UK Constitutional Law Association

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Stephen Tierney: Was the Brexit Referendum Democratic?

Stephen TierneyThe past three weeks have seen a steady backlash against the referendum. It is understandable that many don’t like the outcome, after all 48% voted for Remain. But beyond disagreeing with the decision to leave the European Union, was the process so faulty that it can reasonably be declared illegitimate? I would argue no.

I make an immediate exception for those who, as a matter of principle, oppose the use of referendums. The appropriate balance between representative and direct democracy is both delicate and contested and it can be validly argued that referendums have no place in a properly functioning parliamentary democracy. But if the principle of using referendums in constitutional decision-making is accepted, as it widely is, then we must assess the Brexit referendum by its mode of organisation and the legality of its process. By this measure it is hard not to conclude that the referendum accorded with international standards for direct democracy, that it was conducted in accordance with law and that it was effectively regulated. On this basis I argue that the result is one which citizens should agree to, even if it is not one they agree with. The inevitable, if unpalatable, conclusion is that the outcome was lawfully arrived at and should be faithfully implemented.

Objections to Referendum Democracy

Two main concerns with the very idea of referendum democracy are relevant to the debate. One is that referendums, by definition, lend themselves to manipulation by the elites who organise the vote. A second is that referendums have an in-built tendency merely to aggregate pre-formed opinions rather than to foster meaningful deliberation. I have argued elsewhere that these are in fact problems of practice rather than principle which can be largely overcome, as they were in the Scottish independence referendum, by good process design. This is not to suggest that a referendum will thereby become a perfect exercise in public reason, but simply that the deliberative credentials of a well-constructed referendum can match or exceed those of representative elections, particularly when we consider the latter’s own imperfections. I argue that by this measure the Brexit process, while not without its deficiencies, is not an example of bad referendum practice.

Elite Control and the Brexit Referendum Process

An implicit assumption behind many critiques of referendum democracy is that the executive can brazenly model the referendum process to suit its objectives. Certainly we must recognise that the Brexit referendum was called at the discretion of the Government. There is therefore a question-mark about the absence within the UK constitution of a full delineation of the matters which should or should not be put to the people. But if this is the measure by which the legitimacy of the Brexit referendum is to be questioned we must lay the same charge at the door of every UK referendum; for example, the AV referendum originated from a deal to form a coalition government. It is also the case that the House of Lords Constitution Committee considered this issue carefully in 2010 and in the end concluded that it was for Parliament on a case by case basis to determine if and when referendums ought to be held: ironically the justification for this was the preservation of Parliament’s preeminent constitutional position, a bolstering of representative over direct democracy. In any event, even if it is the case that some legislative regulation of what is a suitable subject to be put to referendum is constitutionally appropriate, a strong argument has been made that EU membership is an issue of such salience and long-standing controversy that it merited a national vote.

Beyond the initiation issue a rigorous statutory system, based upon the Political Parties, Elections and Referendums Act 2000 (PPERA) and the carefully-tailored European Union Referendum Act 2015, served to regulate the running of the referendum. The setting of the question is a good example of how robust this statutory regime was. The 2000 Act imposes a duty on the Electoral Commission to test the intelligibility of any referendum question. The Commission, in its review of the Brexit question, recommended a change to the original wording, which asked “Should the United Kingdom remain a member of the European Union?”. This was deemed to be a leading question. Notably the Electoral Commission’s suggestion of a more neutral question was accepted by Downing Street on the very day of the Electoral Commission’s recommendation.

The 2015 Act also implicitly regulated the timing of the referendum. A four month notice period was built in for any change to important procedural rules. This in effect prevented the Government from changing the date of the referendum to go for a snap poll, had it sought to do so. The timing of the referendum can be criticised in that it came less than seven weeks after elections to the devolved legislatures on 5 May, and there is a reasonable argument that this did inhibit the full playing out of the issues in the devolved territories. But given that both Scotland and Northern Ireland saw majorities vote to Remain, it is difficult to conclude that this gave the Leave campaign any advantage, thereby undermining the result.

Parliament also showed its teeth over Government attempts to interfere with purdah rules. Section 125 of PPERA restricts the publication of promotional material by central and local government. There was controversy over a Government attempt to limit the operation of s.125 so that it would apply only to publications ‘directly relevant’ to the referendum. This provoked a rebellion by backbenchers and a defeat for the Government in the House of Commons. As a result, section 8 of the 2015 Act largely reinstated the purdah rules.

Deliberation Deficit

It is one thing to regulate the influence of government, but what about the other criticism: that citizens simply can’t be mobilised to take ownership of a referendum in an informed way? Leaving aside the implicitly condescending premise of this argument, I have previously contended that it is hard to sustain in light of the Scottish independence referendum. It can of course be countered that citizen engagement and levels of information in the EU referendum do not compare well to the deliberative strengths of the Scottish referendum, but it is difficult to measure this. The turnout on 23 June of 72% is higher than in recent general elections (considerably higher in many low income areas), suggesting that people living in places of high deprivation were particularly moved by the campaign and felt highly motivated to vote.

Another argument is that people were unclear as to what they were voting for. The Electoral Commission’s role in regulating the question goes some way to answer this objection. It is also the case that the options before the people on 23 June had been stable for some time. In this respect the EU referendum arguably contrasts favourably with the Scottish process. In the latter referendum a promise of greater powers for the Scottish Parliament was tabled by the UK Government in the very week of the referendum. Since these were not set out in any detail, this move served to increase the uncertainty of the ‘No’ option. In contrast, on 19 February 2016 the Prime Minister struck a deal with the EU on a reform to the United Kingdom’s position within the Union. It can therefore be argued that the Remain option in 2016 was considerably clearer than the No option was in Scotland in 2014. Most voters still opted for Leave, despite the fact that voters had four months to digest the agreement secured by Mr Cameron. Of course it can be argued that voters did not know what ‘Leave’ would mean in practice, but uncertainty about the future is not uncommon in referendums: it is a common tactic of ‘status quo campaigners’ to emphasise the insecurity of the change option in a referendum. And let’s not forget that 45% voted for Scottish independence with issues such as a currency union with the UK and future EU membership still unclear.

Deliberation, in order to be democratic, must include the whole demos of course. One question is, were the democratic credentials of the referendum undermined by the restriction of the franchise? UK nationals and Irish and Commonwealth citizens satisfying residence requirements (2015 Act, section 2) were entitled to vote, but nationals of most EU member states were not. There are of course political objections to this, but the franchise largely followed that for UK parliamentary elections just as the franchise in the Scottish referendum followed that for Scottish Parliament elections. It is also notable that the Court of Appeal rejected a challenge on EU and human rights law grounds. In my view a more convincing concern rests upon a vision of the UK as a multinational union in which the consent of each of the constituent territories should be required for such a significant change. This raises a broader question about the federalisation of the UK (the full engagement of the devolved territories in the exit process will be essential for the stability of the state), but this is not the main objection of those who now question the legitimacy of the referendum result and was rarely heard beyond the borders of the devolved territories before the referendum.

One of the main criticisms of referendums is that they can be the subject of widely distorting campaign expenditure, with voters subjected to heavily disproportionate advertising from one side in the campaign. This serves to unbalance the environment within which citizens are expected to deliberate. Here UK law stands out as a model of good practice. The PPERA regime is very rigorous in how it polices both funding and spending, and the 2015 Act supplemented this with very tight restrictions on the funding of the referendum campaigns by foreign sources. A balance was reached between the spending limits of the main campaign organisations and the political parties. This potentially gave a considerable advantage to the Remain campaign which was supported by most of these parties. The Conservative Party, which was of course divided on the issue chose not to spend its money on either side. Giving significant spending power to political parties may seem unfair, but this charge has to be balanced with the right of parties to engage based upon the support they have earned; it seems that the difficult weighting between equality and popularity is appropriately struck in UK law. The fact that the Electoral Commission oversaw the setting and implementation of these spending and funding limits (interim reporting being an innovation from the Scottish referendum that was adopted for the Brexit vote) also went a long way to satisfying crucial conditions for effective deliberation in the referendum.

