UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Philip Allott: The Problem of Direct Democracy: Brexit and the Tyranny of the Majority

The Brexit process has been a major event in British constitutional history, and in the history of constitutionalism in general.  It originated in the positions taken by two Prime Ministers.  David Cameron said that he was bound to hold a referendum because that commitment had been contained in the Conservative Party manifesto for the 2015 General Election.  Theresa May said that she was bound to give effect to the outcome of the 2016 referendum because it had expressed the will of the people.

The development of parliamentary democracy, a form of indirect democracy, has been at the heart of British history for seven centuries.  Direct democracy is decisive political power exercised by the people other than through established constitutional processes.  In practice, the commitments in the election manifesto of a political party have not been regarded as binding, politically or legally, on an incoming government.  Our established constitutional processes have not included referendums that are not legally binding but are treated as binding by a government.

The problem of direct democracy has a history as old as rational discussion about the nature of government.  It is a history that is still being made.

Aristotle saw direct democracy as having an inherent tendency to become another form of tyranny: a tyranny of the majority, as discussed by Edmund Burke and Thomas Jefferson and Alexis de Tocqueville and J.S. Mill.  Cicero vigorously defended the unwritten constitution of the Roman Republic embodied in the subtle duality of the Senate and the People.  Alcuin, the eighth-century proto-Yorkshireman who acted as an adviser to the emperor Charlemagne, told him: ‘Don’t listen to those who keep saying that the voice of the people is the voice of God.  The noise of the crowd is always close to madness.’

Embryonic English parliamentarianism in the thirteenth century was an attempt to regulate the relationship between the monarch and the people who paid for the king’s government. It was a system of reciprocity.  Thomas Smith, one of Queen Elizabeth I’s Secretaries of State, said in 1583: ‘And the consent of Parliament is taken to be every man’s consent.’  We elect the members of the House of Commons.  The laws that Parliament makes bind us.

We may hear an echo of this in Edmund Burke’s rather unwise speech to the electors of his Bristol constituency as their new MP (1774), telling them that he was their representative not their delegate.  He would not take instructions from them.  He would use his own judgment.  He was not re-elected. The British parliament is not merely an ‘assembly’, a term used in the constitutions of some other countries.  It is a legally constituted corporate organ of the constitution, alongside the government and the courts, all three of which are manifestations of a three-in-one monarchy set in an immensely complicated relationship of interacting powers.

The prolonged seventeenth-century constitutional confrontation of king, parliament and the courts established the Rule of Law as the ultimate principle of British constitutionalism and, in due course, of liberal democracy in general. The Instrument of Government (1653) of Cromwell’s Commonwealth placed ‘supreme legislative authority in the Lord Protector (Cromwell) and the people assembled in Parliament’, subject to explicit and legally binding checks and balances.

Our only, and very temporary, written constitution would leave the British constitution essentially unchanged after the restoration of the monarchy in 1660.  But it would be a model for written constitutions in many other countries.

In the eighteenth century, all across Europe, a new social phenomenon became a new political phenomenon, and eventually a new constitutional phenomenon.  Public opinion.  The business of government would now be the subject of everyday politics.  In salons and coffee-houses and cafes and clubs and newspapers, the people would have their own say.  Liberal democracy is a system for reconciling the conflicting ideas and interests of the citizens through the struggle of politics, and reconciling private interest with public interest through government and law.

Direct democracy, if it imposes the will of a majority on government and law, ignoring the will of the minority, is tyranny by another name.  The tyranny is also a tragedy if, as seems to be beyond doubt in the case of Brexit, a foreign government and foreign money assisted the referendum campaign that was so narrowly successful.

The US Constitution of 1787 presented ‘We, the People of the United States’ as the constituting power of the Constitution.  But that was the limit of their function. The Founding Fathers, mostly landowners, merchants and lawyers, constructed a constitutional system which is as far away from direct democracy as possible, having had some experience of such a thing in the state of Massachusetts.  The President was to be part of one of the three organs of the constitution, with none of the mystical status of a British monarch.

