As all the world knows, last Thursday the British people voted in a referendum about whether the UK should leave the EU. The prospect of the referendum encouraged much reflection about the merits of referenda and their consistency or otherwise with parliamentary democracy. The outcome of the referenda has spurred more such reflection, with many lamenting that the referendum was held at all and with some even proposing that the vote should be ignored or flouted or otherwise circumvented. It is hard to imagine a more obvious way to flout democratic norms and to inflame political controversy. This post briefly outlines some thoughts on the legitimacy of the referendum process and the reasons to respect its outcome. Nothing herein turns on the merits of the vote itself.
Referenda and representative government
I am a strong supporter of representative, parliamentary democracy. Parliamentary sovereignty is a very good constitutional rule, at least in Britain and other places with a mature political culture, and the ordinary legislative process is a good way to make law. By contrast, the electorate is not a capable lawmaker in general: direct lawmaking by (citizen-initiated) referenda often ends badly. Representative democracy is not a second-best form of direct democracy and satisfaction of popular preferences is not the object of good lawmaking (the common good is). I have argued all these points in my work on legislative intent and in various papers on representative democracy and self-government. And I have also spoken publicly in opposition to citizen-initiated referenda in New Zealand.
Nonetheless, there are times where it is reasonable for Parliament to put some public question to a referendum, especially constitutional questions that concern national identity. The case is strongest when the decision is practically irreversible, where there is a standing possibility that many people’s views may not be adequately represented in the ordinary legislative process and where accountability after the fact is insufficient to secure trust in the legislative decision. Questions about the constitutional identity of the state itself – say about Scotland leaving the UK or New Zealand joining Australia, etc. – require broad support. They are importantly different to decisions about particular laws, where reversal after the next election is always possible, and are instead more fundamental self-constitutive choices. This does not make the use of referenda axiomatic but it does make it intelligible. Holding an election that is fought, more or less, over a single question is perhaps an equivalent (as with the general elections following the Lords’ rejection of the People’s Budget in 1909/1910, which led to the enactment of the Parliament Act 1911).
The propriety of holding this referendum
It was quite proper for Parliament to put the question of whether the UK should remain a member of the EU to the British people for decision by way of a referendum. Recall that the referendum was held to honour a manifesto commitment, which was itself a reasoned compromise within the Tory party, whose MPs disagreed about the question of remaining in the EU but who were able to agree that the people themselves should decide. The division in the Tory party reflects, imperfectly no doubt, long-standing, widespread public scepticism about the EU as a political project. Still, those many voters keen on outright exit from the EU have had little voice in Parliament. The creation and partial electoral successes of UKIP owe something to this fact and, by posing a threat to Labour and the Tories, prompted a political response. Further, the UK has been increasingly detached from the EU since it decided not to join the Eurozone, the members of which may need fiscal and political integration if the common currency is to survive. Thus, ongoing tension about whether the UK ought to remain a member of the EU has in some sense been inevitable.
It was right to hold a referendum in 1975 about whether the UK should remain in the EEC. It would have been reasonable to have held multiple referenda at various stages in the sequence of Treaty changes, as other states have had and as the EU Act 2011 now requires. It was reasonable for a major political party to undertake to put this long-running question about whether Britain should remain to the people to decide. On forming a majority government, the PM and his cabinet were honour bound to support a referendum. If the PM truly believed Brexit threatened global war, then perhaps he should have betrayed this trust and/or explained that conditions had changed (if he thought they had). But in this case he would, understandably and I dare say legitimately, have been deposed by his party, with his successor delivering on the promise: the PM is not the party’s master.
Reasons for respect
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. There was a lengthy, wide-ranging, high-powered campaign that culminated in high public turnout and a clear outcome. The remain camp had a fair hearing: it was led by the PM and most of cabinet, with the support of most MPs with much business and international support. 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. It would not be consistent with treating them as free and equal persons entitled by the law and constitution of their land to a share in self-government, not least since the rationale for ignoring the process in which they participated has so often been framed in terms of outright contempt for them. Any failure to act on the decision made in the referendum that the UK should leave the EU would be a profound betrayal. It would be no mere failure to recognize the perspective of the dispossessed, but would be the betrayal of holding out to them, as to others, a question for decision and then ignoring their decision because one does not like it.
