Why Brexit shouldn’t be the end of referendums
It is, I think, fair to say that Brexit is not going well. Some even think that it is a ‘complete and unmitigated mess’. No doubt at least in part for this reason, there has been a flurry of commentary arguing that such momentous a decision should not have been taken by way of referendum (for a summary of, as well as an argument against this narrative see here). This is a tempting conclusion. But I do not think it is right.
However, I want to argue that the Brexit vote in and of itself does not suggest it. I argue instead that entirely avoidable poor judgment in setting up, running, and implementing the referendum lead to the situation the UK now finds itself in. We should thus look to the specifics of the Brexit referendum to account for the problems it caused, not to the use of referendums in general.
The focus here is on three areas where risks were underestimated, and opportunities missed because or despite the flexible constitutional arrangements in the UK. These areas are the fact that primary legislation was needed to set up the vote, the question asked, and what I call the “will of the people”-fallacy concerning the implementation of the result. I will address them in turn.
Referendums as a Foreign Object and the Need for Legislation
Referendums are – in some ways at least – foreign to the UK constitution and thus only somewhat regulated. This has mainly been interpreted as problematic (see, for example, here). Problems identified include questions on the authority of the referendum result, the significant discretion on any Government’s part to use a referendum – including for party political reasons –, and the fact that referendums need to be introduced by legislation, which leaves room for new rules to be created for each case when expectations may be managed more easily if these were known beforehand. I want to focus here on the last element. While some standards for running referendums are regulated in Part VII of the Political Parties, Elections and Referendums Act 2000, many aspects are left to be determined by the legislation that is needed to set up a specific vote. There are good arguments in favour of setting out more detailed requirements and standards in advance and irrespective of particular referendums. However, the fact that the UK arrangements leave room for considerable flexibility also creates opportunities.
For example, the Political Parties, Elections and Referendums Act 2000 does not prevent Parliament from implementing a quorum on voter turnout or a qualified majority accounting for the (perceived) weight of a decision voters are being asked to make. It would even have been possible to extend the franchise to UK citizens living abroad for more than 15 years and nationals of other EU countries resident in the UK, or to reduce the voting age for the occasion. Some of these issues were raised during the debate in Parliament of the European Union Referendum Bill. However, in passing the European Union Referendum Act 2015 Parliament chose not to include them. Arguably, doing so may have increased the deliberative merits of the referendum because it would have meant including individuals whose interests were most obviously at stake. To put it differently, the referendum might have been (or at least perceived to be) more legitimate and thus any result may have proved to be more acceptable in solving the underlying conflict.
How (Not) to Ask a Question
Because Part VII of the Political Parties, Elections and Referendums Act 2000 only contains minimal rules on how to conduct referendums, the question to be put to voters needs to be determined separately. In the case of the Brexit vote, this was done after extensive consultation and following advice received from the Electoral Commission in Section 1(4) and (5) of the European Union Referendum Act 2015. The question was: ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’ and the alternative answers to appear on the ballot paper were ‘Remain a member of the European Union’ and ‘Leave the European Union’. This is perfectly intelligible. However, the respective preferred outcomes were very different in their knowability. Remain was relatively clearly defined as the status quo regarding the UK’s EU membership. Leave, on the other hand, could be understood to refer to a wide range of outcomes. For example, the UK could leave the EU, but join the EEA instead. Or the UK could seek a bespoke association agreement. This could range from an agreement to remain in the Single Market and the Customs Union to a very loose association or trade agreements as entered into by, say, Turkey or Canada. Or it could mean none of the above. In short, ‘Leave’ had the potential to mean all sorts of things to all sorts of people in ways ‘Remain’ did not.
Why is this a problem? In systems where referendums are used routinely to enact constitutional amendments, popular votes usually ratify a fully formulated proposal. Ireland and Switzerland are examples of this practice. The Brexit vote, on the other hand, concerned a decision of the highest constitutional significance but was not based on a fully drafted proposal. Instead of finalising change, the vote was used to trigger it. This is problematic precisely because of the issue of knowability raised above, and is arguably not an ideal use of referendums (for Leah Trueblood’s arguments to this effect see here and here).
