Constitutional Law Group February 20, 2017 Europe, European Union, Human rights, UK Parliament

George Letsas: The Constitution and the Folly of Majoritarianism

In the aftermath of the EU Referendum many hoped that Parliament will, in its wisdom, block what the people decided to do in the heat of the moment: to leave the EU in a single ‘in-out’ referendum, with a simple majority, in a campaign full of deliberate lies and misinformation. That hope remained alive when the government’s attempt to bypass Parliament, through the use of the Royal Prerogative, was challenged in court as unconstitutional. The government has now lost the constitutional argument but it was clear, long before the Supreme Court’s decision, that Brexit is the only political game in town.

Last week, MPs voted in favour of the Brexit Bill by 494 to 122 (a majority of 372), even though most of them had supported Remain. Several MPs, struggling to reconcile their vote with their belief that Brexit is politically disastrous, invoked the will of the people. Diane Abbott MP stated that “to say that because the vote went the wrong way we are going to ignore the votes of millions of people up and down the country would be a blow to democracy”. Her remark reflects the general sentiment of the country. In the eyes of public opinion, anyone who attempts to block Brexit – litigants, courts, MPs – betrays the value of democracy. They are, in the despicable headline of the tabloid press, ‘enemies of the people’.

It is all too easy to explain the vote in the House of Commons as self-interested political calculation. MPs, who seek re-election, are no doubt unlikely to go against the majority will of their constituents. But why would their constituents, including many who voted Remain, interpret a parliamentary vote against Brexit as undemocratic?

It was quickly pointed out that in constitutional terms MPs are representatives, not delegates of the people. They have a duty to form an independent judgment about what is in the best interests of the country as a whole. The electorate is of course well-aware of this constitutional principle of representative democracy; they do not normally shun as ‘enemies of the people’ the opposition MPs who vote against the policies of the party that won the general elections, as Kenneth Clarke aptly remarked in his speech in Parliament. But in the eyes of the public, the June referendum – which everyone agrees is not legally binding – is treated as an exception to the well-established principle of representative democracy. With the exception of Liberal Democrats, the prevailing view, left, right and centre of the political spectrum, is that the decision to leave the EU was for the people to make, and it is not up to Parliament to re-open it; nor may Parliament impose any limits or qualifications to a decision that purports to have a major constitutional impact: MPs even voted against an amendment to guarantee the rights of EU citizens living in the UK, post-Brexit.

This is an astonishing constitutional development since it sets severe limits to Parliament’s authority in the name of the rather nebulous concept of what ‘the people voted for’ in a simple yes/no referendum. No referendum of this kind can of course decide the myriad interconnected issues of law and policy that are affected by the country’s membership of the EU. Yet the attribution to the outcome of the June referendum of any specific content about what Brexit means (‘hard’ Brexit for example), and the subsequent fettering of Parliament’s legislative authority, means that it is the value of representative democracy that has suffered the real blow.

The June referendum risks having another, less obvious, impact on our constitutional landscape. For over 40 years, membership of European organisations radically changed the UK constitution. Domestic courts have been interpreting Acts of Parliament subject to EU legislation giving precedence to the latter in case of conflict, while under s. 3 of the Human Rights Act 1998, they have been interpreting Acts of Parliament in a dynamic way, so as to make them compatible with human rights. These changes shook the foundations of the positivistic doctrine of parliamentary sovereignty. This constitutional doctrine holds that Parliament can make or unmake any law and the role of courts is to give effect to its will unconditionally. Real constitutional progress was made, revealing the inadequacies of this archaic doctrine. Courts immersed themselves in the task of protecting individuals against well-known vices of any representative democracy, not least of all the Westminster Parliament: bias towards unpopular minorities, neglect of vulnerable people, xenophobia, political opportunism, vested interests, abuse of power by powerful private actors and many others. They also embarked on a process of institutional dialogue and co-operation with European supranational institutions, thus being able to tackle collective problems (such as climate change, consumer protection or workers’ rights) which no country can solve by itself.

