A fight has been raging since Brexit over whether the people’s will has expressed itself; and if it has, what did it say? Davina Cooper explores how a referendum might actually help to support a democracy
With Brexit now in the face of a high court judgment placing parliament very clearly before the royal prerogative, the right-wing media insist the people have already spoken. Like the tablets brought down from Mount Sinai, the law has been written and politicians must defer to its will. Labour politicians too, such as Hilary Benn, emphasise that the “British people have made their decision”.
Certainly there has been no shortage of counter-arguments claiming the referendum was purely advisory; the majority in favour of leaving slim; and that, since the summer election, a significant number of “outers” or non-voters have clarified or changed position. These counter-arguments are important, but what has tended to get neglected in this conflict is a more fundamental problem, and that is the nature of the referendum itself.
What does it say about the level of respect shown towards popular or direct democracy that in a referendum, ostensibly concerned with some of the most important matters a society is facing (and we can debate whether or not this is true), people vote once with no requirement on them to contribute to or help shape political debate? Parliament does not pass laws in this way. New legislation is voted on multiple times across two Houses, with usually extensive debate, committee revisions, and a background of reports and enquiries. In the course of readings in the Commons and Lords, the law evolves and changes. While much may be wrong with the parliamentary system, including the content of many laws, what would it be like if the government routinely introduced Bills once, if success or defeat in Parliament depended on a single vote without any structured deliberation?
In other decision-making contexts involving randomly-selected members of the public, discussion and deliberation also take a structured form. The jury system, with which the Brexit referendum is tacitly analogised given the repeat references to the public’s “verdict”, combines extensive discussion with regular polls as juries collectively test the water to identify levels of dissent and how close they have got to unanimity or a sufficient majority.
If new legislation and decisions about criminal guilt are subject to debate and multiple votes, why are fundamental constitutional decisions reduced to a single sporting match which one team must win? (Even in many sports, victory depends on several repeat games being played).
But what else is possible? Could a referenda process be developed in which voting was just part of a more complex deliberative system? Going beyond calls for better, more impartial information, or encouraging people to properly discuss the issues (although the proposals of the Electoral Reform Society are very timely), what formal referendum structures might enable people to become actively engaged, not simply as a way of helping them come to better informed decisions, but on the basis that active engagement is absolutely necessary to creating legitimate meaningful outcomes?
Political forms are far from perfect. They reflect existing biases; can produce lousy outcomes and are likely to sustain existing inequalities (even with measures to undercut this). Getting them “right” shouldn’t become the primary focus of left politics; nor should more participatory political structures be treated as a means of corralling and quietening dissent. At the same time, what stands out so sharply in Brexit, and so calls for redress, is the gossamer thin respect actually displayed towards public political engagement.
What could popular participation look like? Scaled up to the national level, this is hard to envisage, but several countries are experimenting with larger-scale forms of deliberative democracy, often involving random selection of participants, with social media a means of getting feedback and opinion from wider publics also. Iceland and Ecuador both have recently used creative democratic forms, with varying degrees of success, to develop new national constitutions.
Could we imagine a referendum process in Britain where, for instance, randomly selected local panels (with municipal representatives perhaps also) met in each constituency to discuss the questions to be posed by the referendum – able to call witnesses, take advice from “experts”, along the lines of an inquiry, and so feed into the legislative process through which a referendum bill is formulated? Once a referendum is called, should two votes be held? An initial national vote (that would perhaps have to contribute to the final decision to reduce “gaming”) to provide context and direction for further panel deliberations. A final vote that could involve a single transferable preference (or ranking system) assuming deliberative referendum pose questions more complex than in or out. In between, local panels might produce discussion papers on the issues in conditions where local media are legally obliged to provide coverage; and where national media engage with the diversity of local deliberations.
Imagining and designing alternative systems, and making explicit what they can accomplish (is the decision final or advisory; what other bodies now need to act?), is about taking popular democracy seriously – treating the democratic rhetoric we witnessed around the Brexit referendum as if it was truly meant. It is about investing resources and creating structures so people have some chance of properly considering the issues before them. The notion that it is too expensive or cumbersome seems absurd in the light of the costs and complexity of unraveling or re-forming Britain’s relationship to the rest of Europe. The notion that people are not capable of inquiring into the issues makes a mockery of jury trials, where someone’s future depends on a jury’s capacity and readiness to sift through often complex evidence; it also makes a mockery of the decision to call a referendum at all. If people cannot understand the issues, why are they being asked to make such a fundamental decision?
The LSE project to crowdsource a constitution showed how involving people in political processes is educative. Too often people are treated as passive consumers of political expertise by others. But, as the fall-out of Brexit has revealed, not only is it dangerous and wrong to treat wider publics as fodder, but public displays of professional expertise also can show a startling lack of it.
