion of the social context. This was always with an eye to the connections between constitutional developments and complex, changing social conditions. Think, for instance, of the early work by Ivor Jennings. The Law and the Constitution commences with a survey of social changes. Think also of the work of JAG Griffith who regarded law as a social science and held that it could learn much from sociology, economics and political science.

Much contemporary constitutional discussion now seems entirely devoid of social context. Hopefully, this forgotten tradition of constitutional thought has not been entirely extinguished, but merely lies dormant waiting to be resurrected back to life.

My basic point is this: at a very general, but profound level, the constitutional problems in Britain – especially England – reflect the increasingly deep social, economic, and political divisions that has been growing for many years and decades. These divisions are profound, deeply embedded, and unlikely to be easily resolvable. Further, these divisions are key drivers of constitutional change – most obviously Brexit, but they could also compel other wide-ranging constitutional developments.

These social and economic divisions have been caused by the following complex events and trends. The decimation of industrial employment since the 1980s, rising inequality, the collapse of social mobility, the profound cultural differences and aspirations between the haves and the have-nots, the housing crisis, unemployment rates, insecure, temporary and low-paid employment, zero-hours contracts, the MPs’ expenses scandal, the deep and endemic distrust of politicians, the unequal allocation of resources across England, the spectacular dominance of London as a magnet of investment and focus to the exclusion of many other areas of the country, the biases of the media, and tax evasion scandals. Add to this: the banking crisis, the fixing of LIBOR, unaccountable and corrupt corporate greed and exploitation, inefficient and wasteful government, metropolitan elites seemingly oblivious of the nature of the country outside London, crushing austerity, the intense failure of the “big society”, unaccountable government, and duplicitous politicians.

Add another topic of intense concern to the left-behind voters: mass immigration and its perceived negative effects upon education, housing, employment, wages, local communities, and local services – immigration that no-one was consulted on and was not consented to. Even well-meant reforms, such as English local government devolution designed to reverse years of excessive highly centralised governance, have promised too little and come far too late. This is a whole series of chronic and endemic failures that have impacted more upon those left-behind than any other social group.

Just consider education. Sir Michael Wilshaw, the out-going head of Ofsted, recently spoke out concerning the persistent and wide educational attainment gap for kids from less well-off backgrounds. In 2005, the attainment gap between those pupils in secondary schools having free school means and those without was 28 percentage points. It is still 28 percentage points. “Our failure to improve significantly the educational chances of the poor disfigures our school system. It scars our other achievements. It stands as a reproach to us all.” There is an increasing invisibility of underachieving poor pupils as they have progressed through schools, not just in urban areas but also in isolated rural and coastal communities. A majority of disadvantaged children consistently underachieve at school. There is not just a widening gap between the performance of schools in the North and those in the South – the poorest pupils have also been increasingly let down in some of the wealthiest parts of the country.

Warnings like this come and nothing much happens. Politics and government carries on as before. To misquote Bagehot, England has become a barely disguised Banana republic ruled by an oligarchy of global capital, London-based politicians, and the media. It is a place in which the well-to-do can preserve their position, status, wealth and authority whereas many others now seem to have been almost irretrievably left-behind.

Indeed, there have been so many warnings for so many years that inequality is fracturing society. In their compelling book The Spirit Level (2010), Wilkinson and Pickett argue that almost all aspects of life – from life expectancy to mental illness, violence to illiteracy – is affected not by how wealthy a society is, but how equal it is. Societies with a big gap between the haves and the have-nots are bad for everyone in them – including the well-off.

Every so often the pressure valve has blown – witness the 2011 riots – only for normal business to resume quickly. But this time the pressure building up under the surface has been too much. At some stage, this division had to erupt and so it has.

The referendum has been about much more than membership of the European Union. For many people, the EU referendum has been the only real opportunity in which they can directly vote without their views being mediating – and moulded – via the failed first-past-the post and the machinery of party politics (the 2011 referendum does not count).