Intellectually however the UK, the birthplace of legal positivism, was slow to absorb these constitutional changes. They were typically conceptualised as compatible with, and grounded upon, the doctrine of parliamentary sovereignty. Courts were depicted as applying someone else’s decisions (the EU’s or Strasbourg’s) only because Parliament directed them to do so: when disapplying Acts of the UK Parliament courts were simply obeying Parliament. This sophomoric depiction salvages the doctrine of parliamentary sovereignty but is jurisprudentially vacuous.

The reality is much different. In engaging with European legislation and case-law, domestic courts were not obeying anyone; they were constructing their own view of how all these diverse legal materials (domestic and supranational) can be interpreted in a coherent and principled manner and be applied in a way that treats like cases alike. In so doing, courts set off on the path of modern constitutionalism: this is the idea that there are certain fundamental legal principles, accepted and recognised in all mature democracies, which limit and control the effect of any decision made by the political branch of government, however representative of the people it might be. Central to modern constitutionalism is the political value of the Rule of Law: it requires courts to uphold such principles, and the individual rights that they ground, placing law above politics. In a constitutional democracy no one is sovereign and no majoritarian decision, be it by the people or by Parliament, is above the Rule of Law.

It is disappointing that the UK Supreme Court reverted to the archaic notion of parliamentary sovereignty in the Miller judgment. Eager to justify why the executive lacks the constitutional power to affect individual rights grounded in EU law, the majority in Miller subsumed the relevance and weight of such rights under the doctrine of parliamentary sovereignty. It said [at para. 60]:

[c]onsistently with the principle of Parliamentary sovereignty, this unprecedented state of affairs will only last so long as Parliament wishes: the 1972 Act can be repealed like any other statute. For that reason, we would not accept that the so- called fundamental rule of recognition (ie the fundamental rule by reference to which all other rules are validated) underlying UK laws has been varied by the 1972 Act or would be varied by its repeal.

But the real constitutional issue is not who gets to upset individual rights flowing from EU membership (Parliament or the executive), but whether these rights can be taken away altogether. The passage just quoted – invoking H.L.A. Hart’s famous claim that legal systems have a Rule of Recognition – assumes that Parliament can do away with all such rights, make or unmake any law with respect to the EU. But that is clearly a mistake. Brexit is not a constitution-free zone. Take the example of the rights of EU citizens who have made their life in the UK and of Britons who have made their life in the rest of the EU. Deporting people based on their nationality, whilst they have lawfully made their life in a country, on the explicit understanding that they are entitled to permanent residence, would strike at the heart of the value of the Rule of Law. Taking such rights away, in the name of a plebiscite, may have a place in fascist and authoritarian regimes, but not in a constitutional democracy. Nobody may lawfully expel citizens from other EU countries who have made their life in Britain, not even Parliament. Nor is there any such thing as a Rule of Recognition in the UK, i.e. a social norm practiced amongst legal officials whereby they converge in the application of the law. If there were such a norm, then judges of the Supreme Court would not be in disagreement on such a fundamental constitutional question as who gets to take the country out of the EU.

We should like to hope, too optimistically perhaps, that the reasoning of the Supreme Court in Miller will not get in the way of upholding fundamental individual rights, thus undoing decades of constitutional progress. Under the folly of majoritarianism that has befallen our institutions and our public culture, neither the Prime Minister, nor the House of Commons are willing to guarantee the legal rights of EU citizens who live in the UK. It is the duty of courts not to fall under this spell in the name of the misconceived doctrine of parliamentary sovereignty, and to uphold the Rule of Law.