Kenneth Rogoff argues that a single referendum should not license fundamental constitutional change. No such stricture has limited fundamental change before. Britain’s consent to the ongoing and far-reaching expansion of EU competence has been by simple agreement of the Crown. This capacity is now limited by the EU Act 2011, but still it is only an ordinary referendum that is required. Quite apart from any referendum, Parliament has authority to direct the Crown to withdraw Britain from the EU and 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.
Parliament could of course have required two successive referenda and/or a referendum plus parliamentary support, etc. This would not have been irrational, although it would have been thought by many in Parliament and the public to be unfair. For it would load the dice too much against exit and thus would frustrate unjustly the decision of those who favour exit, which is not a position that in a democracy can be ruled out by fiat. In any case, 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 – indeed, before the European Union Referendum Act 2015 was enacted.
In the last few days there has been much discussion about the prospects of Parliament ignoring or defying the vote. And a petition is underway to hold a second vote. If or when Parliament considers this petition, its clear response should be that the dissatisfaction of some with the outcome is not a reason to repeat the exercise. In a recent article in the Guardian, David Lammy MP objects to how the leave campaign was fought, to what a new PM Johnson might do, and to the impact on his constituents, the vast majority of whom voted remain. Assume all these points are true: they are all irrelevant because they beg the question – unfairly – against the 33m who just voted. The logic of the position seems to be that Britain should not exit therefore a decision that it should exit will not stand. This is not how a democracy should conduct itself. Parliament invited the electorate to decide this question and MPs, and others in public life, should respect the decision.
There are very real risks in this flirtation with flouting the decision. The risks are compounded by the rhetoric of much of this discussion, which is often frankly contemptuous of (“stupid, xenophobic”) working class voters and (“senile, selfish”) elderly voters. It is just possible that the interests of working class and middle classes come apart here. And even if, say, working class voters misconceived their material interest, they might reasonably have acted for other ends. In any case, we do not or should not live in a state where disappointed middle class voters get to reverse the decisions they think their ill-informed inferiors have taken. The same holds for expressions of anger at older voters: this is neither civil nor just even if Brexit is disastrous. Older voters have as much right to vote as younger; there is no warrant for assuming they do not have the common good (including the interests of younger voters and children) in mind; and indeed in voting leave they may have been voting selflessly against their own material interests.
Reciprocity and responsibility
If Scotland had voted to leave the United Kingdom in 2014 should the UK have put the question to Scots again on the grounds they were wrong? No. If one chooses a referendum as the way to make a public decision of this kind one lives with the outcome even when one is on the losing side. Imagine that Thursday’s vote had been to remain in the EU. Would it conceivably have been legitimate for leave campaigners to insist that the decision should not stand unless it was confirmed in a second referendum later in the year, or that Parliament should ignore the vote and initiate Brexit anyway? No. Almost everyone now urging that we ignore or undo the outcome of the referendum would have rejected any such proposal out of hand. It is to be hoped that when tempers cool, the obvious unfairness of this action – its basic failure of reciprocity – will be apparent and it will be abandoned.
Plainly the UK now faces many very tricky questions. But it has made a decision to leave the EU, as the EU clearly recognises, notwithstanding that as yet Art 50 has not been invoked. It is not wise or just to try to block implementation of that decision, to circumvent it. To his credit, Sir Jeremy Heywood, Cabinet Secretary, has advised civil servants of their duty to stand ready loyally to implement the decision whatever their views of its merits. Likewise, the superior courts were commendably restrained during the referendum itself, refusing the invitation to unsettle Parliament’s choice about who might vote. Many other persons in public and private life have responsibilities which they might neglect or subvert in order to bring about conditions in which the people regret their decision. One hopes this temptation is resisted. Heywood is right and MPs should see their duty likewise, while continuing to argue about detail. But temperate, measured action will be unlikely for so long as people treat other voters as fools or monsters or deny the outcome of the fair and legitimate decision-making process which they did not otherwise contest.
Richard Ekins, St John’s College, University of Oxford
(Suggested citation: R. Ekins, ‘The Legitimacy of the Brexit Referendum’, U.K. Const. L. Blog (29th Jun 2016) (available at https://ukconstitutionallaw.org/))