Another issue is provision of information. Here of course there are allegations of lies or at least exaggerations by the main campaigns. I was a co-signatory of an open letter to the Telegraph criticising each of the campaigning groups. The Commons Treasury Committee also upbraided both sides for making statements that were ‘misleading’ and ‘tendentious’. By this measure there are legitimate concerns with how the issues were presented. But it has not been shown that these factors were any more distorting in the Brexit referendum than they have been in other referendums or elections.

There have been suggestions that the UK Government used its position to promote the Remain campaign through spending public money. A pro-EU document was sent to every household that is estimated to have cost approximately £9 million, while the Treasury issued pessimistic predictions of the short-term and long-term economic impact of EU membership. But the Government did not have an entirely free hand. The Electoral Commission regulated information that was to be sent to the public, and strict advertising and broadcasting rules applied to both sides of the campaign. One thing we didn’t see was a concerted effort by the European Union to influence the campaign. This has been a distorting influence in other referendums around Europe on EU treaty ratification referendums. UK legal regulations, and no doubt a sense that this would back-fire, helped keep the EU institutions out of the campaign.

Implementing the Result

I take the view that referendums should be held infrequently and are best reserved for issues of the highest constitutional significance. This helps stimulate the engagement of citizens and provides a careful balance between the norm of representative government and the exception of direct democracy. By this measure the Brexit referendum measures up. It was only the third national referendum in the history of the United Kingdom: people knew they were making a land-mark decision on 23 June.

One final question is whether it was appropriate to settle such a significant issue by a simple majority of those who voted (the narrowness of the majority contrasts with the 67% who voted to stay in the EC in 1975). However, apart from the devolution referendums of 1979, this is established practice in UK referendums and it would be inconsistent to single out the Brexit referendum for objection on this ground. That said, direct democracy does not exist in a vacuum; the narrowness of the result emphasises the importance of Parliament playing a full role in informing and scrutinising the implementation of the referendum result.

To conclude, given that the process was rigorously regulated with no voting irregularities or apparent breaches of funding or spending rules (a final audit by the Electoral Commission has not yet been published), the referendum outcome should be seen for what it is: a narrow but clear constitutional decision of the highest significance. It would be a democratic travesty for the result not to be accepted simply because many of us don’t like it.

 Stephen Tierney is Professor of Constitutional Theory and Director of the Edinburgh Centre for Constitutional Law. He is Legal Adviser to the House of Lords Select Committee on the Constitution and Co-Editor of the UK Constitutional Law Blog.

 

(Suggested citation: S. Tierney, ‘Was the Brexit Referendum Democratic?’ U.K. Const. L. Blog (25th July 2016) (available at: http://ukconstitutionallaw.org)).

23 comments on “Stephen Tierney: Was the Brexit Referendum Democratic?

  1. gevreywineclub
    July 25, 2016

    An interesting analysis Stephen – many thanks. My only comment, trying to be objective, is just that it does not feel right. When there is a general election, the majority of the population may not have read the manifesto’s, but they know in broad principle what they are voting for. To have a referendum on a matter of such significance, when really nobody now fully understands the economic and social consequences, was not an appropriate use of the referendum process. Best wishes from Gevrey Paul Thomas

  2. Tom Austin
    July 25, 2016

    I disagree.
    Where to begin? The issue at the forefront of my mind; the mention of “established practice” (50+1%). That the latest EU referendum was but the third national referendum, it strikes me that it is the ‘convenience’ that is long-established, and a fundamental principle of our FPTP Representative election process, and a failure to grasp the differing principles of Direct Democracy.

    “I take the view that referendums should be held infrequently and are best reserved for issues of the highest constitutional significance.”
    -This again reveals to me an underlying adherence to Political-convenience. Direct Democracy is elsewhere habitually the tool employed for local & immediate issues.
    It is far more common within the UK to have such weighty matters decided via the Royal Prerogative. Yet again though, Party preference trumps all.
    Also, the Scottish referendum expanded the franchise to 16 year olds:The line between ‘established’ and ‘not-established’, is not only exceeding-thin, but flexible and movable.
    I’ll end where the article begins: Initiation.
    It is plain to me that the ‘weighty matter’ that each of the three national referendums were initiated to resolve was:How can a Conservative Government be best maintained?
    Finally, while we are freely mixing Representative with Direct Democracy.
    Every general election sees the majority disfavoured, and a minority hold sway. And unless and until the separate principles of RD and DD are effectively delineated, they are mixed.
    Ergo, it is as well to disappoint the 52% as it is to thwart the 48%.
    (Especially as it was only the ‘what’ and not the ‘how’ that was put in play.)