People have gleefully taken the opportunity to flick up two fingers to authority, the political system, the status quo, and the establishment – not just on the issue of EU membership but on the much wider issue of the state of the country. And to hell with the consequences.

John Harris in his important series of reports and videos – “Anywhere but Westminster” – has captured the mood simply by simply speaking to people: ‘If you’ve got money, you vote in … if you haven’t got money, you vote out’. Our angry divided kingdom is made up of two nations. Deep resent has grown over years. Given the chance to vote, people have voted in protest.

I am acutely conscious that I am at risk of living in the protected bubble of the law school and university, but the other world is not too far away. Two minutes’ walk from the University of Manchester and it is a very different world.

I have worked in Manchester for the best part of 20 years. The city centre has been rejuvenated and benefited from an influx of money and investment. It voted remain. Contrast this with areas of Greater Manchester – Salford, Oldham, Rochdale, Bolton, Bury, Stockport, and Tameside. All of these areas are deprived. Salford and Oldham suffer from acute and chronic deprivation. All of these areas voted leave. There is a similar story across many parts of England.

Mike Carter recently walked from Liverpool to London speaking to people along the way about the referendum. The report of his journey needs to be read in full:

Stafford, Cannock, Wolverhampton. Different towns, same message: “There’s no decent work”; “the politicians don’t care about us”; “we’ve been forgotten”; “betrayed”; “there’s too many immigrants, and we can’t compete with the wages they’ll work for”. Nobody used the word humiliation, but that’s the sense I got.

The message from the left-behinds has been simple: ‘No one listens to us, no one cares.’ Something have got to change, but the political system does not enable this. “London is bad enough, but Brussels is even worse.” Many people living in places such as Stoke on Trent, Bradford, Sunderland, and many other similar places perceive that there is no-one in authority who really gives a damn about them – except to exploit and con them. Conservative ministers making policy decisions likely to damage people in non-Tory voting areas are unlikely to care about the impacts. Well, now, these people have spoken.

“Ok, Thomas, but what on earth does all this have to do with constitutional law?” My answer: everything.

Thinking about this from a constitutional perspective, it is abundantly clear that for decades, government and the political-constitutional system have failed a substantial part of the population. The top-down structures of government and politics have enabled those in authority to dictate to, speak down to, and order the governed about. For decades, metropolitan elites, the two main parties, and the establishment have dictated terms to the left-behinds. They have been told have they are to be governed and what limited and narrow policy choices they can choose between.

The wider constitutional implications seem clear: the acute, chronic failure of our governing institutions to listen to the views of those left-behind, their traditional approach of highly centralised, top-down governance, has almost entirely eroded the legitimacy of those institutions. Those left-behind have been denied an effective voice for so long. Perhaps economic failure and the forthcoming political, parliamentary, and governmental crisis will presage a genuine constitutional moment? And, coming from someone who is by nature a soft unionist, perhaps Scotland would be better independent after all – why not?

I don’t pretend to have the solutions to these wide-ranging and complex problems. It would be glib to launch into a discourse about democratic renewal or democratic experimentalism.

Perhaps there are no clear solutions and muddling through will forever carry the day? There are much-discussed reforms that could help – not least reform of the voting system, an elected second chamber – reforms which have, ironically, been kicked into the long grass by the prospects of parliamentary time being consumed for years by the Brexit project. However, it seems to me that the reforms required are inherently cultural – to make politics work better than it does now, to break the gaping disconnect between those who govern and the governed, to pop the Westminster bubble. Wider political reform is required, but it is likely to be taken over by events. Nonetheless, such events come with an ominous health warning: if the hopes and expectations raised by Brexit are dashed, then the ruinous problems we already have in our divided country could be multiplied once they are exploited by the unscrupulous.

Robert Thomas is a Professor of Public Law, publishes widely on administrative justice and is co-author of Elliot, M. and Thomas, R. ‘Public Law’ (OUP).