Winner of the New Statesman SPERI Prize in Political Economy 2016

Saturday, 4 March 2017

Does democracy require implementing the referendum result?

We all know the EU referendum was not legally binding on parliament. That is not true of all UK referendums: the referendum on using AV did require parliament to enact whatever voters decided. Despite the lack of a legal requirement, there remains a powerful political argument that parliament was nevertheless duty bound to implement the referendum result. It is an argument that is often invoked by both government and opposition MPs. Now I have no doubt that in reality other motives are important, perhaps decisive, but because political arguments can be persuasive, it is important to debate this one.

The clearest argument along these lines comes from a post from Richard Ekins, who is a Professor of Law at Oxford University. He writes
“Parliament made clear that the decision about whether to leave the EU was to be settled by the referendum. There were good reasons, outlined above, why Parliament should not permit Brexit otherwise than by way of a referendum. Even if one denies all this, one should still accept that a referendum once held settles what should be done. For the decision to proceed thus is itself an important public decision that fairly governs how we jointly are to decide. That is, Parliament having decided to hold the referendum, and the public having participated fully in it, the result should be respected and not undone.

Political fairness and democratic principle require one to respect the outcome of the referendum even if one is persuaded that Brexit would be a very bad idea. One might think it wrong to hold the referendum, but it was held – and Parliament invited the people to decide this question. ... In short, the important constitutional question of whether Britain should remain in the EU was fairly settled by public vote.

The proposal to ignore or undo the vote is unjust. It bears noting that the relatively powerless in our polity – the poor – overwhelmingly supported exit. Ignoring the referendum would be particularly unfair to them.”

Note that this does not say that people like me should shut up about the harm that this action will cause. Instead it says that parliament, having invited people to decide, should respect that verdict. To do otherwise would be highly undemocratic, and would be particularly unjust to those who, for well known reasons, might justifiably claim that they are not well represented by the sovereignty of parliament. Arguing that the Leave campaign told lies, or that voters were deceived, does not seem to be a compelling argument against this, as exactly these charges can and are made after general elections

To help see why Ekins is wrong, it is useful to look at his discussion of the claim by Ken Rogoff that the “real lunacy of the United Kingdom’s vote to leave the European Union was not that British leaders dared to ask their populace to weigh the benefits of membership against the immigration pressures it presents. Rather, it was the absurdly low bar for exit, requiring only a simple majority.” But Ekins’ response strikes me as particularly weak. He essentially says parliament could do this because it has done it before. He goes on to say that there is “nothing at all perverse in Parliament choosing to make provision for a clear decision on point by way of a single referendum, inviting and encouraging public deliberation that culminates in a moment of clear and authoritative decision.”

This strikes me as completely ignoring Rogoff’s point. How can a 51.9% vote on one particular day represent a “clear and authoritative decision”. If a general election is close in terms of seats, that is reflected in the balance of parliament, and governments with small majorities and independently minded MPs face constraints on what they can do. What Rogoff is saying is that a referendum which only requires in theory a majority of only a single voter can never be clear and authoritative. Those who lost can justifiably claim that if the vote had been taken a day later or earlier the result could have been different, and we know they could be correct. The fact that UK governments have made this mistake in the past does not make it right. Remember we are talking about what is right politically, not what is right in law, so precedent is far less compelling.

Much the same point applies to the issue of a second referendum. He says: “Parliament having chosen already the decision-making procedure, it is not legitimate now to say that this should be set aside. The time for arguing for a two referenda requirement, or majority support in each part of the UK, was before this referendum was held.” He is certainly right that those who had won would think it is unfair to apparently change the rules of the game after the event, much as those who have lost think the whole process is deeply unfair and unjust. I also think that Ekins’ appeal to those who are otherwise unrepresented resonates with many Labour supporters, who feel that such a move would look just like the elite overriding the wishes of the people. (See Owen Jones, who questions Corbyn’s leadership but not his Brexit line.)

Except that is nonsense. If those who voted to Leave cannot get a simple majority in a second referendum when we have a lot more information about what leaving entails then that indicates something very wrong with the initial vote, and not some plot by the elite to cheat them. It is hardly undemocratic to hold a second referendum because the situation has become much clearer. As I have said before, when politicians argue that allowing a second vote is going against ‘the will of the people’ you know that you are in real trouble.

Is that unfair to one side? Of course not, because it is how politics works. Take the Scottish referendum, where Remain won by 55.4%. Just a few years later, and we could well see another referendum. To say that is different because something crucial has changed actually plays into the arguments for a second EU referendum. Unless voters perfectly anticipated the nature of the exit deal with the EU, that deal in itself is a huge and crucial change.

It seems to be neither politics nor fairness dictates that something poorly done in the past should dictate what politicians do in the future, when there is no legal constraint on them changing their minds. Holding further votes when the situation has changed cannot be undemocratic or unfair to anyone. [1]

I think all this is a useful perspective when we go back to the original question of whether parliament is obliged in some way to enact the result of the referendum we have had. Recall that Ekins says: “Parliament made clear that the decision about whether to leave the EU was to be settled by the referendum.” Now I have said in the past that I can understand why an individual MP, who has pledged to let the referendum decide their vote, should feel duty bound to keep their word. But I do question how exactly ‘parliament’ made such a pledge. An obvious way for a parliament to make such a pledge is to embed it into the terms of the referendum itself, as was done with the AV referendum. This was not done on this occasion.

It seems to me, therefore, well within the rights of any MP or Party to say that they do not regard a vote this close as binding on how they should vote. Indeed I would go further. Any MP or Party who thinks, based on the knowledge they have, that those voting Leave will over time regret their decision, has a duty to vote based on his or her judgement, rather than be tied by some vague notion around parliamentary commitment. 

But all this assumes that the Article 50 vote was just about implementing the referendum. It clearly was not just about that. Any sane discussion of the referendum has to recognise that voting Leave gave no guidance to politicians about how to leave. The referendum was not about the Single Market, the customs union etc. What the Prime Minister should have done was to allow parliament to debate the issue of how to leave, which is critical for the future of the UK. No doubt they would have given parliament a lead, but triggering Article 50 could have waited until that discussion had taken place. [2] Theresa May decided not to allow parliament that discussion.

As a result, the vote on Article 50 was not just about deciding to start the leaving process, but it also effectively became the last chance for MPs to express any view on how we should leave. That in effect made the vote a decision to leave the way May had decided, or might decide without recourse to parliament. The moment the Prime Minister did that, any obligation an MP might have felt regarding the referendum became null and void.

This is the crucial difference between 1975 and 2016, and another reason why arguments that appeal to precedent are wrong. In 1975, voters had a clear idea about what both In and Out involved. In 2016 what Leave meant was completely unclear, not least to those campaigning for it. That meant in practice that voters decided on the basis of the form of Leave they expected to happen, or perhaps were promised would happen, rather than the form of Leave the government would eventually choose.

It is for this reason that we appear to have a decidedly undemocratic result. If the referendum had set remaining against leaving for the type of hard Brexit that we are almost certain to have, it seems extremely unlikely that a majority would have voted for that. Yet those who argue that the referendum obliged MPs to vote for triggering Article 50 are in effect arguing for exactly that result. That is neither democratic, fair or indeed wise.


[1] I am sure many would argue that a referendum which came with the promise of a later referendum where you could change your mind would be too great an invitation to those who simply wanted to exercise a protest vote. I will leave that and similar arguments for others.

[2] The more people argue that such an arrangement would not have been practical, the more they illustrate how badly designed the original referendum was. Instead of debating and voting on a specific way of leaving (which could have been chosen jointly by those who wanted to leave) relative to remaining, we got a decision which was far too open ended. As a result, Leave campaigners said during the campaign that voting Leave did not imply leaving the Single Market. Once again, it seems odd to argue that parliament should not try and rectify past mistakes like this for the sake of some imagined commitment.   

14 comments:

  1. Quite right.

    I would go further, and argue that the result of the referendum, while significant for any MP in exercising his or her choice on how to vote subsequent, cannot determine that choice, or else there is no point at all in having any further votes of any kind.

    It would be different if, as in the AV referendum and, I think, the two Scottish devolution referendums (1979 and 1999) there was a Bill, already debated and approved by Parliament waiting only for the trigger of a referendum result to receive the Royal Assent and become law.But a referendum on a proposed course of action, which this was, obliges the Government to pursue that course of action but by no means compells the vote of any MP.

    The proper course of action for any MP who believes that the referendum proposes a course of action damaging to the country in general or his/her constituents in particular, is to vote against it. If the Government cannot then pass the measure, or indeed itself comes to believe the measure damaging, it should go to the country. The question (In/Out in this case) would then obviously be a highly relevant issue in the subsequent campaign.

    For precedent I would suggest the Budget crisis of 1909 when Lloyd George went to the country over the House of Lords' rejection of his "People's Budget". This showed that there is constitutional precedent for using a general election to resolve an issue of competing jurisdictions (then Lords v Commons, now putatively Parliament v Referendum).

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  2. This is a British democracy and I'm still confident that brexit will never happen, indeed May pressing for the hardest brexit possible is part of why it will never happen.

    The debate we are having now is the one we should have had before the referendum, pick a model eg Norway or no model at all. That way the elctorate could make an informed choice.