For a while it seemed possible that the French Revolution might cause fundamental changes in the British constitution.  The revolutionary constitutional documents placed ultimate power (sovereignty) in the nation and the people.  All constitutionalism is the permutation of artificial entities, necessary fictions, forged in the human mind but liable to have massive real-world effects.  Those revolutionary ideas would have a busy and troubled life in continental Europe in the nineteenth century and beyond.

Not in Britain, however. The reform of Parliament in 1832, extending the electorate of the House of Commons to parts of the middle classes, caused anguish in the minds of some otherwise enlightened commentators, not least J.S. Mill.  But it saved Britain from the succession of rebellions and revolutions that plagued Continental Europe throughout the century.  The present French constitution is the fifteenth constitution since 1791.  The Duke of Wellington, as Prime Minister, said that we were conducting ‘revolution by due course of law’.  Friedrich Engels said that the British parliament was ‘the most revolutionary body in Europe’.

Parliament’s heady days in the nineteenth century gave way to what two distinguished lawyers called ‘the new despotism’ (Lord Hewart, 1929) and ‘elective dictatorship’ (Lord Hailsham, 1976) in the twentieth century.  The House of Commons had become the poodle of the government. Governing the massive complexity and energy of the modern state, with non-stop social reconstruction of every branch of society, had made necessary a vastly increased constitutional role for the executive.

In the meantime, the brand ‘democracy’ has been contaminated by its use as an instrument of totalitarianism (‘people’s democracies’), by its manipulation by tyrants through plebiscites and rigged elections, by the corruption of elected officials and government officials by pressure-groups and special interests and organised crime. The survival and well-being of liberal democracy may be a condition of the survival and well-being of humanity in the twenty-first century. As the inventor of liberal democracy, Britain has a special responsibility to protect it from insidious erosion within Britain itself.

It is interesting that the Brexit process, which might be seen as a deliberate violation of the centuries-long role of Parliament as the place where the voice of the people makes itself heard and takes legal effect, seems to have given a new lease of life to the House of Commons as the ultimate arbiter of a major and much disputed potential change in British constitutionalism, a change that could put at risk the constitutional unity of the United Kingdom, and would set dramatically different conditions for Britain’s participation in an international constitutional order which is itself living perilously close to the edge of chaos.

‘No monarch, however, absolute, can concentrate in his own hands all the influences of society, and vanquish all resistance, as a majority, invested with the power of making and executing the laws, can do.’  Alexis de Tocqueville, Democracy in America (1835).

Philip Allott is Professor Emeritus of International Public Law at Cambridge University. His most recent book is Eutopia. New Philosophy and New Law for a Troubled World, first published in 2016 to mark the 500th anniversary of the publication of Thomas More’s Utopia.

(Suggested citation: P. Allott, ‘The Problem of Direct Democracy: Brexit and the Tyranny of the Majority’, U.K. Const. L. Blog (10th Jan. 2019) (available at https://ukconstitutionallaw.org/))

21 comments on “Philip Allott: The Problem of Direct Democracy: Brexit and the Tyranny of the Majority

  1. factgasm
    January 10, 2019

    In Competency-Based Voting, an individual’s capacity to influence a decision is proportional to their understanding of it.

  2. Danny
    January 10, 2019

    The problem with Professor Allott’s analysis is the problem of much legal scholarship, namely its complete divorce from the capitalist system which dominates life in this country, and its detachment from capitalism’s starkly evident class system. His only concession is a terse bow to the creation of the universal franchise, which he later substantially negates out of fear of majority tyranny.

    “Whatever you do, don’t mention the economic system” is the fundamental rule of this dominant brand of liberal scholarship. Such scholarship thereby fashions a strange, abstract world detached from the brutal reality of daily life suffered by Britain’s “lower orders”, a great many of whom responded by voting Leave in the most class-correlated vote in British history. The article therefore does not touch upon the very real DAILY tyranny caused by a financialised spiv economy with low wage, low skilled, casualised jobs, with next to no real rights, and being suffered BY the majority: a vast number of the British population.