  3. Mike Tremblay
    July 25, 2016

    I would take exception to your conclusions. You equate the legitimacy of the referendum results with the correctness of the procedures followed. That there were no irregularities only demonstrates the process was robust, not that the results are reliable.

    It is not uncommon for people to follow highly structured processes, even with agreed evidence, and arrive at different conclusions. In my field (healthcare) this happens with epidemiological evidence to prove whether a medicine works. We also know more about human behaviours and economic logic (Loewenstein’s Exotic Preferences, Oxford 2007 is a good primer, as is Kahneman’s Thinking Fast and Slow, Penguin 2011) and importantly that people have asymmetrical preferences, do not always choose in their own best interests, as well as systematically misunderstand risk (e.g. if doctors can misunderstand clinical risk what hope is there for the rest of us….). There is an additional problem with forced choice options (there was no “I don’t know” option), which lead to unreliable results. To argue that the result stands simply because a structured process was not violated, ignores the decision-making that occurred within that process.

    People voted for a vague and broadly imprecise statement (I suggest the Electoral Commission was bordering on incompetence in this respect). In such an environment, as they say, if you don’t know where you’re going any road will take you there. For governments, this means that if the evidence does not resolve an issue, then you cannot legislate let alone hold a referendum.

    Given the confused constitutional conclusions that can be drawn I doubt the result is even ‘narrow’. Indeed, a wide gulf exists in that 3 of the 5 constituents of the Union voted Remain; that the English tail can wag the UK dog seems to implicate an English dictatorship.

    I have learnt from your post how little experience the UK has with referenda. Would you trust someone with an important decision if they had such little experience? I doubt it.

    As they say in healthcare, the operation was a success but the patient died. What is the constitutional/legal equivalent?

  4. Geoffrey Hobbs
    July 25, 2016

    The flaw as I see it is that the question on the ballot paper was pseudo-binary: ‘Leave or stay ? The choice is yours’. Whereas the reality was and remains far more complex: ‘Trigger Article 50 in order to negotiate a way out, with all the imponderables which that entails. Yes or no? The choice is yours’. I don’t myself see that the referendum succeeded in directing the electorate to the issue upon which the validity of the outcome of it depended.

  5. richard jarman
    July 25, 2016

    Have you not missed two points; and one that needs consideration
    1. It is perfectly acceptable to campaign against Brexit and / or to re-join; one does not accept an election result in the sense that one still functions as an opposition to change laws and policies.
    2. Is it not proper to expect an election once the terms of Brexit are clear?
    3. I have clear rights as a citizen under EU laws treaties and principles. I see an argument that these are now woven into our constitution and cannot be taken away by a parliament that has ceded sovereignty; it may have a treaty agreement allowing national withdrawal but cannot or should not affect my personally acquired benefits e.g. of peaceful movement and residence.

  6. grahamwood32
    July 25, 2016

    Was the Brexit Referendum Democratic?

    Yes, a clear majority voted to leave the EU.

    • Tom Austin
      July 26, 2016

      No! A clear majority did not vote for Brexit. Many of those affected;adversely or otherwise, were not even allowed to vote.

      • richard jarman
        July 27, 2016

        1. The legitimacy of the process in the UK has been discussed earlier in this blog
        2. Can Brexit in fact abrogate the Charter of Fundamental Rghts; the ECHR is to remain; additionaly the Rights are largely a codification….
        3. Look at ECHR Protocol 4- Article 2 says one may travel form ones country of origin; Article 4 prohibits mass deportation …..Brexit what Brexit…..a news quiz with one Johnson B.

