affiliated to the International Association of Constitutional Law
In his post of last week, Richard Ekins argues that political and legal elites should resist the urge to ‘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’. The many and varied legal and political arguments offering ways to soften, reverse or ignore the vote to leave the EU cannot avoid the central political fact that the result now has a huge weight of political legitimacy behind it. I want to sound a note of caution about the idea that in a democracy voters cannot change their minds. I think it is unlikely that a decision to remain could have democratic or political legitimacy after the referendum result, but for the reasons I offer here I believe that that is not quite the same as saying that it is impossible, or that debate to that end is improper.
Changing minds in democracy theory
Richard rightly points out that the referendum has been highly divisive, producing clear class and generational divisions that will be difficult to heal. We ignore or demonise leave voters – and the discontent that motivated them – only at great cost to the political system. It would be an equally serious constitutional error were this to end in the courts. To resolve a question of political identity in a courtroom would be deeply damaging to the independence of the judiciary and the legitimacy of politics more broadly.
So far I am with Richard, but I disagree that the constitutional politics of this discussion end with the referendum vote to leave. Richard argues that the referendum vote must now be respected and in effect argues that it is irreversible: ‘Political fairness and democratic principle require one to respect the outcome of the referendum now even if one is persuaded that Brexit would be a very bad idea.’ Democracy is vague and conceptually spare (as, for that matter, are ‘legitimacy’ and indeed ‘politics’) and bald appeals to ‘democracy’ require caution. Normally, they act as placeholders for other political ideas. In modern constitutional democracies, democratic rule by the people (rule by each person equally) is achieved in a host of ways: elections, referendums, political horse-trading, and peaceful protest amongst them. Democracy is practiced, expanded, defined and redefined by law and politics. Democratic decision-making is the source of political legitimacy and authority in a democracy.
But there is nothing about the concept of ‘democracy’, vague and contested as it is, that suggests that decisions, once made, cannot be unmade. In abstract, if a referendum results in a vote to do something that turns out to be deeply damaging or impossible – to spend the national budget on magic beans or the Emperor’s new clothes – there is value in its retaining the capacity to vote again to do the opposite. Some decisions will be irreversible. A decision to spend £100 on X rather than Y will leave no money left for Y. But this is a feature of the decision made rather than something innate in the idea of democracy. As a matter of practice, repeated referendum votes are a feature of countries that we regard as democracies. ‘When the facts change, I change my mind’ as Keynes put it. Electorates do the same. Ireland and Denmark have each both voted twice on EU treaties. Ireland has voted repeatedly on the issue of abortion in recent decades, and is likely to do so again in the next few years. Political legitimacy in a democracy is fluid rather than a moment frozen in time and space. This is especially true in Britain’s political constitution which is defined so substantially by politics. This capacity for change is a strength. A democratic system that is incapable of responding to changes of fact, context or popular mood damns itself to decline and demagoguery.
The politics of the UK’s constitutional moment
The Brexit referendum was a ‘constitutional moment’: a referendum proposed to heal a long-standing fissure over Europe that has deep roots in British politics and British identity. It was billed as a once-in-a-generation decision. It is constitutionally possible for Parliament to ignore it, but to do so merely because those who lost the argument found the result unpalatable would be politically and democratically unacceptable. This does not, however, mean that debate about the issue must now end. Leave campaigners made it clear prior to the Brexit referendum that they would not let the matter rest if the decision did not go their way. That’s politics. Remain campaigners are now doing the same. That’s also politics. It is part of democratic politics that politicians and activists argue for a position and try to secure public support. The requirement that those who are disappointed by the result of the referendum must now be quiet seems to me to be wrong as a matter of principle and also in these very unusual circumstances of constitutional crisis. This approach requires voters on all sides to accept that political debate has now been settled and frozen in a constitutional moment when the current political and economic turmoil suggests exactly the opposite. This constitutional moment is not yet complete.