    • Mike Fearon
      January 10, 2019

      I am not with you in blaming capitalism, but I think you are quite right about the detachment of the legal establishment from the people to whom it should provide a service. It cannot stomach the fees those people are prepared to (or able to) pay on the open market, A greater income is available from corporations and wealthy privileged individuals.

      As a result legal process is inaccessible to most, and aligns itself with the privileged, particularly the large corporations with deep pockets.

      For those with a “conscience” the route to the pockets of what you describe as the “lower orders” is a collective one – through the taxpayer funding of the education system, and now through the student loan system.

      The perceived divisiveness of Brexit is that it exposes the exploitation of the poorer members of society by the privileged, the hidden contempt of the limitations of democracy by the former, and the ability of the latter to limit the practical opportunities for change. This is why Parliament “has not distinguished itself” in these circumstances – it struggles to conceal (perhaps even to understand) its efforts to avoid implementing a decision of the voters which threatens to reduce its stock of badges of supremacy, and its sense of self importance.

      If the young innocent and hopeful (many of us were) had the experience (as Mandy Rice Davies did) to understand this the result would likely have been more in favour of Leave. Personally I have little doubt that the parliamentarians would still have tried to obstruct implementation, aided and abetted by the legal profession.

  3. Mike Fearon
    January 10, 2019

    Disappointing from Professor Allott. The Remain campaign received funding from a variety of companies with “foriegn” interests.

    “Figures from the Electoral Commission show that Citigroup and Morgan Stanley donated £250,000 each to the official Britain Stronger in Europe group ahead of the June 23 referendum on Britain’s membership of the European Union.” Daily Telegraph May 2016 lists a number of other “foreign” interests.

    Perhaps more significant was the very large sum invested by the British government in circulating every household with what can reasonably be described as propaganda.

    I remain a fan of Mandy Rice Davies “He would say that wouldn’t he” and commend her to Professor Allott himself. University professors sometimes fail to realise they are firmly entrenched in the community of the privileged, and subject to its prejudices.

  4. Roger
    January 10, 2019

    If the view of the majority held over the minority is tyranny, how would you describe holding to the view of the minority over the majority?

    The people wanted a chance to give its view of EU membership, it was promised and given with the clearly stated intent that it would be acted on, within a process that if decided upon would take a set (lengthy) timescale, currently in progress.

    The only disturbance to steady progress has been caused by politicians who have struggled to accept and act on the decision provided, led by an ineffective negotiator and an ambivalent Cabinet.

    Their collective failure is the biggest disappointment of our established political system and threatens to reduce the confidence of the people in it to a level that may risk its future effectiveness.

  5. Mr B J Mann
    January 10, 2019

    > “The tyranny is also a tragedy if, as seems to be beyond doubt in the case of Brexit, a foreign government and foreign money assisted the referendum campaign that was so narrowly successful.”

    You are, of course, referring to Brussels and remain!

    • Mr B J Mann
      January 10, 2019

      And, of course, several other foreign leaders, and all those captains of industry depending on, or hoping for, big government contracts from Cameron and Co!!!

  6. Mr B J Mann
    January 10, 2019

    > “Theresa May said that she was bound to give effect to the outcome of the 2016 referendum because it had expressed the will of the people.”

    No, it was because both government, and opposition, insisted in the Parliamentary debate on holding the Referendum, and voted for by effectively the whole House except for the SNP, that it was a decision for the people and their decision would be the final say, as confirmed several times in the official, taxpayer funded, government, additional Remain leaflet, sent to every household!

  7. Mr B J Mann
    January 10, 2019

    > “Aristotle saw direct democracy as having an inherent tendency to become another form of tyranny: a tyranny of the majority…..”

    Does that excuse, never mind justify, the tyranny of the Remain minority we “enjoy” instead?!

  8. Mr B J Mann
    January 10, 2019

    > “It originated in the positions taken by two Prime Ministers.  David Cameron said that he was bound to hold a referendum because that commitment had been contained in the Conservative Party manifesto for the 2015 General Election.

    Did you mean pairs of leaders?

