Referendums are potentially destabilising in parliamentary democracies because they generate alternative, competing sources of legitimacy, writes Nat le Roux. A majority of elected representatives may hold one view on a matter of national importance, and if a referendum demonstrates that a majority of the public hold the opposite view, which manifestation of democratic legitimacy should trump the other?
In Britain, Parliamentary Sovereignty is the governing norm of the constitution: it would seem to follow that a Parliamentary majority can always overturn a referendum result. The reality, at least in the particular circumstances of the EU referendum, is less clear-cut:
- The referendum result will be implemented, effectively irrevocably, if Britain invokes Article 50 of the Treaty on European Union. It may be that the Prime Minister can do this without consulting Parliament. If that is so, it can be argued that we now have a new constitutional principle under which, at least in particular cases, popular sovereignty as expressed in a referendum trumps Parliamentary Sovereignty.
- On the other hand, if the invocation of Article 50 does require legislation, we should ask under what circumstances, and by what arguments, MPs can overturn the directly expressed views of the electorate without severely damaging the democratic legitimacy of Parliament itself.
The problem of competing legitimacies does not apply equally to all types of referendum. It is sometimes asserted that, because of the principle of Parliamentary Sovereignty, all referendums in the UK are advisory only. That is misleading. The AV referendum of 2011 sought popular endorsement for an AV voting system for which Parliament had already legislated in the Parliamentary Voting and Constituencies Act 2011. If the referendum result had been in favour of AV, the new voting system would have been introduced without further recourse to Parliament. Parliament could of course have legislated subsequently to repeal or amend the Act, but a post-legislative referendum of this type cannot properly be described as advisory. Such a referendum may be held to lack legitimacy because turnout is very low, or the margin of victory very narrow, but there is no conflict of democratic legitimacies because MPs have determined in advance the exact legal consequences of both possible referendum results.
By contrast, advisory referendums such as last month’s EU referendum and the 2014 referendum on Scottish independence are by their nature capable of generating irresolvable paradoxes of legitimacy in the event of a vote against the status quo.
In these circumstances, those who voted with the majority will understandably assume that, while the referendum may have been merely advisory in law, Government or Parliament will nonetheless act to implement the ‘will of the people’.
Despite this, politicians may legitimately take the view that a referendum won by a very narrow margin is an insufficient mandate to change the status quo on an issue of major constitutional importance. In the aftermath of the EU referendum, the great majority of politicians have expressed the view that a 51.9 per cent vote for Brexit should be accepted as decisive. That is understandable: a significant part of the Leave vote represented a generalised protest against the political elite, and it would be unwise for that elite to reject the outcome too readily. However nor would it be surprising if this consensus begins to erode over the coming months. (It is also interesting to speculate whether the same consensus would exist today if Leave had won with – say – 50.5 per cent of the vote.)
The problem of legitimacy is compounded in referendums about sovereignty because the consequences of the two possible outcomes are not symmetrical. A ‘Leave’ vote, if implemented, is effectively irreversible: a ‘Remain’ vote leaves open the possibility of future referendums on the same issue. For this reason, many constitutional commentators believe that sovereignty referendums should require some form of super-majority – 60 per cent of votes cast is the threshold most commonly suggested – to overturn the status quo. The legislation which provided for the 1979 referendum on Scottish devolution set a threshold for implementation of 40 per cent of the registered electorate, a deliberately high hurdle which was not achieved. To date, all advisory referendums in the UK have been winnable by simple majority.
In retrospect, it might seem sensible from a constitutional perspective to have applied threshold provisions in both the Scottish independence and EU referendums. However from David Cameron’s point of view that would have jeopardised their political purpose, which was to neuter demands for independence and Brexit respectively.
There is then the topical question of whom the electorate was ‘advising’ in the referendum: the Prime Minister and his Government, or Parliament? Before polling day, in so far as the matter was considered at all, it was generally assumed that in the event of a Leave vote the Prime Minister would in due course use his prerogative power to invoke Article 50 without consulting Parliament. That view was challenged last week by three academic lawyers in an influential post on the UK Constitutional Law Association website, arguing that the decision properly belongs with Parliament and requires legislation. Leading constitutional experts including Lord Pannick and Sir Malcolm Jack, former Clerk of the Commons, take the same view.
At the time of writing, three separate groups of litigants have announced their intention to initiate judicial review proceedings to compel the Government to place the matter before Parliament. The legal arguments around this issue are not considered here, but will be the subject of a forthcoming Constitution Society paper by Dr Andrew Blick and Richard Gordon QC.
Let us assume for the present that the Supreme Court holds that invocation of Article 50 requires legislation, or alternatively that the new Prime Minister decides that it is right to refer the matter to Parliament in any event. How should a principled MP decide which way to vote, assuming a free vote is permitted, as it was on the first two occasions that Parliament voted on the principle of joining the European Economic Community (on the third occasion in 1971 Labour whipped against)?