Richard offers the example of the Scottish independence referendum in 2014, arguing that it would have been wrong to put the decision a second time had the vote gone the other way. I quite agree, but Scottish independence was a very different kind of question. The EU referendum debate did not produce anything like a clear vision for ‘Brexit’. There are radically different visions of ‘leave’, from buccaneering libertarianism to xenophobic nativism to radical redistribution (sometimes, and incoherently, all three at once) that reach far beyond external relations with the EU. Some barely differ from the arrangement that exists with the EU at present. Some are – in the technical legal sense if in no other respect – revolutionary (see here and here). Key promises made during the campaign were abandoned by leaders of the leave campaign the moment the result was announced. The political legitimacy of the result has been undermined by the fact that key factual arguments made in support of the leave campaign were demonstrably false. There are, for that matter, radically different views of what ‘remain’ might mean should the matter be re-opened. In the case of Scottish independence the uncertainty was significantly less: there are clear precedents for what statehood means and for what secession from the UK entails in the examples of Ireland and the commonwealth countries. A vote for Scottish independence would also have been extremely difficult to unwind in practical terms. By contrast no one seems to know what Brexit should look like and all the distinct visions for Brexit are profoundly politically salient, reaching into matters not just of identity but of domestic politics, economics and human rights.
The Brexit referendum has provoked a constitutional crisis. The status of Scotland and Northern Ireland is now in doubt – a second Scottish independence referendum is now on the agenda in these changed political circumstances – and the party-political system, the normal mechanism for conducting democratic politics and the bedrock of so much of the modern political constitution, has broken. Unlike in Scotland, where there were clear party-political divisions on independence, the two major parties at Westminster do not currently compete along the now key fault-line of Europe and a significant majority of MPs were not in favour of a leave vote. The inability of the Tory party to reach an internal peace on Europe prompted the referendum. It now looks likely that its stance in any negotiation with the EU – its choice from the wildly varied menu of Brexit options – will be determined by an internal competition between Tory leadership candidates and decided by 150,000 party members who make up a tiny 0.35% of the electorate who voted in the referendum. The Labour party has been shattered, perhaps permanently, and is currently unable to offer any real opposition to whatever the newly elected leadership of the Tory party might propose. This state of affairs does not feel any more intuitively democratic than does the prospect of ignoring the referendum result.
For democrats there is no straightforward way out of this. A crisis of political legitimacy is now inevitable. There will be a crisis of legitimacy if the political class simply ignores the vote to leave the EU. But given the division within the leave side and the large body of disappointed voters on both sides of the debate it is doubtful that there is anything like a democratic mandate and political legitimacy for any one viable stance in relation to the EU. Should an unelected Prime Minister approach the result of the referendum as a ‘winner takes all’ endorsement of his or her preferred flavour of Brexit and proceed accordingly there will be a different crisis of political legitimacy.
The constitutional politics of this new world require a general election to secure democratic legitimacy for the next step. Within the context of such a general election the political parties will have to compete for their visions of ‘leave’ and perhaps ‘remain’ too. Richard is correct that those on the remain side must proceed in the knowledge that a majority of voters were against them last Thursday. This was a constitutional moment – no ordinary political decision – and deserves special respect. Having played by the rules of the referendum and won, leavers have political legitimacy and political momentum on their side. I find it hard to envisage circumstances in which the referendum result itself could be reversed unless there is some very radical change of circumstances. It should go without saying that a decision to reverse the decision would require an overwhelming popular endorsement. A really overwhelming majority for the remain side in a UK-wide general election and in each of the countries of the UK taken separately might do it. A referendum run on exactly the same lines, without any change of circumstances, might not. Yet defining Brexit will remain intensely political. It is not simply a matter of working out the detail. There is nothing inherent in democracy or democratic politics that requires remainers to now stand back from the debate, or that prevents them from offering realistic ‘remain-minus’ or ‘leave-lite’ scenarios to the electorate in order to seek political legitimacy for their preferred course of action. There is also nothing about democracy that prevents remainers advocating a return to the EU should Brexit be completed. That’s politics in a democracy.
Patrick O’Brien is a Fellow in Public Law at the London School of Economics
(Suggested citation: P. O’Brien, ‘The Democratic Legitimacy of Changing Your Mind: A Response to Richard Ekins’, U.K. Const. L. Blog (5th Jul 2016) (available at https://ukconstitutionallaw.org/))