    As in these:

    Referendum Promises (from the Bruges Group website):

    “Nothing will do more damage to the pro-European movement than giving room to the suspicion that we have something to hide, that we do not have the “cojones” to carry our argument to the people.” — Nick Clegg, the Guardian, 15th October 2003

    “The electorate should be asked for their opinion when all our questions have been answered, when all the details are known, when the legislation has been finally tempered and scrutinised.” — Rt Hon. Tony Blair MP, speech to the House of Commons, 20th April 2004

    “There is no question of any constitutional treaty going through without the express consent of the British people . . . Regardless of how other members vote, we will have a referendum on the subject.” — Rt Hon. Tony Blair MP, Prime Minister, speech to the House of Commons, 21st June 2004

    “We will put it to the British people in a referendum.” — Gordon Brown, General Election Manifesto, 2005

    “… ratification must be subject to a referendum of the British people.” — Liberal Democrat Party, General Election Manifesto, 2005

    “Today, I will give this cast-iron guarantee: If I become PM a Conservative government will hold a referendum on any EU treaty that emerges from these negotiations.” — David Cameron MP, The Sun, 26th September 2007

  9. Carol Harlow
    January 10, 2019

    While I agree the commentary concerning the constitutional place of representative (parliamentary) government and referenda, Parliament has not exactly distinguished itself in exercising its functions recently.

  10. John Hartigan
    January 10, 2019

    This article fails to recognise the more present danger – the growth of this new doctrine of Parliamentary sovereignty so supreme that it begins to appear a tyranny in itself. Parliament no longer recognises the traditional constraints of requiring consent for profoud constitutional decisions or feeling bound by its contract with the electorate – the manifesto. Parliament’s sovereignty derives from the people. If Parliament voted tomorrow to abolish the monarchy, the country is unlikely to accept it no matter how technically legal. With the sole exception of authorising the Scottish independence referendum, all Parliament’s major constitutional decisions in recent decades have had consent from general election pledges (joining the EEC – Heath 1970; the 1975 referendum – Wilson 1974; devolution, Lords reform – Blair 1997, EU referendum – Cameron 2015).

  11. Christopher Whitmey
    January 11, 2019

    The title ‘Brexit and the Tyranny of the Majority’ reminds me of my blog title ‘Brexit: People’s Referendum – Conflict or Consensus?’

    In such referendums, a majority of 50%+1 is divisive and not a consensus.

    European Union Referendum Act 2015: 2016 Referendum result: Leave 17,410,742 – 51.89%; Remain 16,141,241- 48.11% – 3.78% in favour of leaving. Rounding this means that: for every 52 people who favoured leaving 48 wished to remain. This is a very bare majority and not a consensus.

    In 2016 we knew little of the real facts and potential consequences of leaving: now we kind of do. It would only have needed 50 in every 1,000 who voted to leave in 2016 to have voted remain for there to have been no Article 50.

    For the full argument please see my blog.