    The current fiasco we are experiencing is due to the hubris of one man, David Cameron, who has turned the UK into an international laughing stock to settle internal Tory issues.

    I speak of one who is brexit minded.

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  3. "[I]n our polity – the poor – overwhelmingly supported exit."

    If and when Brexit goes wrong, these poor will presumably be told that they voted for it and so can wallow in it?

    Let's get this straight. Edmund Burke, J S Mill, and the human rights philosophers of the 18th century all supported representative democracy not delegation. If it is good enough for the founders of conservative and liberal thought, is this then to argue that this grouping labelled the poor need some sort of special politics to be heard?

    You now have less money than you would have, poor, because there is a crater in GDP since 2008 due to the 2010 austerity, poor, but you voted for it, poor, as you voted to Leave, poor, to fix the crater, poor, even though it won't fix the crater, poor, but you did it to yourselves, poor, didn't you now.

    "14 November. A nauseating picture on the front of the Guardian of Trump and Farage together, with ‘nauseating’ in this case not just a word. It does genuinely make one feel sick."

    (Diary, Alan Bennett, LRB).



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  4. I would not deny that the 51.9% not being a resounding result does concern me somewhat. However, when one gets down to practicalities, I can't imagine what "taking account of the concerns of the 48.1%" would look like. What would that mean?

    If a second referendum were held it seems to me that you might well get much more of an asymmetry in motivation than the first which posed a binary question. Those who voted Leave might well be confused and be unable to understand what was the purpose, while those who voted Remain are much more likely to see such a referendum as an opportunity to stymie the whole process and be instrumental in overturning the first result; so in effect we may have a contest between the confused and the determined.

    Even if we had a second referendum what would that mean? If the answer was "No" it would undermine and fatally weaken any negotiating stance the government had adopted and might ultimately result in a far less optimal result ( I realise that you think the only optimal result is staying but I'm talking about a choices between different bases of leaving not the original binary choice). I would not deny that the result could well be as you suggest but that, in itself would be extremely damaging.

    It is also implicit in your view that the government might well adopt the "hard" Brexit which you so disagree with. But this implicitly assumes that the government are not acting in the best interests of the country in which case we have far more substantial problems than a slight democratic deficit.

    I would also dispute your contrasts between the 1975 and 2016 referenda. I don't think the one in 1975 was at all justified as we had only been a member of the EEC for two years and I could see no basis for it.

    However, in 2016 we had over forty years of membership behind us and were able to see much more clearly what membership meant; the formation of the EZ and the positive pursuance of the ever closer union as opposed to it being an organic process arising out of trade were major changes.

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  5. I am amazed to see SW-L quote Rogoff, the economically illiterate economist who lauded macromedia during the recession. I.e. Rogoff with his side-kick Reinhart advocated consolidation / austerity during the recession.

    As to Rogoff's point about 51.9%, the answer is that there was never a vote to take the UK into a political union: we sold the EU on the basis that it was just an ECONOMIC union. People who get the UK to do X or Y on the basis of no vote at all are hardly in a position to preach sermons on voting when it comes to undoing X or Y.

    And finally I couldn't care less what the costs of exiting the EU are because the EU is now a fascist organization: it threatens to prosecute politicians like Le Pen who don't abide by the "correct" political views. Hitler used to do that.

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  6. I will partly side with Edkins here. You cannot hold a referendum and not act upon the results: it not being a plain poll was reason enough for voters to expect it would have some political weight. Neither can you repeatedly ask the population about similar questions: referenda aren't a tool you use until you gain satisfaction or to which you respond as you please. This is just plain bad faith. Moreover, you make a point regarding what elected officials might believe regarding the intentions of people which I think is plain wrong. You can't interpret votes as mistakes people will regret -- even if it is very likely true.

    In my opinion, the main problem here is that we've done a piss poor job at sensibilizing the population to proper intellectual work. We have answers to the consequences of many policy choices, but it's hard for people to tell apart what is good from the cloud of nonsensical noise that emantes from politicians and opinion journalists. The true problem is that Trump and Brexit can exist -- so you sew and so shall you reap.

    The only place where I think you are right is that a vague referendum with a weak majority is a soft mandate. If unclear about the specifics of leaving, there is space to both respect the vote and limit the damages -- and you could have had another referendum on the specifics or a debate on how to leave.

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  7. Brexit is a bad mistake, as was holding the referendum.Everything S W-L writes here is eminently rational. I have to differ though because, as he notes, the referendum result holding is not based on reason, law or constitution, but we do need consent. We have to been seen to begin this pointless self-harm process as we lost the referendum and to placate the visceral contempt for us 'liberal elite' and dangerous rise of 'patriotic' fervour. The anger from throwing back in their face their ' glorious victory' on 'independence day' will not be felt by Oxford dons but by many who are in closer proximity to the anger it could unleash. A soft Brexit must be fought for, poles do suggest a majority for it, it would be far less damaging, and the landscape might even change, but we 'Remoaners' need to consider that there could be unpleasant consequences for others in being seen to thwart 'the will of the people' as bogus as that claim is.