Liam Fox recently expressed the view that any MP who tries to block Brexit ‘I don’t think deserves to have a place in the House of Commons. Their voters should want to ask whether they have a right to represent them if that’s the opinion they take.’ A more balanced assessment would suggest that an MP who felt it right to vote against the invocation of Article 50 could justify his position on at least three types of ground. None of these arguments is decisive, but nor are they evidently unreasonable:
- The referendum result is an insufficient mandate to implement a major, irreversible constitutional change: the result was very close and showed the country effectively split down the middle; the Leave campaign told significantly bigger lies than Remain; many voters did not properly understand the consequences of Brexit.
- The situation has changed fundamentally since 23rd June: we are in the midst of a balance of payments crisis and the economy is heading into recession; the international security situation has deteriorated over the summer; the polls suggest that Remain would secure a decisive majority in a second referendum (assuming any of this so transpires)
- An MP’s duty is to his or her constituents. Burkean purists will take the view that an MP should vote according to her conscience in what she believes to be the interests of her constituents. An alternative argument is that an MP should vote to reflect the views of a majority of his constituents (‘their voters’, pace De Fox). Certainly it would seem odd if a London MP felt obliged to vote for Article 50 because of the national referendum result when a significant majority of her own constituents voted Remain. The case of Scotland seems especially clear: all SNP MPs would vote against Article 50, and it is difficult to argue that they would be wrong to do so.
What if Parliament declines to invoke Article 50, a not unlikely outcome given that a substantial majority of sitting MPs are Remainers by personal conviction? The constitutional position would be that Parliament had sought the advice of the electorate in a referendum and decided, on reflection, to reject that advice. Politically, the matter would clearly not end there. A general election or – horrific to contemplate – a second referendum would seem unavoidable.
Please note this article first appeared at the Constitution Society blog.
Nat le Roux is Strategy Director of The Constitution Society. He writes here in a personal capacity.
“However from David Cameron’s point of view that would have jeopardised their political purpose, which was to neuter demands for independence and Brexit respectively.”
-This is perhaps too generous, or too broad – the real problem may simply have been trouble within the Conservative Party:As they fronted both campaigns. A win-win was on the cards.
-Its hardly a matter of being a “Burkean purist” to expect ‘common sense’, or the common weal, to feature in the thinking and decisions of Parliament.
Why have a Parliament at all if lies without consequences – made on the hoof, would suffice?
Parliament – the HoCs in particular, seems to have dropped the ball early on:Had they thought to exercise their constitutional (sovereign) position and and set down for the advisory referendum’s response to come before the House;to be poured over – along with the context under which the referendum had been run, and then made the final decision:All would be well.
Finally: As Democracy should trump Party Politics, the only way forward now is to have a general election. Parliament’s ‘dereliction of duty’ broke it, they seem unwilling (perhaps ‘frit) to fix it, so the matter must return to the electorate – in such a way as to require that MPs/Partys have some skin in the game;at long last.
The only legitimate way to stop Brexit is for a general election in which one or more parties campaign to stay in the EU. Should such a party or parties obtain a majority then their Government will have a democratic mandate to overturn the referendum result.
Without the endorsement of a general election result based on Remain vs Brexit MPs who claim a higher obligation than the referendum risk either deselection of rejection at the polls. The Remain voters fail to understand the depth of feeling among Brexit supporters and should stop this patronising nonsense that they didn’t understand the debate. The problem was that the current political parties didn’t understand their own voters.
What seems overlooked is that when a “referendum” such as this is accepted as of overriding legitimacy then there is totalitarian rule by the majority of those voting, and that, in such circumstances of majority dictatorship minorities have no rights.
The UK has no constitution. The only protections of minorities are the laws produced by parliament. Parliament, over the centuries, has enacted laws, and enabled courts to build case law, that have constructed what is usually seen as a world leading set of protections for most minorities, as long as parliament remains supreme, and of the same mind. Those protections in turn are seen as the bedrock of a stability, a safety. Based on those many people, and corporations, have come to, or grown in, or invested in the UK, leading to great prosperity at times.
After WWII most of those it had affected felt a need to do everything possible to prevent a recurrence, anywhere. Many from the UK contributed to creating treaties and structures to provide stability, protect minorities, resolve conflicts at the earliest possible stage. British legal concepts combined with traditions of written constitutions to provide tangible manifestations of protections. And Britain signed almost all of them, pressing others to do the same. However, keeping its parliamentary tradition none of those were actually accessible by British people (known as subjects rather than citizens) within Britain unless they were translated into British law by the UK parliament. Many of those rights were never so enacted, or were done so incompletely, or with distortions.
But then the UK committed itself further to the EU, as part of obtaining its own (and its prime, US ally’s) foreign policy objective of hugely enlarging the EU to incorporate former eastern-block states. All British subjects because additionally EU citizens, along with the citizens of every other EU state, with rights determined and protected by the EU mechanisms as well the UK parliament. Those mechanisms include a directly elected European Parliament, and a requirement that any change to the treaty required approval by all the national parliaments. The EU at the same time made the European Convention of Human Rights part of EU law too. So the rights under that convention – which the UK had also helped write, and promote, independently of the developing EU – also had to be directly accessible by British EU citizens, rather than as as a last resort after UK law had been exhausted – hence the Human Rights Act.