      • Tom Austin
        August 5, 2016

        Thanks for that. Yes, there has been discussion – I yet deny the legitimacy of Brexit. The basic issue is where law means nothing;law means nothing.
        We have read here that our Constitution offers no hope, the Courts may force the matter upon Parliament, but the MPs are complicit in this whole charade.
        48%+ of us need to brandish our determination to Remain

      • grahamwood32
        July 27, 2016

        But a clear majority of those eligible to vote, and who did so, remain a majority. That is what counts in a referendum where the minority must accept the verdict of the majority. That’s democracy!
        If you are referring to those too young to vote as yet, then they get their representation when they are. In any event they would not be eligible to vote in a GE either – those are the rules.
        Remainians appear to want to overturn a referendum which had the highest turnout on record and was fair and open. They should not gripe with sour grapes now!

      • Tom Austin
        August 5, 2016

        As is clearly evidenced elsewhere on these pages:Brexiteers were adamant that a ‘Remain’ vote was not the end of their campaign – may I not claim the same?
        The rest of your argument represents Maradona-mayhem/mob rule.

      • grahamwood32
        August 26, 2016

        Tom wrote: “As is clearly evidenced elsewhere on these pages:Brexiteers were adamant that a ‘Remain’ vote was not the end of their campaign – may I not claim the same? The rest of your argument represents Maradona-mayhem/mob rule.

        But of course – battle on, but if I may remind you that the question was relatively simple, namely ‘Was the Brexit referendum democratic’.?
        I can only reiterate the obvious fact that clearly it was, though you may not like the result.
        A full and spirited debate was held throughout the UK, with the biggest turnout for a national referendum ever. What more can we say?
        What is “Maradona-mayhem/mob rule” and where is that evident on this or any other blog where rational discussion of the issues continue to take place. I’m baffled by the hyperbole.

      • Dear GW32. Ah but for history lessons of failed democratic decisions would you be right. Think about other electoral cases that have led to dreadful consequences that for some took years or decades to unpick. Dare I mention “the war”. I have no faith in the ability of the current political lot to navigate a safe route to Brexit; indeed, what will be the real-world consequences when May & Co fail to deliver and the UK is summarily ejected from the EU?

        The Economist has said that the UK has voted to be a poorer country. DB has said it will make the UK a third-rate power. The pining for past empire was exploited to create a golden future that seduced a large number of people at the expense of the present and the future.

        Let that sit in people’s minds over the next 12 months and we’ll see how much support exists for Brexit, the legitimacy of the referendum and its alleged democratically-informed decision-making aside. It is small beer to live on sovereignty and control of borders when you’re back to 1930s Britain.

        I always thought people couldn’t sell their children for money; the constitutional parallel is what will be needed to deliver Brexit.

    • Mark
      August 11, 2016

      Ambiguous assertion. Yes, a clear majority of voters. No re the demos: “only”, 37%.

  7. Alessandra Asteriti
    July 25, 2016

    Thanks Stephen; interesting and informative (as usual!); I see your point on the strong argument to be made for such a crucial question as membership to the EU to be answered by means of a referendum. However, I do think an equally strong argument could be made that matters of international law significance should not be decided by referendum. I take as an example Article 75 of the Italian Constitution, which states as follows:

    A general referendum may be held to repeal, in whole or in part, a law or a measure having he force of law, when so requested by five hundred thousand voters or five Regional Councils.
    No referendum may be held on a law regulating taxes, the budget, amnesty or pardon, or a law ratifying an international treaty.

    Leaving aside the possibility for a constitutional amendment to allow for such a referendum to take place (either ad hoc or generally applicable to EU treaties) and the binding nature of referendums in Italy (which are however only abrogative) there is a strong argument to be made that the pacta sunt servanda principle, and the hierarchical superior position of international law with respect to domestic law (possibly with the exception of constitutional rules and principles) strongly militates against having these decisions made by way of referendum as a matter of principle. In fact, one of the consequences of this referendum is the loss of the fundamental rights guaranteed by the Charter of Fundamental Rights and by EU law for UK citizens, and I am not sure this is a precedent that any of us would or indeed should be happy about.

    • Ed Miller
      August 5, 2016

      The Lisbon Treaty specifies a process by which Member States can leave the EU. Therefore, I don’t understand what relevance the legal doctrine of “pacta sunt servanda” has to this situation, because in this context it relates to the obligatory nature of inter-state treaty obligations, not the rights of individuals arising out of any such treaties.

      The process by which a state may reach a decision to withdraw from a treaty isn’t governed by pacta sunt servanda, nor is the Italian Constitution at all relevant.