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  8. Quite right to insist that Parliament must own Brexit. But the difficulty for MPs is not simple. The referendum result reflects the political volcano which dominates British politics even when it has been dormant. Wishful thinking to hope that the referendum would fix it, and wishful thinking again to think that there is a mechanical solution now. My own view is that those who voted for Leave, especially those who have not shared equitably in the benefits of GDP growth and the liberalisation of global trade, are quite wrong to believe that it is in their interests to leave the single market and the customs union. However badly they have fared since 1975, it is quite probable that they will now fare more badly still. But neither the EU, nor successive UK governments have paid more than token attention to their concerns or their welfare during this entire period. Some will say, well nothing could be done and the poor will suffer what they must. Many others will say these concerns are exaggerated and those now complaining just don't know how good they've had it. I say that the pent-up force of this Brexit volcano is a function of poor democratic and macroeconomic responsiveness, for which we will now all pay a hefty price, in arrear. I am impatient for debate to move beyond the distraction of the European question to the underlying issues.

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  9. the vote [was] a decision to leave the way May had decided, or might decide without recourse to parliament.

    It didn't get much attention, but this post on my blog made a very similar point. The Article 50 process has been monstrously un- and even anti-democratic - we've effectively seen the ouster of Parliament by the executive.

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  10. One disturbing consequence of the referendum is that many previously impeccably liberal people I know now express doubts about democracy. I've heard calls for some sort of minimum educational standard as a qualification for voting. I suspect this view is quite widespread but people are understandably wary of expressing it.

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  11. Your system is a bit different than that from the US. But the same problems with referenda that you are experiencing now exist in the US and have for some time. First, the presumption is that all sides on the issue will play fair. When one side doesn't play fair and the media isn't objective but instead plays to one side, you can't have an educated electorate, and without that you have nothing.

    Second, no interests tend to be more focused and replete with money than the yeses. Third, "government" isn't supposed to take a position and fund a pro position.

    Fourth, usually political interests that set up the stage for a referendum create conditions that are counter to success, but instead set the stage for failure. This is especially the case with transit and most tax related referenda that aren't related to parks. And it's especially hard to move transit initiatives forward in places that are automobile-centric with limited (recent) experience with high capacity transit (e.g., Tampa Bay area, Detroit, etc.

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  12. A really interesting speech on "The democratic duty to oppose brexit" was given by Prof. Weale (UCL) ( https://www.ucl.ac.uk/political-science/news/articles/121216) Here are to passages useful for this discussion:



    "What then should we conclude? The answer is that we really cannot sensibly and intelligibly use the language of the will of the people in respect of the referendum result. Even if majority voting were taken to be the best way of discovering the popular will, the 2016 referendum result would not meet the conditions for validly claiming that the popular will had been expressed. This is quite apart from any disquiet that people may have expressed about the way in which the campaign was conducted. Even if the campaign had been conducted with scrupulous attention to fact and logic, the way in which the alternatives were framed precludes an inference to a popular will established by majority voting"

    "what type of political obligations does a lawful statute imply? If one thing is clear in democratic theory, it is that there is no obligation to refrain from campaigning against or opposing a piece of legislation that has been validly adopted. There is no democratic obligation simply to accept the result of a referendum established by statute, since there is no obligation to give up campaigning against and opposing a political outcome with which you disagree. To suppose that there is such an obligation that would imply that there is no right to campaign for a change of legislation or change in government policy. "

    "In the UK’s parliamentary democracy, no parliament can bind its successors. The 2015 UK Referendum Act cannot be taken to lay down obligations lasting into the indefinite future. Indeed, in the case of the UK’s withdrawal from the EU, there is a good argument for not taking the referendum result to be even a short-term guide to obligations"

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  13. "If one thing is clear in democratic theory, it is that there is no obligation to refrain from campaigning against or opposing a piece of legislation that has been validly adopted. "

    Quite right. I cannot understand the pusillanimity of the Labour leadership. Had they just fought a General Election and been defeated, would we then have a three-line whip on every proposal the Conservatives brought forward just because it was in the manifesto? If a referendum were called, and won, rejecting any man-made contribution to global warming would our MPs feel obliged to vote for the consequent, climate-destroying policies?

    I can't help feeling that Mr Corbyn's position is influenced, perhaps sub-consciously, by his long-standing opposition to the 'capitalist ramp' that was the Left's view of the Treaty of Rome.

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