Depending on their design, referendums can be bad for democracy, writes Joseph Lacey. He argues that the central problem with the Brexit referendum was its ad hoc nature. Any second referendum would be of a similar sort and so should be avoided. But there is a way of legitimately deciding upon questions of EU membership: through the mandatory referendum.
A common complaint of those who voted to remain in the EU is that the referendum should have never happened. The UK is a representative democracy, they say, where Parliament is sovereign. How on earth can such a complex issue as membership of the EU be decided by the people in an informed and balanced way? Don’t we elect representatives in order to make these complex decisions for us?
By contrast, referendums to join the EU have become the new norm, with ten of the last eleven member states to join have done so following referendums. The rationale is simple: becoming part of the EU is a decision so momentous that it requires the direct legitimation of the people. For similar reasons, it would be difficult to justify in principle, or imagine in practice, a country leaving the EU without a referendum of some kind.
In fact, the very Remainers who decried the 2016 referendum are unlikely to have resisted the demand for a referendum if the decision to leave the EU was taken solely by parliamentary fiat. No more evidence for this hypothetical is required than the planned legal challenge to the government recently proposed by the anti-Brexit pressure group Best for Britain. Their case is that the 2011 European Act, passed by Parliament, requires a referendum on any withdrawal agreement between the UK and the EU because such a deal would necessarily involve transferring competences to the EU during any transition period. The democratic argument motivating their legal challenge, however, is that such a major decision should not be made without the direct consent of the people.
There may be good reasons to resist the use of referendums. But it is nevertheless difficult to contend with the democratic force of the rationale for referendums on EU membership issues. And, in any case, it seems that there are few circumstances in which citizens would settle for less in any EU country. It is therefore worth reflecting on the question of how withdrawal referendums from the EU should be designed, because neither the Brexit referendum nor any subsequent vote would be able to meet the basic conditions of a well-designed referendum.
The design problem of the UK’s EU referendum
The central design problem of the 2016 referendum was its ad hoc nature. Ad hoc referendums are those that are not legally required, but rather called at the will of political representatives. These are problematic because of the ease with which they can become tools to gain political advantage or relieve political pressure. In other words, ad hoc referendums are highly susceptible to being called for party political reasons, rather than the democratic rightfulness of consulting the people on an important issue. It is not difficult for citizens to pick up on such disingenuous motives. Meanwhile, those who stand to lose from the referendum are likely to view it as an illegitimate attempt to change the rules of the game – circumventing the normal parliamentary decision-making procedure for some secondary political end.
The Brexit referendum unfortunately took on a dynamic of precisely this kind. The promise of a referendum on EU membership was primarily an electoral gambit by David Cameron, who wanted to appease the Eurosceptical members of his Conservative Party and neutralize the electoral threat of UKIP. Precisely because of the transparent electoral opportunism motivating the referendum, and the failure of the government to articulate in advance what leaving the EU would mean in practice, the legitimacy of the vote was in doubt from the beginning, and vocally called into question by the losers – the 48% who voted to Remain.
The tragicomic nature of the UK-EU withdrawal negotiations is a direct result of the kind of political gambling made possible by the opportunity for ad hoc referendums. Essentially, the government is now faced with the task of implementing a decision which it did not support, and for which there was no plan in place. The meaning of “Brexit means Brexit” has had to be worked through after the fact.
What would have been a more sensible referendum design
We must remember that referendums are supposed to be a check on the power of our representatives, to stop them acting against our best interests. Referendums are not supposed to be tools in the hands of our representatives to be used for party political purposes. The mandatory referendum serves as the main alternative to ad hoc referendums. Rather than allowing the government or parliament to simply call a referendum at will, mandatory referendums legally stop the government from making some decision without the direct approval of the people through popular vote.
Let us imagine a mandatory referendum legally instituted for the question of withdrawal from the EU. On this scenario, the national parliament would be first required to pass legislation to access Article 50 of the Treaty on European Union on withdrawal from the EU. The government would then be legally prevented from putting this legislation into effect until it had been approved by a binding national referendum.
Not only would this be the most democratic arrangement by giving the people the final say over their EU membership, but it would also set out well in advance the decision-making procedure for these kinds of issues. In this way, all actors will be aware of the rules of the game before the question of withdrawal even arises. Because the proposed type of referendum is necessary, and therefore predictable, while serving as a check on the government’s power rather than as a tool for electoral manipulation, the result will be democratically legitimate and far more likely to be perceived as such. Importantly, to the extent that the government is required to register its intention to trigger Article 50 in advance of a referendum, one can presume that a rational plan of action for post-EU membership would be formulated from the beginning.
The aim of this proposal is not to make it impossible for states to leave the EU. Rather, the point is to ensure that it is possible for a state to exit the Union only when there is demonstrable congruence between the will of parliament (through its desire to trigger Article 50) and the will of citizens (through their popular vote). The lesson for EU member states here is to legally institute the mandatory referendum as the appropriate decision-making procedure for leaving the EU. As the future is unpredictable, this is worth doing even for those states where there is little or no public desire to withdraw from the EU.