  12. Pingback: Piercing the Hull | Verfassungsblog

  13. Pingback: Brexit Highlights 7 – 13 January 2019 | Middle Temple Library Blog

  14. Pingback: Best of the blogs - Legal Cheek

  15. Philip Allott
    January 21, 2019

    Philip Allott
    In the light of comments on my post, I think I should clarify several matters.
    (1) The post is solely concerned with the method that has been adopted for making a decision on UK withdrawal from the EU. It is not an argument for or against membership of the EU. I posted a parallel piece on the LSE Brexit blog on 9 January 2019, considering the effect of the Brexit process on the functioning of the British political system. Borrowing a phrase, they are both offered as first rough drafts of the history of aspects of the Brexit event.
    (2) A decision on termination of EU membership is obviously a very major event in British constitutional history. It is a social responsibility of constitutional historians, constitutional lawyers, and political scientists to explain, analyse and criticise the process by which such a decision is taken They have done this throughout our constitutional history. The complexity and obscurity of our unwritten constitution means that it is not an easy task.
    (3) Many countries use referendums to approve or disapprove of major constitutional changes proposed by their governments, usually involving a proposal to amend their written constitution. The UK referendum of 2016 was unusual in a number of respects. (a) It was not approving or disapproving a government proposal or decision or policy or plan or draft legislation. It posed an abstract question with no indication of the government’s preferred outcome. (b) Its designated electorate was controversial. (c) It contained no required level of participation. (d) It did not require an enhanced majority of, say, two-thirds or 75%. (e) The outcome of the referendum did not have binding legal effect. Indeed, the route from the outcome was unclear. (f) The applicability of legal and conventional norms applying to the holding of elections was not clear. (g) The organised political parties did not lead the debate.
    (4) Winston Churchill called Parliament ‘the great forum of the nation’. It is obviously a major development in our evolutionary constitutionalism when a major constitutional choice is tested in an extra-parliamentary forum. We are bound to consider the implications and consequences of that development.
    (5) The parliamentary method has seen us through crucial and turbulent events in our constitutional history – the deposition of Richard II (1399), the Protestant Reformation in the 16th century, the removal of two kings and the creation of a new line of succession of the monarchy in the 17th century, unions with Ireland and Scotland, the retrospective legitimation of treasonous American independence by an Act of Parliament in the 18th century, the reform of the House of Commons electorate in the 19th century and, in the 20th century, the new relationship with Ireland, the limitation of the powers of the House of Lords and the creation of non-hereditary peers, universal suffrage, the surrender of legislative power over former overseas dependencies, accession to the European Communities.
    (6) Those events illustrate the wonderful puzzle at the heart of our unwritten constitution. How on earth can the Queen in Parliament reconstitute itself by its own act, something that in other countries requires amendment of the written constitution? Withdrawal from the EU is an extreme example of that puzzle, not least because the EU itself has a written constitution.
    (7) The answer does not lie in a supposed ‘sovereignty of Parliament’. There is no such thing. We do not have a ‘sovereign’ in that sense in this country. (See my articles ‘The Courts and Parliament. Who whom?’ in 1979 Cambridge Law Journal and ‘The Theory of the British Constitution’ in Jurisprudence. Cambridge Essays (1992).) The answer is found in a necessary implication of the ultimate constitutional principle of the Rule of Law. If the courts recognise what Parliament has done, then it is the applicable law.
    (8) A similar thing is present in the constitutionalism of the United States. The US Constitution does not give to the Supreme Court the power to determine the validity of Acts of Congress. The US Supreme Court found that it had that power as a necessary implication of its being a court of law (Marbury v.Madison, 1803). If the British Supreme Court and the ECJ recognise the action of Parliament in enacting UK withdrawal from the EU, our unwritten constitution will have changed accordingly.
    14 January 2019

    • Roger
      January 22, 2019

      So many misconceptions here.

      Just for starters, why not as a political scientist 🤔 take a good look at Article 50 (which makes “the route from the outcome” clear) and see if the EU, to whom we foolishly allowed to set the agenda, sequence and programme, has actually done in the specified 2 year period what was required to be done.

  16. Christopher Whitmey
    January 29, 2019

    Roger: please see […] below. Where hasn’t the “the EU … actually done … what was required to be done.” ?

    Allegations need evidence to carry any weight 😉

    Article 50

    1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.[UK government did that.]

    2. A Member State which decides to withdraw shall notify the European Council of its intention. [UK government did that.] In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. [Almost done that save for UK government telling EC the agreement is accepted. So next steps cannot be done by EU ! ] It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

    3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

    4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

    A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

    • Roger
      January 30, 2019

      Thanks, I stand corrected on Article 50, I mistakenly thought it required the future relationship to be agreed in full, not limited to a “framework”.

      • Christopher Whitmey
        February 1, 2019

        Thanks. With all the verbiage flying around an easy mistake to make.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Information

This entry was posted on January 10, 2019 by in Europe, European Union and tagged , , .

Ordinary membership

UKCLA yearly membership (ordinary)

£20.00

Student membership

UKCLA yearly membership (student)

£10.00

Associate membership

UKCLA yearly membership (associate)

£20.00

%d bloggers like this: