The Brexit referendum represents a constitutional turning point for many reasons and it has shown how referendums can be dangerous for the British constitution. According to Claudio Martinelli (University of Milan-Bicocca) British institutions should accept a fundamental distinction between two types of referendums: those that allow the electoral body to choose between two clear and defined results, and those that instead involve an asymmetry between the two options or, worse, two indeterminate results.
Since the beginning of the 1970s, referendums have been not only accepted as a constitutional tool to make specific political decisions, but have been widely practised, at any level of government (national, regional and local), and always on sensitive issues. The Westminster model itself is changing because of the frequent use of these popular consultations.
The 2016 referendum is therefore only the last link in a long chain, but it also represents a turning point in the use of referendums in the UK: because of its assumptions, the outcome, the political clash it has caused, and the constitutional cleavages which it has opened. The statute implementing the Brexit referendum clearly shows the political dimension of the whole operation. During the legislative process, the Conservative government rejected all amendments that could have weakened David Cameron’s bargaining power at the negotiating table with the EU. The Prime Minister’s political calculation was that if the EU institutions really feared a negative outcome, they would be persuaded to accept most of the requests made by the UK in order to redefine its membership. His strategy was correct: the Cameron-Tusk Agreement was largely receptive to the wishes expressed by the PM. The EU feared a domino effect following a negative referendum in the UK. On the basis of political strategy alone, voters were faced with a referendum founded exclusively on the principle of majority.
But the proposed alternative was basically asymmetrical: in the case of a Remain vote, the Cameron-Tusk Agreement would come into force according to a precise and pre-established legal agreement; in the case of a Leave vote, there were no predictable effects and proceedings to comply with the voters’ will, particularly when it came to the procedures and terms of the withdrawal. A vote to Leave had been a strong choice of direction, that had to be respected by the constitutional bodies, but with undetermined political and legal consequences. Ironically, only after the referendum, it was realized that the Leave victory, rather than providing an answer, had opened up several disturbing questions – many of which are still open three years later.
The reference to the legal requirements of a referendum, established in every statute, is important to understand the characteristics of its consequences. Indeed, the Supreme Court of the United Kingdom in a crucial passage of the Miller judgment stated that the effects of each referendum depend on the provisions contained in its founding statute [par. 118]. This statute can regulate the legal consequences of popular consultation or can refrain from doing so. In the case of the 2016 referendum, as in that of the 1975 EEC referendum, the law did not stipulate the consequences of the outcome [par. 119]. On the contrary, in the case of the 2011 referendum on the electoral system, the mandatory profile of the popular vote had previously been regulated by Parliament, which had taken steps to write a law establishing the electoral rules of the new AV system. But in the two consultations on Europe, no such specific arrangments could have taken place, since the concrete consequences of those decisions were not up to Westminster alone, but depended on bargaining with the European institutions. Similarly, the Scottish independence referendum of 2014 certainly could not determine the nature of the new relations between Scotland and the United Kingdom. The statute of December 2015 at least could have established the concrete ways of invoking Article 50 of the Lisbon Treaty (TUE) according to the British constitutional law, but this was avoided in order not to add any details to the substance of the choice between Leave and Remain.
It would be appropriate if British institutions would accept this fundamental distinction between two types of referendums: those that allow the electoral body to choose between two clear and defined results, and those that instead involve an asymmetry between the two options or, worse, two indeterminate results.
The British constitution and, within it, the Westminster model, has always been in constant evolution. The acceptance of plebiscitarianism in constitutional practice is an aspect of this change. The vision expressed by Dicey in 1890, which considered the referendum compatible with parliamentary sovereignty, has been confirmed in recent decades. Many celebrated referendums have provided a further boost to the evolution of the British constitution, making it more modern and articulated. In particular, those concerning devolution and local autonomy: popular involvement in these political decisions has also strengthened the subsequent parliamentary legislation. However, the Brexit referendum has shown that the peculiar characteristics of the British constitution, unwritten and not codified, require that Parliament uses this instrument accurately and within limits defined in a statute. To prevent the danger of destabilising questions, it would be advisable to exclude the possibility of implementing referendums of a merely political nature, where the implementation of the result may be hard to determine.