Why has the country succumbed to the folly of majoritarianism, distorting its constitutional integrity at so many levels? I believe there is a common explanation to how all three branches of government reacted to the EU referendum. At the heart of all this folly lies a misunderstanding about the nature of democracy. It is the assumption that there is such a thing as what ‘the people want’, which can be expressed in a majoritarian decision-making process and become the source of democratic legitimacy for specific laws. Yet this majoritarian conception of democracy is deeply mistaken: voting – in both general elections and referendums – is not a process aimed at revealing the desires and preferences of the people so that they can be satisfied through legislation. If that were the case, then there would be no need for reason-based deliberation and exchange of argumentation, which are central to any democratic process. In a democracy, properly understood, we deliberate and vote about what will make our country more just or fair; justice (social, distributive, institutional and so on) is the subject-matter and the aim of our politics. Citizens are participants, together with the three branches of government, in a complex institutional process aimed at identifying, selecting and implementing particular conceptions of justice. That is why in a democracy, arguments based on ‘what the people want’ are not only irrelevant, but also ontologically spurious. Nothing can be revealed about what the people want from a process that serves a totally different function altogether, namely that of co-authoring the vision of justice that should govern our polity. Arguments about what ‘the people want’ are also politically suspect, because they bypass the need to provide reason-based arguments of justice, as if the win of the majority who voted makes that need obsolete.

It has to be stressed then that no specific political action (‘hard’ Brexit or what have you) can be legitimised as an inference from the fact that the British people ‘wanted Brexit’: no such thing was revealed, or could have been revealed, in the June referendum and no inferences can be drawn from its outcome. All that the referendum legitimised is the government’s mandate to seek a fair and just way of disentangling the country from decades of European integration and rights-based constitutionalism. Perhaps there is no such way – in which case there should be no Brexit; or perhaps, most likely, finding such a way requires securing a large number of individual rights flowing from EU membership, including the single market. In either case, no betrayal of democracy will have taken place. On the contrary, it would be democracy at its best.

So perhaps the Prime Minister was right after all: Brexit does mean Brexit, which is another way of saying that – constitutionally speaking – it means nothing at all. Just like with ordinary politics, the meaning of Brexit should be defined gradually through a long institutional process in which the three branches of government perform their constitutional roles, checking one another. What is important to realise however is that what is at stake now is something far more precious than our relationship with Europe: it is the very democratic nature of our politics. It is everyone’s constitutional duty, as citizens of a democratic state, to resist the folly of majoritarianism that is spreading fast on both sides of the Atlantic.

George Letsas is the Co-Director of the UCL Institute for Human Rights and Professor of the Philosophy of Law at University College London.

(Suggested citation: G. Letsas, ‘The Constitution and the Folly of Majoritarianism’, U.K. Const. L. Blog (20th Feb 2017) (available at https://ukconstitutionallaw.org/))

18Comments

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1

ethicaladvocacy on February 20, 2017 at 12:23 pm
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The “folly of majoritarianism”. Spoken like a true intellectual. Does democratic legitimacy mean nothing to you?
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  dmcrc on February 20, 2017 at 2:43 pm
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  Ronald Dworkin, What is democracy?, in Constitution for a Disunited Nation (ed. Gábor Attila Tóth).
3

Jez on February 20, 2017 at 1:00 pm
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On the button.
4

grahamwood32 on February 20, 2017 at 1:08 pm
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An interesting point about the use of the Royal Prerogative:
However, the recent SC court decision about the Royal Prerogative raises the greatest irony of all in the on-going Brexit saga in that the decision.
applies a completely different law to the UK’s withdrawal from the European Union than was applied to the UK’s entry into the European Union.”
If the use of the RP was deemed unconstitutional by the SC for invoking Article 50 of the Lisbon Treaty, then legally it seems clear that every other treaty signed by the UK for the past four decades were equally null and void since each one involved the use of the RP.
Thus logically the Article 50 route being engaged by the government is not only entirely unnecessary, but also legally ultra vires as it is part of a treaty that was also passed into UK law using the RP which the SC decided was unconstitutional.

Those who wish to pursue the matter further would profit from looking at the Freenations website and article about “Fascist law”‘
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  Tom Murphy on February 27, 2017 at 11:35 am
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  “If the use of the RP was deemed unconstitutional by the SC for invoking Article 50 of the Lisbon Treaty, then legally it seems clear that every other treaty signed by the UK for the past four decades were equally null and void since each one involved the use of the RP.”
  
