When the UK’s High Court rendered its decision on whether the government could trigger Article 50 of the Lisbon Treaty under the royal prerogative to initiate the UK leaving the European Union, it released a storm of abuse against the judiciary in the press and among cabinet ministers.  ‘Enemies of the people’ snorted the Daily Mail; ‘The judges versus the people’ growled the Daily Telegraph.  These were the crudest examples. Yet, for all that,  they are representative of the Brexiteers’ critique.  Had not the people spoken on 23 June and decided the issue by a majority in a referendum?  How then, it was urged, could a group of unelected judges interpose themselves between the will of the people and the realisation of that will in policy?

For anyone who bothered to follow the issues in detail and read the judgement, the reality was, of course, quite otherwise.  That the claim of the plaintiffs could properly go before the courts was agreed as much on the government side as on the plaintiffs’ side.  Indeed, it is easy to see the government welcoming the challenge in order to secure legitimation for its pretension to executive authority by a court judgement in its favour.  The case was not about whether Brexit should happen but how it should happen.

There are legal arguments claiming that the High Court was wrong to suppose that triggering Article 50 will alter the rights that citizens enjoy under the law of the land.  Those arguments make much of the distinction between the European Communities Act as a conduit or vehicle of rights as distinct from being a source of rights.  Those arguments will be for the Supreme Court to decide.  But what is certainly prompted by the reactions to the judgement is a broader question of constitutional politics.  As well as questions of constitutional law, there are important questions of constitutional and democratic theory.  For what is at issue in the controversy was which form of democracy could claim legitimacy – the constitutional democracy established in the UK or the plebiscitary democracy that Brexiteers now favour.

The principles of plebiscitary democracy can be expressed in three claims.  Firstly, the people is sovereign.  Secondly, the people expresses its will on matters of public policy through a referendum in which a simple majority is decisive.  Thirdly, the function of the government is to implement the will of the people as decided by the referendum.  As a corollary of these claims, it is said to follow that anything that frustrates the will of the people is simply anti-democratic.

Scholars since Max Weber have pointed out that something like this theory of democracy has been used to legitimate executive domination.  It was used by Napoleon III to acquire autocratic power in December 1851, in the events that Marx famously described as The Eighteenth Brumaire of Louis Bonaparte.  Similarly, the referendum was used by Charles de Gaulle in 1958 to cement his accession to the French presidency.  In Latin American a variant of plebiscitary democracy was labelled by Guillermo O’Donnell as ‘delegative democracy’, an ideology in which in directly elected presidents were seen to embody the higher interests of the nation over the claims of competing political parties.

By contrast, the fundamental principle of constitutional democracy in its parliamentary variant says that the people’s elected representatives should be decisive on all important matters of law and public policy.  Put simply, parliament is sovereign.  Governments acquire their authority from their ability to maintain parliamentary support.  There are areas of government action, most notably those involving the conduct of international relations, where governments are accorded freedom of action, sometimes with significant consequences as in the declaration of war.  However, in matters that affect the rights and duties of citizens, the executive cannot effect changes change without the agreement of parliament.  By the accident of history these principles were established in England and Wales in the seventeenth century.  In its Miller judgement the High Court laid out this constitutional history and the legal judgements that subsequently cemented them in a brilliantly lucid account.

To say that there are two theoretical or ideological alternatives is not to determine their respective merits.  You might think that either could be adopted depending on your viewpoint.  Yet, there are three arguments – one logical, one technical and one political – that show that the only meaningful interpretation of democracy is the constitutional one.  Plebiscitary democracy cannot be the basis of legitimate government.