Nevertheless, there was a way to use a referendum to initiate rather than finalise change that was not considered. Because of the flexibility addressed above, the UK could have relied on two votes rather than one. How so? It could have used the primary legislation to set up two referendums to begin with: one on whether the Government should explore options to leave the EU and another one to ratify any proposal that would have come out of this process (with or without EU). Incidentally, this is roughly how Switzerland envisages the use of referendums to initiate and ratify total revisions of its Federal Constitution when this step is triggered by popular initiative (see articles 138 and 140 of the Federal Constitution of the Swiss Confederation). Supporting or aiming for a second referendum now – after the fact, so to speak – is not the normative equivalent of implementing a two-step process at the outset. Taking the latter option seriously would again have gone a long way to avoid the contested legitimacy of the vote regardless of its outcome.
The “Will of the People”-Fallacy
A majority of 52 per cent of votes in the Brexit referendum were to leave the EU. As discussed above, it was (and is) unclear what this means in practice or in detail. I do not want to argue in favour or against any particular option the UK could choose. Instead, I want to point out a serious flaw in how the implementation of the referendum result seems to have been conceptualised.
The UK is a representative democracy and, accordingly, its key constitutional principle is often said to be parliamentary sovereignty. That is, the workings of its constitutional arrangements are based on parliament’s power to pass any law it wishes coupled with its inability to bind future parliaments. Because of this, the Brexit vote was legally speaking advisory only. In other words, neither the UK Government nor Parliament had or have a legal duty to implement the result, let alone implement the result in a particular way. In political terms, however, the referendum has been taken not only to be binding, but also to replace and/or curb parliamentary discretion as to its implementation. It is this last point I want to take issue with.
To be clear, the problem is not that the referendum has been interpreted as being so weighty as to be politically binding – there are good arguments in favour of this position. The problem is rather that the UK Government seems to be intent on using the Brexit vote to bypass Parliament at every turn. Consider the following by way of example. The Government insisted that the notification under article 50 TEU of the UK’s intention to leave the EU was covered by prerogative power of the executive. This was (in)famously found not to be true by the UK Supreme Court in its judgment in Miller. Later on, the Government brought the Withdrawal Agreement it negotiated with the EU in November 2018 to be voted on by Parliament. The Government lost the vote, and instead of accepting defeat, brought the same matter back to be voted on again before being prevented from doing so a third time without making meaningful changes by the Speaker of the House of Commons, John Bercow. The point of this manoeuvring was to reduce parliamentary acceptance to a matter of form rather than substance. In short, the Government claimed (and continues to claim) for itself the sole power to interpret what the vote to leave the EU meant. The Government takes itself to be the guardian of the will of the people against parliamentary scrutiny, and thus keeps trying to translate the referendum result into executive domination.
This is not a natural fit with the nature of voting or the nature of referendums if they are supposed to be an instrument of democracy proper – including parliamentary democracy. Together with Leah Trueblood, I have argued elsewhere that the limitations of voting (either in favour or against only, that is) mean that referendums are best used in conjunction with representation. In fact, systems where the use of referendums is entrenched usually treat them more or less explicitly as an addition to representative aspects of their democracy. Take Switzerland. Popular votes usually concern fully formed drafts of legal provisions passed by the Swiss parliament, and the question asked is usually whether or not voters want to accept the proposal as it stands. Even in the context of popular initiatives where voters introduce a proposed change on their own, this proposal usually needs to take the form of draft legal provisions (for more on this see here.) In other words, referendums are most democratic when they are integrated with, rather than pitted against representative democracy. Anything else verges on authoritarianism or, at the very least, suggests such tendencies.
How, then, does the Brexit vote not suggest that referendums are flawed or should not be used, either in the UK or in general? I have set out some of the mistakes that the UK made in setting up, running, and implementing the Brexit vote. At every turn, the flexibility of the UK’s constitutional arrangements would have allowed for different decisions to be taken. The referendum could have been set up and run as a proper deliberative process. Either by taking seriously issues of franchise, or by allowing for a two-step process. Instead, neither of these issues were properly addressed – particularly by the UK Government. Instead, it tried (and to an extent) succeeded in translating the vote and its result into what can only be called an executive power grab.
That is, the flexibility accorded by the UK Constitution was either not used to enhance the deliberative weight of the referendum, or actively exploited to undermine it. Neither the referendum itself nor the voters are to blame for the UK Government’s malaise over Brexit. Instead, the Government only has itself to blame. This is why the Brexit vote should not be the end of referendums. If anything, it should be the end of badly run ones.
|Based on a talk given on 16 April 2019 during the CERiM and MCEL seminar “Brexit: Legal and Political Implications”. More blogs on Law Blogs Maastricht|