This is Not the People’s Government or the Democratic Will of the People

Yossi Nehushtan &

Ash Murphy

University of Keele & University of Chester

Editors Note: This post will be accompanied by a response from Professor Stanley Winer (Carleton University) in early May.

Despite the rhetoric from the Prime Minister’s office following the 2019 UK General Election, the appointed Government has no democratic legitimacy generally, especially regarding the decisions to leave the EU without having a second referendum and to make far-reaching changes to the UK constitution.

This lack of democratic legitimacy stems from the fact that non-proportional voting systems, such as winner-takes-all or ‘first pass the post’ (FPP), completely fail to reflect the majority will. For states like the USA and UK that operate these voting systems, there is a certain amount of irony given their stance on the promotion of democracy globally.

In non-proportional voting systems, there is normally no correlation between the percentage of votes a political party gets and the number of seats in parliament or congress to which the same party is entitled – and smaller parties are systematically adversely affected. Non-proportional voting systems often result in one political party (or candidate) winning the election without securing the majority of votes.

It is surprising that these systems are still perceived as acceptable and indeed democratically legitimate, and that states applying such methods perceive themselves as democracies.

Democracy is a complex concept that entails various requirements, but one necessary condition for a democracy to exist is that its voting system will reflect the majority will in a meaningful way – or at least will not completely fail to reflect it. Even if a non-proportional voting system is accepted by the public as ‘the rules of the game’, that alone does not make it democratically legitimate. 

In the UK, the FPP voting system provides certainty and stability; it allows the winner to quickly form a government; it enables direct connection between Members of Parliament and their constituencies; and it normally prevents extremists from gaining excessive political power.

But these advantages do not make the FPP system democratic in any way, as it completely and consistently fails to reflect the majority will. It is not just ‘democratically flawed’ or has ‘democratic deficits’. It is plainly non-democratic. Much like an enlightened dictatorship that may have its advantages – but cannot be perceived as democratically legitimate in any meaningful way – the FPP system is convenient but not democratic.

Non-proportional voting systems are quite common in modern democracies – and they constantly distort the will of the majority. To take a few examples: in Italy, after the 2008 election, Berlusconi’s coalition won 47% of the people’s votes but 54% of seats in both Houses of Parliament. In France, after the 2007 election, Nicolas Sarkozy’s party won 39% of the people’s votes but 54% of seats in parliament. In Canada, in the 2011 election, the Conservative party won 40% of the people’s votes but 54% of seats in Parliament. By contrast, in 2015, it was the Liberal party that won 39.47% of votes but 54% of seats in Parliament.

In the USA, in the 2000 presidential elections, Al Gore won more than 51 million votes but lost the presidency to George Bush who won less than 50.5 million votes (with Ralph Nader winning almost 3 million votes—most of which would have likely been given to Gore had Nader not run for the presidency). In the 2016 presidential election, Hilary Clinton won more than 65 million votes but lost the presidency to Donald Trump who won less than 63 million votes.

In the UK, the FPP voting system allows one political party to gain more than 50% of seats in Parliament even when the party gets less than 50% of the votes. That has been the case in the UK in almost all general elections during the last 100 years. In other words, a single political party may gain almost ultimate control on the executive and legislative branches, while being opposed by the majority of voters.

In the 2019 election, the Conservatives won 56% of seats in Parliament while getting only 43.6% of the votes. Rival political parties (Labour, SNP, Liberal-Democrats, Plaid Cymru and the Green party) got a combined 50.9% of the votes. The Conservatives and their natural allies (the Brexit party and the DUP) got only 46.4% of the votes between them. Opposition parties got around one million votes more than the Conservative party – yet they lost the election.

This means that the current UK administration is in fact a minority Government, and certainly not ‘the people’s Government’. What we now have in the UK is an institutionalised Orwellian politics where the Prime Minister who is supported by the minority of the public gains absolute political power and is crowned by the non-critical media as the champion who won the heart of ‘the people’, while the politicians who are supported by the majority of the public become the powerless opposition required to learn from their mistakes and apologise for their defeat.  

It may be argued, as a response, that as long as the FPP voting system is the agreed system in the UK and as long as most players (most political parties and their voters) agree to play according to these ‘rules of the game’– the results of that voting system enjoy democratic legitimacy. This argument is, however, misguided as we should not to equate public consent with democratic legitimacy. A voting system is democratically legitimate if its results reflect the majority will. Public consent to a decision-making process that systematically fails to reflect the majority will cannot accord any democratic legitimacy to such a process.

One specific implication of the lack of democratic legitimacy argument concerns Brexit. The 2016 referendum was a glitch in public opinion and its result followed a campaign full of lies and half-truths. Since 2016, a constant majority of the public has preferred to remain in the EU – and that is still the case now. The 2019 election saw the majority of voters voting for pro-remain or pro-second-referendum parties. Brexit won the election – but lost the majority of the people. At the very least, nothing in the 2019 election’s results gives any democratic legitimacy to any Brexit deal without a second referendum that will offer remain as the alternative.

The Conservatives turned the election into a referendum on Brexit, with ‘get Brexit done’ being their only policy openly advertised. In that referendum they lost, getting only 46.4% of votes. Yet the distorted, unfair, almost arbitrary and certainly non-democratic voting system in the UK – made them the winners of the election-referendum.

There are other disturbing implications of this victory that will shape the future of the UK’s Constitution. Buried deep in the Conservative manifesto and masked by ambiguity are reform proposals that intend to facilitate ‘effective government’. Administrative law, the Human Rights Act 1998 and judicial review are all mentioned, insidiously targeting those aspects of democracy that have plagued the totalitarian nature that is the modern-day Conservative party. The independence of the judiciary also seems at stake with plans to introduce a political appointment process for top judges, eroding the separation of powers principle. These mechanisms are pillars of democracy and yet they are under serious threat because of the FPP voting system that has now handed the Conservative party a carte blanche parliament.

Worse still, the façade of the Conservative campaign was masked by deception and continual pummelling of the British people with the slogan ‘get Brexit done’. None of these constitutional reform proposals were front and centre, creating the reality that they were not democratically chosen by the British electorate, but will nonetheless, likely, be forced upon the majority of the electorate that explicitly rejected the Conservatives. Those that did not reject the Conservatives may also recoil at these reforms as they become more visible.

The FPP system will surely be solidified by the Johnson’s Government and well before the UK returns to the polls for another election. This undemocratic process will be reinforced and usher in yet more erosion of those structures that make democracy work on a day to day basis.

How should the majority respond to that? This is not the time for healing, setting aside disputes and aspiring for a ideologically compromised unity. This is the time to constantly remind the new Government that it is a minority Government. This is the time to use every legal and political tool to prevent this minority Government from carrying out its plans if they directly contradict the core views of the majority. That is the only way to reinstate some semblance of democracy into this Orwellian nightmare.

Yossi Nehushtan is Professor of Law and Philosophy at the University of Keele. Ash Murphy is a Lecturer at the University of Chester.

Suggested citation: Yossi Nehushtan and Ash Murphy, ‘This is Not the People’s Government or the Democratic Will of the People’ IACL-IADC Blog (28 April 2020) https://blog-iacl-aidc.org/2020-posts/2020/4/28/this-is-not-the-peoples-government-or-the-democratic-will-of-the-people