Would a more active version of popular democracy have generated a better understanding of Brexit’s implications? Or would it simply have spread the best understandings of the time more widely? While impossible to know, having non-professionals asking unexpected questions, off the politicians’ beaten track, in conditions where they are charged with holding local inquiries and producing discussion papers, may have brought certain ambiguities, omissions and complexities to light. But even if it didn’t, it would go some way to creating a more politically active population, attentive to the responsibility involved in making political decisions.
The referendum structure we currently have minimises that responsibility with its ‘winner-takes-all’ yes/ no structure. Little is asked of voters except to vote; they have no capacity to respond to the questions asked, or to collectively carry the weight of the decision made. Their required participation lasts no longer than the time it takes to mark an X in a box, a mode of involvement in which their relationship to the public decision being taken is an entirely individualised and unaccountable one. Right-wing talk about the people’s will suggests a unitary force has emerged, but this is a will with no agentic power (except for the residual fear that thwarting its fictive speech-act will lead to an explosion of violence as commentators and politicians, such as UKIP’s Nigel Farage, now warn).
Treating constitutional politics as if it were a rough sport, in which a bad umpire’s call leaves spectators with no mode of involvement but to invade the pitch in order to punch and kick each other, shows a deep lack of belief in the political potential of citizenship.
Far from revealing, and even less developing, the so-called will of the people (a will which must always be fractured and plural), our current referendum structure green-lights the government’s will (or at least those parts able to deploy the referendum result for their own aims). Voting against the status quo, as the thinnest of political acts, gives the government permission to pursue the settlement they want in a context where withdrawal is of course far from withdrawal but instead the basis of a new form of relationship.
The court, for now, has redirected this power to re-settle to Parliament. While it is unclear how MPs will respond, the crisis this referendum has precipitated could provide the impetus to revisit the referendum system. While calls for a second or final referendum vote are appealing for those opposed to leaving the EU, in the absence of more sustained thinking about referendum reform, they feed into a rhetoric of “poor sports” or “petulant children”, of losers demanding a replay. The questions is: can more democratic and meaningful forms of direct popular democracy be created; and what can Britain learn from other national attempts to do just this?
About the author
Davina Cooper is professor of Law & Political Theory at the University of Kent whose work focuses on concepts, spaces of governance, and radical or dissident politics. Her most recent book, Everyday Utopias: The Conceptual Life of Promising Spaces (Duke University Press (2014)), was awarded the Charles Taylor prize for interpretive methodologies in 2015. Her current book project, also for Duke, focuses on reimagining the state for progressive politics. Having been a locally elected politician and magistrate, at the heart of her research is the cross-over between political practice and transformative academic methodologies.
I heard David Lamy’s speech on the radio this morning and it seems that quite a few citizens are isolated already e.g. 16-18 year olds, ex-patriates etc etc. I think that through the ideas suggested fro citizen consultations are great but for these excluded/isolated groups, such actions are too late. A second referendum would be great by can the triggering of Article 50 be revoked if the final negotiations are rejected by the public?
You say quite a few citizens (how I dislike that word) are isolated. What about the people in the 1970’s who voted to remain in the Common Market little knowing or imagining what it would turn into. We were never asked if we wanted to become part of the European Union. I for one would have said No; I don’t even consider myself to be European.
There was never any serious doubt that the EEC as it then was called was about more than trade. Some people did not hear that. But it was always there. The UK never really understood that the rest of Europe was serious about it, and many people have not grasped that even now – think of Boris’ certainty that the EU will let economics prevail over the European Project in its Brexit negotiations. But you must not confuse some Britons’ wilful blindness about the EEC with the nature of the EEC. The Communities were always about peace and bringing people together, economics was a means to an end. What people chose to believe about them is a separate question.
To make the point clearly and simply, we left the “European Free Trade Association” to join the “Communities”.
The Schumann declaration starts with the words “World Peace”
The 1971 White Paper on joining the Communities says things like: “ 14. The Communities were thus founded to ensure the peace and prosperity of the six member countries … by a gradual elimination of the economic barriers and differences which had divided them in the first half of the century and before.” and Paragraph 37, discussing the alternative of a North American Free trade Area notes that “the six have firmly and repeatedly made clear that they reject the concept that European unity should be limited to the formation of a free trade area.”
The Government’s leaflet in the 1975 referendum said:
“The aims of the Common Market are:
To bring together the peoples of Europe.
To raise living standards and improve working conditions.
To promote growth and boost world trade.
To help the poorest regions of Europe and the rest of the world.
