Dr Alan Greene (Durham Law School, Durham University)
‘The people have spoken, the bastards.’ – Dick Tuck
Referendums are blunt tools, framing often complex issues into deceptively simple binary choices. A referendum on membership of the EU was always going to struggle to adequately cover the complexities raised by this question in a constructive form. This post will briefly discuss two separate but related issues raised by the divisive Brexit referendum campaign. Firstly, I will draw upon Irish experiences of referendums as an illustrative example of how the UK could improve future referendums, highlighting key procedural problems with Brexit. Secondly, I will discuss whether the referendum itself is a flawed procedural concept or whether Brexit points to something deeper that is wrong with British parliamentary democracy.
EU Referendums: Lessons from Ireland
Ireland, with a similarly structured Westminster-style parliamentary democracy to the UK’s, is no stranger to referendums. Since its constitution entered into force in 1937, Ireland has had 32 referendums to amend it. Some of these have been on trivial matters like changing the age at which a person is eligible to run for the largely ceremonial office of the Presidency; others have been on deeply divisive emotive issues in the Irish political psyche like abortion.
Ireland also has experience of referendums on the EU. As a result of a 1987 Supreme Court judgment in Crotty v An Taoiseach, any change to an EU treaty that is deemed to affect Irish sovereignty or which may free the state ‘from the restraints of the constitution’ must be put to a referendum. There are a number of key differences, however, between Irish referendums on the EU and Brexit. The principal difference being that Irish referendums on the EU are generally on treaty changes. Brexit was, however, not on any specific treaty change but was on the EU as a whole. This broadened the debate significantly, resulting in a poisonous, vitriolic contest that failed to cover many of the key issues regarding British membership of the EU. Instead, the electorate were treated to images of fleeing refugees in order to, at best, stoke fears over ‘uncontrolled’ immigration, or at worst, tap into latent xenophobic sentiments. Following Brexit, recorded hate crimes have increased by 42% in England and Wales.
At other times, the debate sounded more like a general election campaign, with promises to increase the budget of the NHS after the UK leaves the EU. While concerns regarding the democratic deficit of the EU were, at times, to the fore of the debate, at no stage was there any major attempt in the public debate to explain the various constitutional institutions of the EU or to really engage with concepts of state sovereignty and democracy or whether a tension exists between the two. Sovereignty was reduced to ‘taking back control’ and democracy amounted to wresting power from the ‘unelected Eurocrats’.
Irish referendums on the EU can sound like general elections too, with ‘vote yes to Lisbon for jobs’ a key refrain in the second Lisbon Treaty referendum. That stated, another key distinction between the Irish experience of referendums and Brexit was the complete lack of independent and impartial information available which could have helped to focus the debate somewhat. Following an Irish Supreme Court judgment in McKenna v An Taoiseach, which forbade the Irish government from spending public funds campaigning for a referendum result, an independent Referendum Commission was established that ‘explains the subject matter of referendum proposals, promotes public awareness of a referendum, and encourages the electorate to vote.’ For the Lisbon Treaty Referendum in 2009, the Referendum Commission published its explanation of the Treaty on a dedicated website, ran an advertising campaign in national media, and produced an information booklet on the Lisbon Treaty that was distributed to every voting household in the country.
Of course, misinformation nevertheless abounds in Irish referendum campaigns too and it is incumbent upon the respective sides to effectively refute the opposition’s points. Nevertheless, an independent, trusted referendum commission may have improved the quality of debate in the UK. Issues like Minister of State Penny Mordaunt’s incorrect assertions that the UK does not a veto over new member states joining the EU could have been easily addressed. Other issues may be more complex, meaning that drawing up neutral information would have been no easy task. The breadth of the question asked and the lack of neutral information for the electorate ensured that Brexit was the worst example of the use of a referendum. This raises another important point that should not be overlooked: the people may have spoken, but who asked them the question in the first instance?
Reclaiming Parliamentary Democracy?
Criticisms of referendums often fail to distinguish between different mechanisms of triggering referendums. In systems where the legislature has the power to trigger a referendum, a deliberative exercise takes place – or should take place – within parliament. Ideally, the legislature should not just approve of the wording of the question that is put to the people but also, by putting the vote to the people, the majority of parliamentarians are in favour of the referendum passing. What is notable about all three referendums proposed during David Cameron’s term as Prime Minister is that he, and a majority of MPs, actually opposed the motion put to the people. On two of these referendums – Brexit and the 2011 referendum on the Alternative Voting system – Cabinet was divided on the issue. Ireland’s sole experience of a referendum where the government was divided on the question put to the people was the infamous Eighth Amendment of the Constitution which enshrined the right to life of the unborn into the Irish Constitution. This amendment was put to the people despite objections from the then Attorney General as to the legal consequences of the Amendment.