  It means nothing of the sort, for two reasons –
  
  1. Treaties that are solely concerned with the UK’s relationship with other sovereign nations or international organisations, and which do not affect domestic law, remain within the scope of prerogative powers.
  
  2. The various treaties relating to the EU and its predecessors, which have affected domestic law, have required acts of parliament to give them effect. The treaty of accession to the EEC (as was) was signed by the government of the day using prerogative powers but, because the provisions of the treaty regarding the domestic effect of EEC legislation could not be implemented without the approval of parliament, the European Communities Act 1972 was passed and only then could the treaty be ratified. Subsequent EU treaties have required, and received, similar authorisation from parliament.
  
  That is the fundamental difference between EU treaties and those which only have an external international effect.
6

DAD on February 20, 2017 at 1:22 pm
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This looks very much like a defence of aristocracy against democracy, i.e. we should dishonour a commitment to decide by referendum the central constitutional question of our times, because the most able and intelligent people (presumably law professors) don’t agree with the outcome. Fair enough, but to present this as a reasonable interpretation of democracy is too much of a stretch. I agree, let’s not have any more plebiscites, but we are where we are.

There are also the usual comments about dishonesty. It’s as if pro- and anti-EU politicians alike haven’t spent decades prevaricating to the British public on what EU membership really means; prevaricating to the EU on what British people really think of the EU; blaming the Commission for unpopular domestic decisions; and so forth. Nobody in their right mind would accuse the Leave campaign of being entirely candid, but for sure they’re tapping into a long and distinguished tradition.

Finally, I wonder what the writer thinks about continuing EU member-states refusing to guarantee the rights of UK citizens. This of course doesn’t mean that we shouldn’t take the moral high-ground, but it’s a factor that is often curiously missing from pro-European commentary. For what it’s worth, I was a marginal Remain voter, and I’m also despondent at the new sectarian divides in our society that – yes – the referendum has exposed and aggravated. Shouldn’t we be trying harder to listen and bridge these divides rather than restating our own case ever more aggressively?
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  Nunn The Wiser on March 12, 2017 at 4:48 pm
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  DAD: “Finally, I wonder what the writer thinks about continuing EU member-states refusing to guarantee the rights of UK citizens.”
  
  Guaranteeing the rights of UK citizens for what? They already have that guarantee! If you are referring to a post-Brexit situation, then the E.U. member states can only give that guarantee once an official declaration of intention by the U.K. Government to leave the E.U. has actually been presented to them. Not before, as you want.
  
  At the time of writing that declaration (the “triggering” of Article 50) still hasn’t been presented. The E.U. cannot respond to something that hasn’t yet happened.
8

Alessandra Asteriti on February 20, 2017 at 2:00 pm
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As I wrote back in July, ‘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.’
9

Sean Feeney on February 20, 2017 at 3:14 pm
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The essence of the philosopher [sic] Professor George Letsas’s argument is that the UK MAY not be able to exercise its sovereign right, recognised under European law by article 50, to leave the EU if this cannot be done in a “fair and just way”.

See the inconclusion [sic] in his penultimate paragraph:

“…All that the referendum legitimized is the government’s mandate to seek a fair and just way of disentangling the country from decades of European integration and rights-based constitutionalism. Perhaps there is no such way – in which case there should be no Brexit; or perhaps, most likely, finding such a way requires securing a large number of individual rights flowing from EU membership, including the single market. In either case, no betrayal of democracy will have taken place. On the contrary, it would be democracy at its best.”

He is raising the possibility, without having the intellectual courage to conclude, that the loss of EU rights may be a substantive bar to the UK ever leaving the EU.
10

Steve Gwynne on February 20, 2017 at 4:16 pm
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Obviously a remainer.
11

Roger on February 20, 2017 at 5:30 pm
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Another remoan diatribe attempting to stir up the losers to “rise up” a la Tony Blair (dear, oh dear!).