The way forward for the UK
But what of the lessons for the UK, now that the deed has been done? If ad hoc referendums are prone to legitimacy crises, then the wisdom of holding a second Brexit referendum is highly questionable. Certainly, any attempt by Parliament to force another referendum would be delegitimised in the eyes of many who voted for Brexit. The perceived fairness of democratic procedures is crucial to ensuring that democracy can do its job of peacefully managing conflict. Just how far a tarnished second referendum could (peacefully) manage conflict is a high stakes gamble. This is not a question of a fair procedure being held hostage by the threat of violence. It is rather a question of how we can expect citizens to maintain trust in the fairness of democratic procedures that are uncertain.
On the other hand, it might be argued that a court decision ruling that the European Act does in fact require a referendum on the Brexit agreement would result in a mandatory rather than an ad hoc referendum. In one sense, this is true. But in another sense, if the intention of the European Act was to provide for mandatory referendums pertaining to issues of withdrawal, such as the need for a withdrawal agreement, then the clarification of the court would be hardly required. Any decision by the court in favour of a referendum on the withdrawal agreement, where the option to remain in the EU was tabled, would be met with no less virulence by Brexit supporters than if it was proposed by Parliament. The only choice in a subsequent referendum that would be acceptable to many citizens is that between what the UK and EU actually agree in the withdrawal agreement and no deal whatsoever.
From the perspective of attempting to peacefully manage conflict, if the Brexit vote is to be revered or mitigated in some way (e.g. by remaining in the Customs Union), then it is best done by political representatives. The justificatory force of representative politics has a much higher chance of success in this regard than the wilful force of yet another vote.
Note: the above is partly based on arguments developed in the author’s article published in the European Law Journal.
Joseph Lacey is Junior Research Fellow in Politics at the University of Oxford. His recent book, Centripetal Democracy: Democratic Legitimacy and Political Identity in Belgium, Switzerland and the European Union (2017, Oxford University Press), explores questions of democracy and identity in multi-level political systems.
All articles posted on this blog give the views of the author(s), and not the position of LSE British Politics and Policy, nor of the London School of Economics and Political Science. Featured image credit: Pixabay (Public Domain).
The next Brexit referendum should be quite different from the last.
It should be held early in the next government after the General Election that follows parliamentary defeat of the present Government.
The new referendum could be
i Advisory/informative – non binding on Parliament / Government
ii 4 choices – It is not a simple black and white issue
iii No complicated voting is required. A simple cross in the box for your preferred outcome will suffice.
iv There will be no winning/losing side. (in all probability)
The referendum choices could be
1 The Brexit Deal as proposed by the Government
2 A ‘No deal’/WTO exit.
3 Further negotiations with Brussels
4 No Brexit (an exit from Brexit)
Whatever the result, it would inform the Government, and provide a democratic basis for a new, or similar, policy.
Parliamentary sovereignty would be retained.
’No winners/ losers’ would help to bring people together.
Why not simplify your multiple choices even further?
Here is what i think you really mean:
REFERENDUM ON EU MEMBERSHIP
Q 1) Do you want the UK to Remain in the EU – Yes – No
Q2) If you Voted No to Q1, then You Vote will be ignored.
Much is made of the 51.8%, but the challenge for us all is that there is no final Brexit outcome that will attract anything approaching 50% support.
Is this suggested lack of 505 got the same predictive authority as that Leave could not win at all?
48% awere not ardent fanatical Remainers but very reluctant ones being cowed and conned by the Project Fear campaign. The vast majority of the Electorate want the Government to get on with it and an increasing proportion are happy with No Deal.
What specific deal do you think would be most popular?
What will be the implication of your preferred deal for jobs, and industry, and will we be better off or worse off? Better or worse public services?
What are the implications of your preferred deal for Ireland, north and south?
I would be interested to hear, and what percentage of the electorate you expect to prefer your deal.
The referendum for the Scottish Parliament was a good example as it contained two questions:
1. Should their be a Scottish Parliament?
2. Should a Scottish Parliament have tax raising powers?
So the referendum not only answered the black and white question but also indicated the form that the Parliament should take. This meant that much of the debate was about the type or Parliament we should have.
A much better EU referendum would also have had two questions:
1. Should we Leave the EU?
2. Should we Leave the Single Market?
This would have resulted in more clarity and a much better debate. I also think there is a strong case for a second referendum not of course on the first issue, which is decided, but on the second issue.
38% is not really a vast majority, nor is 51.8%. And, yes, the question was simple enough, but the ramifications from aviation to agriculture to nuclear power are staggeringly complex. How many of the decent honest xenophobes and pensioners wanting to bring back the empire do you think have even heard of Euratom. This is why we have politicians lo make these hideously complex decisions for us.
Still all the studies show that the areas that’ will be worst hit will be the poorer areas, where the Brexit vote was higher. How ironic.
…if the Brexit vote is to be revered…
I will never revere it under any circumstances. I would be glad if it were to be reversed, however.
Hard luck – far too late for that!