The logical argument depends on noting that modern democracy is not simply a matter of transferring ultimate authority from absolute monarchs to the people.  The story of the rise of democracy, particularly in Europe, is sometimes told as enacting the principle that where once stood the will of the king, there now stands the will of the people.  Democratic sovereignty now means that the people governs itself.  Yet, as H.L.A. Hart pointed out many years ago in The Concept of Law, this storyline makes no logical sense.  Citizens as members of a people cannot give orders to themselves, unless we assume that there is a set of accepted rules by which the results of elections and the processes for making laws are deemed valid.  Self-government can only be defined by those constitutional rules.  The very idea of popular self-government presupposes constitutional rules.  It is the only basis on which the idea of popular self-government makes sense.

The technical argument against plebiscitary democracy was noted by Max Weber who coined the term.  The mandating of representatives and governments by the people lacks technical sense in situations in which circumstances change and unforeseen events occur – in other words always.  Unlike parliaments, the people is not in a state in which it is either in session or available for emergency recall.  The negotiation and compromise that is at the heart of good legislation and policy is not something that can be conducted by the people.  This is not to say that negotiation and compromise are always done well by parliaments.  It is to say that only representative bodies are capable of attending to detail and circumstance.

The third, political, argument against plebiscitary democracy is that no incentive should be given to executives to misuse their agenda setting powers where referendums are concerned.  The referendum of 23 June provides a perfect illustration of the inherent dangers.  The referendum presented a simple binary choice to the electorate: remain or leave.  However, ‘leave’ is not one alternative but a set of mutually incompatible alternatives.  By presenting a binary choice the Cameron administration clearly aimed to present remaining as a less fearful choice than leaving.  It not only failed in this respect; it failed also to present realistically the choices that were implicit in leaving.  The fog of manipulation and incompetence muffles any sense of the will of the people.

None of this is to deny that referendums can play a unique and valuable role in democracies, particularly in matters of secession or political union.  It is to say that their role can only be defined through the representative institutions and constitutional procedures by which they are established.  In this sense they are creatures of statute, and they derive such authority as they have from the authority that bestows their powers.  Their reach and significance is never self-interpreting.

This is particularly true in the case of the EU Referendum Act, the key clause of which simply stated that ‘a referendum will be held’.  It would have been perfectly possible for parliament to have stipulated some minimum threshold turn-out or a minimum super-majority.  A referendum in a constitutional democracy is always a product of the law.  Legal safeguards are needed for the interpretation of its constitutional significance, just as legal powers are needed to establish it.

Someone may argue that the case for constitutional and against plebiscitary democracy is over-stated.  Is not the sovereignty of parliament ultimately founded on the sovereignty of the people?  Why can the people not use what is sometimes called its constituent power to determine the ground-rules for its own constitutional ordering?  Why can it not order itself in a participatory way, going on to use the plebiscite as its instrument of self-government?  The prospect may or may not be attractive, a critic might allege, but it is at least logically possible.  After all, Germany’s Basic Law announces in its preamble that it has been adopted by the German people exercising their constituent power.  If this is so, then are the people not truly sovereign?  Yet the example of the German Basic Law proves just the opposite of what one might think from the language of the preamble.  The Basic Law was adopted in May 1949 by a Parliamentary Council, a representative body of parliamentarians and jurists, not the German people acting collectively.  Of course, no constitution will be legitimate if it ultimately fails to secure sufficient popular support.  Yet this is a far cry from saying that a people can constitute itself by its own actions.

In Miller the High Court asserted the principle of parliamentary sovereignty as a way of limiting the ability of the government to act in an unaccountable way.  In particular, it reasserted the principle that no government on its own authority could alter the basis rights and duties of citizens.  In making its determination, the Court maintained one of the fundamental interests that has traditionally animated democratic thought, namely securing protection for individuals from arbitrary government action.  This was not the judges against the people; it was the judges for the people.  Only a misunderstanding of the principles of constitutional democracy could hold otherwise.

Albert Weale, Emeritus Professor of Political Theory and Public Policy, UCL

(Suggested citation: A. Weale, ‘The Constitution of Democracy and the Pretensions of the Plebiscite’, U.K. Const. L. Blog (10th Nov 2016) (available at https://ukconstitutionallaw.org/))