The battle within the UK has been fought, won and lost. The Lords are irrelevant and can only cause trouble, delay and loss to our country. The battle now is with our European friends who still appear to harbour thoughts of punishing our country. We’ll see how that unfolds.

And it is our European friends who are responsible for our inability to reach an early agreement on the future status of EU “nationals” who are ex-pat either in or out of the UK.

With the EU having limited time left (refer to the recent BBC programme examining its prospects recently) the eurocrats are still fiddling while (the Treaty of) Rome burns. I give it 10 years max. Our timing for leaving looks impeccable to me.
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  Alex on February 21, 2017 at 6:43 pm
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  A bit churlish given the deeper argument here about democracy, wouldn’t you say?
13

Stefan Theil on February 21, 2017 at 10:31 am
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The argument is well put, but suffers somewhat from the fact that the UK has never agreed in an express and entrenched manner on the fundamental principles of its Constitution and the limits of majoritarianism. Although both undoubtedly exist, regardless, there is something to be said for actually taking the time to codify such principles in a properly entrenched Constitution: not only does it make the limits of majoritarian decision making much clearer for everyone, it might also reasonably constrain the constitutional fiction of Parliamentary Sovereignty.
14

Alberta on February 21, 2017 at 8:03 pm
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Hard to tell what is democracy! And even harder to understand how it works! If you analyze it you find that is an insanity!
15

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16

Alex on March 2, 2017 at 12:23 pm
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Many thanks for this George. I agree that the exchange of reason-based arguments is central to democratic rule. However, I am not sure why the falsehood of ‘aggregate preference’ majoritarianism entails that the June referendum should not be pro tanto binding as a decision on whether the UK should leave the EU. A better majoritarian argument for the latter holds that popular procedures, like referendums, are the most respectful way to allocate decisional power over issues affecting the use of governmental coercion. If this argument is true – I am agnostic but it seems plausible – there is nothing about majoritarianism that turns on ‘the will of the people’. Properly construed it concerns the morally optimal procedure for making political decisions, given the fact of disagreement. On this view I see no inconsistency in demanding a reason-based debate and holding something like the June referendum to be pro tanto binding.

Your suggestion that the point of voting is to contribute to an institutional arrangement for putting into place conceptions of justice and fairness is powerful. Although I think that the point of political participation is somewhat broader, I agree in essentials. However, this leaves unanswered how, when and by whom governmental decisions are to be adopted and implemented. Pointing to an institutional system is insufficient because all such systems must have more or less clear procedures for decisional output if they are to function. With what institution does the buck stop? When is a particular decisional output to be treated as pro tanto binding?

Now, it seems plausible to me that the June referendum should not be considered pro tanto binding because it took place under conditions of inadequate debate and/or was inappropriately focused (i.e. it was a simple ‘yes’/’no’ question). Perhaps, under such circumstances, equal respect would not be instantiated by our legislative, executive or judiciary acting as though the referendum was presumptively binding. Nonetheless, we would need a positive case for attributing decisional power to some institution or set of institutions other than the popular vote.

I guess my question, at bottom, is this: which institution or set of institutions should have (prima facie?) conclusive decisional power in relation to what ‘Brexit’ means? You seem to imply that the process must be dialogical but we need some account of how this is to take place. For instance, could the Supreme Court have legitimately held that Article 50 cannot be triggered without legislation explicitly protecting the existing rights of EU nationals living within the UK? This seems plausible to me but I am interested to know how you think this ought to have panned out. As a further point, what would you like to see happen in the event that any and all relevant executive and legislative action fails to uphold such rights?
17

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[…] of the democratic iceberg, it becomes clear that votes alone are not ways to address disagreement. Lestas’s recent post on this blog makes this case powerfully: this is simple majoritarianism. To be clear, majoritarian […]
18

Farewell to the EU Charter of Fundamental Rights? The Withdrawal Act and the Danger of Losing ‘Fundamentals’ – UCL Brexit Blog on October 10, 2018 at 12:32 pm
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