I was partly convinced by Joseph Lacey’s point, not his argument, until the final sentence as to ‘mitigate or revere’ the referendum result by political representatives is code for Remain, ie untrammelled by the result and voting for their career prejudices which is exactly why the result was clearly and legitimately for Leave.
Part of Lacey’s argument has been paraded in the Lord’s debates on Art 50, that somehow ‘ad hoc’ referendums are a form of political manipulation which are used to support “Government By Plebiscite” especially by auhtoritarian and totalitarian regimes – that may be true however, this is not so in the democracy of the UK. This is so because such plebiscitary regimes always ensured a Yes for their proposals and in this case the answer was a resounding No. The analogy therefore breaks down.
However, I take issue with his principal argument that ‘ad hoc referendums’ are somehow illegitimate because the ‘issues are too complex’. The issue was simple, Remain or Leave the EU; it is a delegitmising smoke screen to hold otherwise and to propose the ‘Art 50 legislation’ precedes a referendum which follows after further negotiations by parliamentary representatives / government to provide a package deal which the electorate would actually be voting on would never happen precisly because these same institutions would have still argued for Remain in such a referndum on the alleged package being the only successful outcome – that is precisely the same as ‘Government By Plebiscite’ with the intention of gaining electoral approval for the ‘complicated issues’. That was what Cameron was attempting to do by calling the referendum but there had to be a very detailed reform of the relationship between the UK and EU which Cameron failed to deliver. It was that ‘packge’ of smoke that Cameron bet the farm on ie ‘No Reform Whatsoever’ , indeed he made nothing of it whatsoever in the his Remain Campaign. The EU deligitimised itself and its UK acolytes by the very process of refusal to reform in any meaningful way or being prepared to ameliorate the rules for its second largest member.
Let us just remind ourselves of the staggering victory the people of this country had over the ENTIRE Establishment – every one of them from the vast majority of Political Classes as the major parties and the smaller Nationalist wannabees, the career Civil Service, the Big Brother monopolistic CBI Businesses, the entire Groves of Academe and their associated Swamps of Education, the Quality Press, the Bigoted Broadcasting Corporation, along with its ‘independent’ rivals and their special ‘dependency class the Commentariat, also the alleged Comedians with their snarling prejudices, the Luvvies of the Glitterati and Culturatti and their associated hangers on of the ‘Sports Personalities’, all of them, ALL, got the biggest Collective Kick in the Crotch and then up the Backside from the vast Majority of the Electorate who turned out in the largest proportion and numbers ever seen in our Country.
This was achieved not only against the EUroFantasists but also in no small part despite the unremitting propaganda which turned out to be so shallow that even Spending Twice as Much on the Remain side (that does not include the Government Leaflet neutrally explaining we Must Remain – for which Cameron should be Surcharged) as on Leave and We Still Won!
John you raise some interesting issues, not least the difference between an ad hoc referendum and a mandatory one. You don’t however comment on the fact that the EU referendum held in 2016 was an advisory referendum, had no legal force and was merely a political device to appease the right wing of the Conservative Party.
You also ignore the fact that Article 50 of the EU Treaty says;
“1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”
Only parliament can make the decision to leave the EU, as it is supreme, and so far has not done that. So the UK has not satisfied its own constitutional requirements and the government has no legal basis for its present course of action.
Ian Cox – Who is ‘John’ ? The author is Joseph Lacey! His point seesm to be that Referendas to join the EU are alright, but to Leave are illegitimate.
As to your comments: -Firstly if you had bothered to read my comment you may realise that Lacey’s distinction between ‘mandatory’ and ‘ad hoc’ referenda is specious and promoted merely to advance that the Brexit referendum was illegitimate. A referendum is a referendum and either variiety are initiated by Parliament – if in fact there is any real distinction at all as proposed by Lacey.
Secondy, the necessity of calling the Referendum was not “merely a political device to appease the right wing of the Conservative Party” it was called because of the electorate’s pressure to have the issue decided on by a democratic mandate when it voted to make UKIP the largest UK party in the 2014 EUroParl Elections, pushing the Governing and Opposition parties into second and third places. Furthermore, the Referendum was originally proffered by Cameron during the 2015 General Election because of that, but could not be held back from being implemented (Queen’s Speech/ Manifesto committment) when UKIP when UKIP further eroded the two main party votes by gaining 25% of the popular poll a total higher than the combinedvote for the SNP landslide and the LibDem collapse in that Election – although FPTP ensured only one UKIP MP was returned to Wesminster against the almost 60 of SNP/LibDem.
Thirdly – the UK Parliament has made the decision to leave the EU, as you may not have noticed that is what the Art 50 Notice does as required in the European union (Withdrawal) Act 2017. That is the legal basis for its “present course of action” of negotiating arrangeemnts of withdrawal under the provision sof Art 50 , if it can do so in a worthwhile way but it need not do so. This legal constitutional requirement was the subject of the Miller v SoS-DExEU in the Supreme Court which held that the Royal Prerogative/ Executive privilege was insufficient.