To help maintain peace and freedom”
Institutions change over the years. You couldn’t really expect an institution like the EU to remain static when it becomes an umbrella institution for now 28 countries. People’s attitudes change over the years. However, the referendum was about not only today but also for the tomorrow and there were groups of people who should have had a say on what the EU said. If we voted in, David Cameron would’ve probably got the deal he had brokered, although I think he was rather deceptive when the deal he got was within EU treaty legislation e.g. having a stop put onto EU immigration. Furthermore, I am annoyed that the issue over rising immigration is not actually EU numbers but non-EU immigration which is higher and therefore being part of the EU wouldn’t have any influence whatsoever. I will still think that we want the kind of deal as we had single market status, we might as well as stayed in the EU. Finally, bearing in mind the elections coming up and the issues, no matter how ill-interpreted they are by the public, the EU would’ve had to have had some changes in order to accommodate the changing situations. Therefore, the referendum should have been structured properly with the Leave campaign offering a clear vision rather than offering several and leaving us with a white paper which sounds to me all rather vague and non-visionary apart from Britain being a global trading nation (which it has been since the 13-16th Century)….not very visionary really? Nor much of a promise either when it is something which Britain is already known for.
Similar ground is covered in this article: https://www.academia.edu/28192849/_Deliberative_Voting_Realising_Constitutional_Referendum_Democracy
Only those who voted remain think we should ignore the outcome of a referendum that was debated thoroughly by parliament, and it was a vote of 6 to one in favour of allowing the public to choose on this particular question. There was no doubt about what was voted for, or that the outcome is binding, just because the losers claim that it was only advisory, it wasn’t, or that people didn’t know what they were voting for, those who voted leave certainly did, the claims that significant numbers of out voters wish they had voted remain, has no credible evidence that any of them did. As we have seen by the multiple times that the eu has insisted that referenda are re taken to attain the “right” outcome and the current organised riots by the democrat supporters in the USA it seems we are living in a post democratic world where those on the losing side think their views should be more important than the majority although a single vote is enough to make the difference in a true democrcy.
It’s not about ignoring the referendum. But what did it say? I have no doubt that each Leave voter knew what they were voting for. But none knew – even now none knows – what they are going to get. We could be in the single market and customs union with full freedom of movement; we could be outside all three. Both options would be consistent with leaving the EU. Some Leave voters would be happy with either. Others not.
Yesterday I said I would go to the Park today for a picnic. Today it is raining. Do I have to go to the Park because I said so yesterday? Now that I know the weather I review my decision.
Decisions are not binding until they are made in knowledge of plan, consequences, pros, cons, risks. That is why projects have review points built in. That is why there should be a referendum on the terms of Brexit. That would allow people to make a decision knowing what it entailed. And it would have been based on following through the June result by planning a Brexit and negotiating it with the EU.
Facebook: Campaign for the Real Referendum
Barry, are you joking? ‘There is no doubt what was voted for’! That is the whole issue there was doubt and confusion. Some Leavers were pushing the Norway or Swiss model, some concentrated on immigrants, some wanted to give more money to the NHS. People voted for one or all of those things, they knew what they wanted to achieve. There was even a Leave Camp referendum calling for a second round if the vote was close.
Whatever we might say about the flaws in the referendum process and goodness they were very many, the majority vote was to explore ways to Leave and that is what should be done. There is no mandate to leave the single market or the customs union, there is no mandate to cause the collapse of the City of London, the steel industry, the aerospace industry, the automotive industry and so on. The Leave economic expert, Patrick Minor said that a price of Brent would be the end of the UK’s manufacturing industry, we did not vote for that, we did not vote for the UK to withdraw from Euratom, from the European Medical Agency, from the European Open Skies agreement. We did not vote to turn our EU resident citizens many married to UK partners to be deported, we did not vote for UK citizens living in Europe to be forced back to live in the UK. We did not vote to reawaken the problems in Northern Ireland and to end the Good Friday Agreement, we did not vote to render the situation in Gibraltar so precarious that their status is called into question.
There are do many complications involved with leaving the EU that a single referendum is unable to cover them
This post is really onto something.
First, let’s be clear. The June result was real and must be respected. The Government should plan and negotiate Brexit – that is the clear message of the majority vote of the people. But the mandate stops there.
All the arguments that the vote should be declared null (16/17 years olds not voting, counting non-voters for Remain, Leave lied, too complex for voters) are specious: even if different rules and behaviours would have been better their absence does not invalidate the result – similar rules apply to general elections. Nor does the “advisory” nature of the referendum mean that Parliament can just set it aside.
But there are two clear limits on the extent to which the June result reflects a settled popular will.
First, at 52:48 the result was clear but not overwhelming.