We must not forget that the British system already provided important examples of referendums that are removed from pure political discretion and aim to protect constitutional structures and, therefore, ultimately, to safeguard citizens’ rights. An important example is the Scotland Act 2016. This law makes the devolved institutions permanent, thereby erasing the dominus role of the Westminster Parliament vis-a-vis the Scottish parliament and government. It states that ‘the Scottish Parliament and the Scottish Government should be abolished on the basis of the decision of the people of Scotland voting in a referendum’. We find similar rules in Wales Act 2017. Other positive examples of the electorate’s involvement can be found in the Local Government Act 2000, in the Localism Act 2011 and in the European Union Act 2011.
In short, the referendum as such is not only compatible with the modern British constitution, and the recent evolutions of the Westminster model, but it can enrich British democracy if it is used correctly, that is, not only as a political strategy but in the framework of constitutional procedures aimed at consolidating institutions and their relationship with the public.
This post represents the views of the author and not those of the Brexit blog, nor the LSE. Image is licensed under the Creative Commons Attribution-Share Alike 4.0 International
Claudio Martinelli is Professor in Comparative Public Law and in Parliamentary Law at University of Milan-Bicocca. He is the author of “Diritto e diritti oltre la Manica” (il Mulino, 2014) and “Il referendum Brexit e le sue ricadute costituzionali” (ed.) (Maggioli, 2017).
“but it can enrich British democracy only if correctly used” The experience of the 2016 referendum and its aftermath is enough to show that the UK has a long way to go before it is capable of holding a referendum whose result which will be accepted by the majority of the losers.
On the Remain side, there are the following objections. 1. The narrowness of the result. (I think it would have been reasonable to require a second confirmatory result 12 months later if Leave had won by between 50% and 60%.) 2. The people qualified to vote. (There is no real reason apart from historical accident why EU27 citizens and young people aged 16 or 17 were allowed to vote in the Scottish Independence referendum, but not in the EU referendum, or recent expats in the EU referendum but not in the Scottish referendum). 3. The lack of consequences for breaches of campaign financing laws.
On the Leave side, 1. the way Government money was spent before the purdah period in paying civil servants to work for Remain and to produce the pro-Remain government leaflet. 2. the peculiarity of campaign financing rules which meant that Remain, presumably baving more independent pro-Remain organisations, was allowed in total to spend much more than Leave. https://www.electoralcommission.org.uk/find-information-by-subject/political-parties-campaigning-and-donations/campaign-spending-and-donations-at-referendums/campaign-spending-at-the-eu-referendum
I do not think the 2016 referendum should be rerun, you can’t alter the rules after a game after it is played. But all these issues need to be considered before there are any more referenda, since the current system is not fit for purpose. There is just no point in having a referendum unless the result is going to be accepted by the losing side.
“I think it would have been reasonable to require a second confirmatory result 12 months later if Leave had won by between 50% and 60%.”
What you are suggesting here is asymmetric democracy, but that is any oxymoron. In any case you have to see things in context, the Maastricht Treaty was, in effect, agreed by a vote of somewhere between 0% and 0%.
The most important issue is that the Treasury wrongly predicted an increase in unemployment of between 5000,000 and 800,000 in the immediate aftermath of a Leave vote. As you say the 2016 referendum cannot be rerun so we can only guess what the outcome would have been had the Treasury made a correct forecast.
Hi Teejay: “What you are suggesting here is asymmetric democracy, but that is any oxymoron” I think it is reasonable to have asymmetry here when there is a major status quo.
Suppose there were another Scottish independence referendum. (I suppose that there will be, whether in 5, 10 or 100 years.) Suppose the Scots voted 52% to 48% for independence. Would you be in favour of that wish being implemented, come what may? I wouldn’t. That is to say, I would like it to be clear before the first referendum that if there were a narrow win for independence, there would be a second confirmatory referendum 12 months later.
I agree that this is asymmetric democracy, but I don’t think it is undemocratic. If 51% of Scots really want independence, they should get it. I don’t think an extra wait of 12 months is too big an ask.
“the Maastricht Treaty was, in effect, agreed by a vote of somewhere between 0% and 0%.” You know what I think of this argument, but other readers of this blog may not. I agree with John Major that referenda should mostly be avoided and that important decisions should be made by Parliament. The Maastricht Treaty was negotiated before the 1992 election and the Conservatives ran in 1992 on the basis that they would ratify it, without a referendum. Since they won that election, I think that’s all the mandate they needed.