Among the rights to which British minorities have gained access as a result of the ECHR and EU mechanisms – which have been legislated by UK parliaments after being required by those mechanisms – are race, religious, gender, and disability, and to a lesser degree sexual orientation equality. Rights in the workplace, of consumer and environmental protection have mostly come from single market rules, in the face of lobbying by industrial forces that can have overwhelming economic power in individual nations. Although those rights have often achieved less than hoped, as yet, many people would be sorely exposed without them.
British governments and media (which are also often an industrial force with overwhelming economic power in the UK), and often social activists, have usually downplayed the role of those “foreign” factors, for obviously self-interested reasons, but any who rely upon those rights would be ill-advised to believe that, or that a reformed or evolved goodness of the British system means they are safe.
Just occasionally UK rights have been enacted that exceed, and perhaps would have led those of the EU, although very rarely those of pathfinding EU nations. Equality protection for sexual and gender minorities in schools, age protection, and same sex marriage are examples. But those depend – until the consensus of the ECHR’s court, or the totality of the EU governments and parliaments catch up – upon the mood of the UK parliament.
All this seemed an impressively solid and vital edifice until the “referendum”. But suddenly, and seemingly for the almost inadmissible reason of resolving internal Conservative party conflicts, a simple majority vote of the whole population was given veto power over that entire edifice, as well as its huge economic aspects. Maybe the Conservative leader, writing his election manifesto commitment (voted for by a small minority of the population of England alone) thought it was a mere formality, but the whole thing was drafted, planned, researched, and legislated in an almost unbelievably threadbare manner. Against everything one understood were protections against failings of UK parliamentary government, it seems no research or planning on an exit vote were ever done. No civil servant played through possible eventualities, warnings placed on record, no backs (or people) protected, no plans were in store, “just in case”. Thus no consideration was done of the consequences for anyone, from the richest to the smallest, most vulnerable minorities.
To be candid that was illegal – the Human Rights Act, as well as such crucial instruments as the Northern Ireland settlement, required such work, and ministerial assurance that they have seen, studied, and satisfied themselves on compliance. But ministers have always treated treated that as a mere lip-service unless challenged.
So now we have a simple majority vote, after a campaign that seemed entirely unregulated in terms of what issues could be raised, what lies told, what promises made, and by whom, or who could be vilified, hardly scrutinised at all by the fourth estate, being held to require the ending (and being seen by some as effectively instantly ending) at least some of those minority rights. And remove EU citizenship – Farage actually waved his EU Citizen passport in front of a TV audience and demanded that he be deprived of that citizenship. Many are terrified. Some – people, employers, corporations – are packing to leave, to emigrate. Investors are selling up.
The perpetrators are setting forth to attempt the same in other EU nations.
Yet academics debate how this affects the ongoing balance of power. Maybe they see themselves as safely within the majority, or they have places of safety overseas.
No. This cannot be allowed to stand. The “majority” cannot be allowed unfettered power. Essential rights, hard won, at huge cost, cannot be removed in such a way. Our heritage means absolutely nothing if that is the case.
Another name for a Referendum is a “plebiscite”. – A plebiscite leads to rule by the plebs. – We got what we asked for.
I think there should be legislation to confirm the referendum with the MPs representing the result in their constituencies – simple. However, I think there should be legislation for the negotiations and what politicians will present to the EU.
I also think UK law affected by Brexit should involve public as well. Do individuals and organisations really want to start lobbying for legislation which they had secured through the EU?
…if a referendum demonstrates that a majority of the public hold the opposite view, which manifestation of democratic legitimacy should trump the other? …
The EU has addressed this very question several times over the past few years. Their definitive answer is:
1) – electorates are to vote as many times as necessary until they get it right.
2) – if that’s too much trouble, a referendum can be ignored anyway.
The European Parliament President Martin Schultz put it quite succinctly:
“It is not the EU philosophy that the crowd can decide its fate“.
There is no paradox here. Parliament is NOT bound by any referendum ‘binding’ or not (who decides if a referendum is binding in the first place? Parliament, and what parliament has bound it can unbind). But parliament can decide to abide by the result of a referendum, as it has decided to do in this case. Deciding to abide by the result of a non-binding referendum is in fact the perfect example of parliamentary sovereignty.
It may well be the case that this decision was arrived at for reasons that are part party political, but parties are the very stuff of Parliament. As Dicey put it “party government has been for generations not the accident or the corruption but, so to speak, the very foundation of our constitutional system”.. None of this impacts in any way on parliamentary sovereignty. Just because Parliament does not HAVE to do something, does not mean it surrenders sovereignty should it CHOOSE to do so anyway.