Second, to the great surprise of many of us, Leave had no plan. So unlike a general election where voters choose between defined competing visions of the future that can be assessed, the choice in June was: EU or something else? The June vote turned out to be a vote on an idea. Every Leave voter could project their own vision of Brexit on to the ballot paper.
It follows that the June result can only be provisional. No-one takes a project from idea to implementation without reviewing the project plan. So there need to be further decision points.
Davina Cooper has shown lots of ways of engaging citizens in the decision making process in order to promote citizen understanding. Great. Let’s go for all of those.
But for the decision itself we have two choices: Parliament (either now or after a general election) or a referendum.
Having gone down the referendum route, Parliament does not have the political authority to confirm or change course. Insofar as the referendum Leave vote was a cry from those who feel that no-one listens to them, a Remain decision in Parliament would be further proof of that. How would they react if they felt unfairly treated?
Parliament does have the power and duty to shape the package. The detailed line by line discussion of options can only be done by Parliament. (There are obvious constraints given that we are talking about a complex international negotiation.)
Then that final package should be put to the electorate in a referendum on the terms of Brexit about 20 months after the Article 50 notification. The choice would be: Leave on the agreed terms or Remain?
It is attractive to offer multiple Leave options, but not I think workable. Who would design them? Who would vet them to ensure that they did not assume unlikely negotiating outcomes? What weight to give to second preferences? No matter how complex a decision, in the end it comes down to a simple binary choice: buy this flat or not? see this film or not? Brexit on this set of terms or not?
Facebook: Campaign for the Real Referendum – on the Terms of Brexit
‘A fight has been raging since Brexit over whether the people’s will has expressed itself; and if it has, what did it say?’ I actually thought it said we wanted to leave the EU. But I wasn’t expecting the continual Tide of Insults to those who voted to leave viz. Racist, Xenophobic, Bigotsi &c. I still don’t understand why it is Racist &c. to want to leave the EU and rejoin the Larger World. But I have seen recent suggestions that following Brexit and the Election of Mr Trump serious thought should be given as to who should actually be allowed to vote. In other words, think as I do viz. remainng in the EU &c., or you won’t be allowed to vote. So why not just do away with Elections and Referendums? And if there was a Second Referendum and once again the Racists &c. voted to leave; what then? A Third One?
You are quite right: a majority said they wanted to leave the EU. But what does that mean? How about: I want to go on holiday? What does that mean? Citybreak, cruise,skiing, safari, weekend in Blackpool, beach, partying, camping? They are all different – some I’d like, some I’d rather stay at home.
Do we leave the single market? Do we retain freedom of movement? No-one knows. Until there is a real plan any decision we make can only be provisional. That is why there should be a referendum on the terms.
Would that settle it? If Leave won then assuming the terms were the key terms and clear enough, yes. What if Remain won? Well, Leave would be able to argue that there would be a majority for Brexit on different terms. If they could define those terms, if they did not assume improbable negotiating outcomes, and if they could show there was likely to be a majority for them then yes we could have another referendum. But since Leave could not put up a plan in June I’d not expect them to do any better next time round.
Lots of good ideas. Regatding the will of the people then it is clearly stated in http://www.un.org/en/universal-declaration-human-rights/
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
The will of the people is then whatever majority reveals its preference whether it is through elections or referendums.
However Im concerned about biases emerging throughout your strategy to engage citizens more actively. Ive dealt with local council officials both elected and unelected on many a occasion and they more than most are biased towards self-interest and their own egos. MPs seem less so but tend to articulate their own preferences as opposed to remaining neutral.
At the beginning of the referendum campaign which officially started three months before the vote, I wrote to the Electoral Commission complaining that the Stronger in Europe campaign group were erroneously conflating Europe with the EU in their campaigning literature. The Commission told me there were no laws to ensure campaign groups did not mislead or manipulate the public through ambiguity and that it was for the public to discern for themselves what was fact and what was fiction. Hence we have the Green Party claiming the EU protected the environment when in truth it was legislation arising from the Bern, Bonn and Washington Conventions that protected the environment. Similarly Remain groups claimed the EU protected worker’s rights when much of worker’s protection were already UK law. Similarly nearly all Remainers I debated with did not understand the withdrawal process and continued to claim that the UK will not participate in withdrawal negotiations at all despite the relevant treaty articles be available on line.
As such confirmation biases and manipulation of available information was at the heart of many debates which tended to lead to ideological smearing especially by liberal remainers.
So how do we counteract these biases. Obviously in the first place it should be made a cri.inal offence to knowingly mislead the public when in public office or when operating as a registered campaign group. Also greater support for groups like https://fullfact.org would be helpful.