We must therefore not sever the Brexit referendum from the parliamentary processes that triggered it in the first instance. Brexit should not be superficially read as an indictment of referendums and direct democracy. Instead, it points to something deeper that is wrong with parliamentary democracy in the UK. Brexit was not a referendum on carefully deliberated constitutional change. It was instead an internal Conservative Party dispute converted into a constitutional question by David Cameron in a calculated gamble to stabilise his party and stave off the electoral threat posed by UKIP. And it worked. The Conservatives were returned to power, this time with an overall majority, despite receiving only 36.9% of the popular vote. UKIP, who received 12.6% of the vote, won just one seat.
However, the marginal political voices which the first past the post system (FPTP) supresses were able to come to the fore in the referendum. The entire UK was transformed into a ‘marginal seat’ meaning that for the first time in many parts of the UK, a genuine change could be effected through the ballot box. Indeed, there is perhaps a link between voter apathy caused by FPTP and the anti-establishment vote expressed in Brexit although it is far beyond the scope of this brief post to corroborate this.
With the referendum now lost, some ‘Remainers’ have turned their attention to Parliament as a mechanism of preventing Brexit. Parliament can, of course, block Brexit if it so wishes. The referendum was merely advisory and in no way binding. Debate abounds in UK public law circles regarding whether the Prime Minister can trigger Article 50 on her own, or whether parliamentary approval is needed first. There are a number of excellent arguments on competing perspectives on this issue that I do not wish to add to here. My focus is not whether Parliament can block Brexit; Rather I wish to question whether it should.
Political constitutionalists have long fetishized the democratic credentials of the British parliament, conversely criticising models of judicial supremacy as incompatible with the republican conception of freedom from non-domination. Political constitutionalists also laud parliaments over courts and direct democracy mechanisms like referendums as superior institutions for debate, compromise and policy formulation. Parliaments therefore are seen as simultaneously a democratically legitimate institution and a fortress holding back the tyranny of the majority. None of this, however, was evident during either the debate regarding the decision to put the UK’s membership of the EU to a referendum or during the referendum debate itself.
Although the referendum is only advisory, to disregard the preference of 52% of the voters on a turnout of 72% in the name of ‘parliamentary sovereignty’ is intensely problematic. The principle normative justification for parliamentary sovereignty is that it is democratically legitimate. At the same time, we must also be careful to not simply refuse to question the outcome of a referendum by boiling it down to the cliché that ‘the people have spoken’. However, ignoring the referendum result will only reinforce this idea of voicelessness and disaffection that many in the UK feel. This in turn could be more damaging to the UK constitutional order than Brexit itself.
A second referendum on the same question is also problematic. Ireland voted twice on the Lisbon Treaty; however, Ireland had secured assurances and changes to the proposed treaty before the second referendum; the most notable of these being the retention of a commissioner by every EU member state. The question the second time around therefore was different to that answered the first time. The same would not be possible for the UK in this instance. A second referendum could, however, be legitimate once the outcome of the Article 50 withdrawal negotiations is known. In such an instance the question would be different: remain a part of the EU, or leave the EU subject to the agreement struck.
Conclusions: What role for Referendums in the UK?
Referendums can have a place in a modern parliamentary democracy. In Ireland, the referendum process can act as a safety valve that relieves political pressure over a specific constitutional dispute. This can avoid the over-politicisation of the Supreme Court as seen in the US where the only realistic way of changing the meaning of the constitution is to appoint Supreme Court judges who are similarly ideologically minded to interpret it differently.
In a system of parliamentary supremacy like the UK, however, a referendum cannot be used in this regard. Instead, a referendum can be used to add an additional layer of democratic legitimacy to a specific constitutional moment. This should only be done, however, if the question is one correctly formulated after careful deliberation and, if possible, that it is asked in the hope of procuring a positive answer. In this regard, it should be noted that while the Westminster government was opposed to Scottish independence, the Scottish government in Holyrood was in favour of it.
A second referendum on the terms of Brexit would be a much more concrete question to put to the people rather than simply a second referendum to overturn Brexit. In addition, this would be more politically legitimate than Parliament ignoring the Brexit referendum completely. Remainers therefore should focus their efforts on a referendum on the terms of Brexit or, if this is not possible, ensuring the best possible deal, both for the UK and the EU. These two positions need not necessarily be diametrically opposed.
‘Brexit: Democracy, Markets and the Regions’, DELI/LGJD Joint Insta-Symposium