  8. David Bentley
    July 27, 2016

    I thought I’d sent a comment, but must have removed it. In essence much the same as those already submitted. We don’t know, but strongly suspect what were the reasons why many people voted to leave. Perhaps a proper survey could tell us. Meanwhile the result suggests to me that it shows why matters of the highest constitutional significance should not be left to referendums. Or lesser matters like capital punishment.
    Nor am I sure that the significance of this referendum has much to do with that mysterious creature the UK constitution. The issue mattered chiefly because of its potential for reducing the global status of the UK to a third rate power. We’ll see, but it’s hard to be optimistic.

    David Bentley

    • Tom Austin
      August 5, 2016

      I agree Mr. Bentley. At base, the issue is the wrongful (and incoherent) pick’n’mix of Direct Democracy in with our ‘usual’ Liberal (Representative) Democracy. The sole reason for the referendum was the interest of one Political Party.
      Why did people vote as they did?
      Consider the previous instances of Party-Political advantage:Devolution.
      This added much ‘squeak’ to the wheels of Scotland and Wales – NI has long had its ‘squeak’.
      Where has all this left the voters of England?
      Along comes the referendum. The sole opportunity for the voters of England to make their mark for very many years.
      How hard could it be to encourage them to bloody the nose of the establishment?
      -The least consideration of a just democracy;the habits inherent in Direct Democracy – makes for either a sage reconsideration of the ramifications of the referendum result by Parliament, or a second confirmative referendum, a must.

  9. Pingback: I·CONnect – Was the Brexit Referendum Democratic?

  10. Mark
    August 11, 2016

    The answer may be correct, but majority tyranny is democratic too, so the bigger issue is the quality of democracy. And, to put this point forcefully: it is irresponsible to implicitly make democracy into an icon in which no wrong can be done.
    Then there is a major, well-recognised problem of referendums that you don’t address, which is that they often get ‘hijacked’ becoming about issues other than that on the ballot. Here (Brexit), there is ambiguity in that regard since Brexit became (mis?)understood as a way of bashing the establishment, so the vote became something of a would-be “anti-hegemonic” device and opportunity: see Smith (1976), The Functional Properties of the Referendum, European Journal of Political research, 4, 1: 1–23.
    So, a flawed use of an instrument of direct democracy in a representative democratic system – and I would take issue with the point made above that direct democracy instruments are widely and routinely used. They have become more common, but have been rare outside Switzerland, Italy and some US states and, more recently, in the EU context.

  11. Antony Carter
    August 29, 2016

    “To conclude, given that the process was rigorously regulated with no voting irregularities or apparent breaches of funding or spending rules (a final audit by the Electoral Commission has not yet been published), the referendum outcome should be seen for what it is: a narrow but clear constitutional decision of the highest significance. It would be a democratic travesty for the result not to be accepted simply because many of us don’t like it”

    Such then could be said of the 1975 referendum called by the Wilson Government to fulfil a promise made at the 1974 GE. Except the outcome then wasn’t narrow and was exceptionally clearer. From a population of 57.8 million 65% of those eligible to vote turned out. 67% of those voted to remain in the EC. 33% voted to Leave. A ratio in excess of 2:1 The 2016 ratio is less than 1.004:1

    How is it a democratic travesty to refuse to accept the latter when for the last 43 years every exercise by the Executive of the Royal Prerogative and by Parliament of it’s sovereignty under the Ponsonby convention in connection with the UK’s membership of the the European Community has been denied by those 33% as democratic, leaving aside the question of the outcome of that 1975 referendum?

    • richard jarman
      August 31, 2016

      The academic discussion continues.

      The question now however is why do Brexiteers say the rest of us cannot join the political debate, join parties etc and persuade people that Brexit is wrong.

      After an election the loosers become the opposition and still argue the case against the winners. The same is happening here. It will become clear soon that we cannot and do not wish to ‘make our own laws’. Name one, just one – that is not a treaty item but an EU regulation. The RCD – which should recognise the ABS code as well?

  12. Pingback: Kenneth Campbell QC: Constitutional Discourse Post-referendum: Where Are We, and Where Are We Going Next? | UK Constitutional Law Association

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