Photo: Chris McAndrew/UKparliament

Brexit raises profound constitutional questions. Age-old arguments about our political system have resurfaced. What is parliament for? How should we accommodate referendums in a representative democracy? Should MPs listen more to voters or their own consciences?

Legal and constitutional expert Igor Judge has some firm opinions. From 2008-2013 he was Lord Chief Justice and Head of the Judiciary of England and Wales, at the top of the legal hierarchy along with the President of the Supreme Court. Prior to that he was the first President of the Queen’s Bench Division of the High Court.

Now 77, he sits in the Lords as a cross bencher. We met in Westminster in mid-January, with parliament in meltdown and Britain facing its greatest political challenge since the war. How did we get here? What will be the effects on our constitution?

“We are now living with the consequences of two different arrangements for a democracy to work, crashing into each other,” said Judge. “The resolution is not provided for in our constitution, because our constitution is not based on referenda.”

Judge is a careful talker, pausing to consider each point and clarify his arguments. When pondering a question he sometimes takes off his glasses. The central difficulty, in his view, is that Britain is a parliamentary democracy but in 2016 became a direct one. The two systems do not fit well together and the first is now struggling to accommodate the second. “In the Commons there seems to be a majority in favour of Remaining, and there’s a clash with the result of the referendum.” MPs are struggling to implement an outcome they fundamentally disagree with.

Arguably referendums are never a good idea. For Judge, a plebiscite makes sense “in relation to the possible independence of the constituent parts of the United Kingdom,” Scotland being the obvious example. On other issues they are best avoided, even to settle Brexit, where campaigners for a second ballot are gaining traction.

“I don’t think it would help,” Judge said, dismissing the “people’s vote” plan. “I mean, let’s say the result was the same, it wouldn’t stop the people who think we should remain, going on fighting to remain. Let’s say the result is different, it won’t stop the people who want to leave saying we must leave and let’s have another referendum. So it may provide a temporary answer…

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