The situation is different with the Lisbon Treaty, where both Labour and the Liberal Democrats broke manifesto commitments to a referendum. Shame on them. IMO if the British had got a referendum back then, they might well not have voted to leave in 2016.
Of course that’s all my personal opinion. I think my opinions of democracy are consistent, as are yours.
Hi Alias, thanks for your reply. I respect your view but have to disagree here. For decades, the two party system, first past the post etc has acted as a barrier against the eurosceptic viewpoint. It isn’t really acceptable to put a further barrier in the way when the electorate finally get a chance to have a proper say on the matter. I have looked at the Labour manifesto for 1992 and as far as I can see they were more Europhile than the Conservatives. If you look at the 2015 General election, then over 98% of the MPs that were elected stood on a manifesto of staying in the EU. But we now know that the country was split roughly 50/50 on the issue. People voted for Europhile parties in 1992 because they didn’t have a realistic alternative but that doesn’t mean that they endorsed the Maastricht Treaty.
“I do not think the 2016 referendum should be rerun, you can’t alter the rules after a game after it is played. But all these issues need to be considered before there are any more referenda, since the current system is not fit for purpose.”
Yes, I would say to you and to the author of the article that the referendum issue is not an urgent or live issue. What is a live constitutional issue is that votes are being taken in Parliament but Parliament voted against the boundary review in 2013. Had they voted for the boundary review, then many of the marginal Brexit related votes in this Parliament would have gone the other way.
If we did have a second referendum on Brexit in the near future then the voting constituency should remain unchanged otherwise it will look as if the rules of the referendum are being revised in order to get ‘the right result’.
“the referendum issue is not an urgent or live issue” It is not urgent or live right now, but it may be in a few years if the SNP gets another referendum. If a majority of Scots really want to leave, they should be allowed to. But they must really want to, it wouldn’t be good to have the immense constitutional disruption (probably similar in some ways to the current Brexit chaos) provoked by a 52% vote for independence which could easily have gone the other way.
This depends on whether Brexit has or has not taken place before the next Scottish independence referendum.
If Brexit has taken place, it would seem fair diddums if the Scots decided to go independent on 52% of the vote. “What is good for the goose is good for the gander”.
“What is good for the goose is good for the gander” So if I understand the argument correctly, if the goose is involved for years in constitutional chaos because of a badly-thought-through referendum, the gander has to repeat the same mistake?
I will give the SNP credit for wanting what’s best for Scotland and for the island of Great Britain, so I would hope they would learn from the mistakes of the Brexit referendum, rather than wanting to repeat them.
“The Brexit referendum in 2016 is therefore only the last link in a long chain, but it represents a turning point in the use of the referendum in the UK: for its assumptions, for the outcome, for the political clash it has caused, for the constitutional cleavages which has opened.
“It can enrich British democracy only if correctly used, that is, not for political strategies“
The EU referendum of 1975 was called as a political strategy. (If you don’t understand this point you need to read it up.)
The outcome was an option which was totally undefined. (People did not understand at the time that they were giving a future Government the power to agree say the Maastricht Treaty. If they had understood that, then the vote might have gone the other way.) The 1975 referendum and the subsequent failure to hold a vote on the Maastricht Treaty is a direct cause of the current political impasse. The Brexit referendum is no more inappropriate than the 1975 referendum. The only difference is that one produced a more decisive voting pattern than the other.
@Teejay. In a nutshell.
Three years on from the U.K. 2016 Referendum and we are no further forward, other than the MPs refusing the withdrawal agreement. The Supreme Court claiming this particular prorogation was ‘unlawful’ yet I have been unable to find any law, and whilst I gather there is a fine line between the distinctions, it’s still reported that the PM/ Government broke the law!
And now have MPs creating a Bill that gives away the electorates majority vote to leave, back to the EU to supply an acceptable deal, which as far as I can tell, they have been saying that’s what the withdrawal agreement is!
Were the Supreme Court correct, as surely the act to prorogue is a Parliamentary Procedure, without formal time scales?
And should the electorate consider the EU, as a hostile State, and have the non executive (non Governmental MPs that discussed alternative arrangements, plus the Benn Bill guilty of Treason by aiding a hostile State?