At the Conservative Party conference Theresa May declared:
The referendum result was clear.
It was legitimate.
The people gave their answer with emphatic clarity.
Hard Brexiteers are hoping that this will become accepted wisdom and mainstream political thinking. In a series of three posts euperspectives will put the case why the referendum is not legitimate, why it is not the will of the people and why the result is not clear. This is the second in the series and sets out the case why the referendum result can not be described as “the will of the people.”
Whilst it is true that referendums are the purest form of democracy, like pure oxygen they are highly explosive, volatile and should be treated with extreme caution. By their very nature referendum’s are binary posing deceptively simple questions to highly complex matters.
Many constitutional democracies forbid referendums for this very reason. It would be impossible to find any single democratic country that determines all of its laws on referenda alone. Even Switzerland limits them – and when it does have referenda it finds itself in a bit of a muddle as it does at the moment – no surprises here – over its relationship with the EU. Indeed, very few democratic constitutions from the USA to France allow changes to their constitution on a simple 50% majority vote alone. Although outwardly “democratic” and described as “the will of the people” referendum’s are often seen as the preferred tool of fascists, dictators and autocrats seeking to impose the will of the majority by crushing the rights of minorities through “democratic” means.
It is not surprising that Clement Atlee in 1945 stated:
“I could not consent to the introduction into our national life of a device so alien to all our traditions as the referendum which has only too often been the instrument of Nazism and Fascism.”
Indeed, Margaret Thatcher, (whose disdain of the EU is well known) and who came from the opposite end of the political spectrum to Clement Atlee agreed with him as regards referendums:
“Perhaps the late Lord Attlee was right when he said that the referendum was a device of dictators and demagogues.”
On a less dramatic note there is another problem with referendums. They can end up becoming, as Ian Duncan Smith so eloquently pointed out only recently, “neverendums”. Instead of solving problems the problems stubbornly hang around for days, months and even years like a polluting fog leaving a bad taste in the mouth of the defeated and a tone of defensiveness in the voice of the victors.
In short, referendums often end up being divisive not decisive.
Only if a motion receives over 60% of the vote or a two third majority could one reasonably claim that the results reflect “the will of the people” – and even then with some reservation since the rights of minorities can not and should not be completely ignored. For this reason most written constitutions will only allow a change or amendment to the constitution if it receives a two-third majority vote – or over 60% in favour of change with a high voter turn-out. The 1975 referendum to join the EU, by way of example, was won by just over 67.2% voting in favour of staying in and 32.8% in favour of leaving. That is a substantial majority. Few voices disputed or challenged the result. It was deemed the will of the people. The UK became a member of the then EEC. By 2016 the UK was the fifth largest economy in the world.
Compare the 1975 reaction to the reaction of the nation in 2016.
In the early hours of 24 June 2016 when all votes had been counted Vote Leave claimed a victory. Of the 46 502 241 million registered voters, 33 551 983 voted – roughly 72.2% of the total eligible vote. Of the 33 551 983, 17 410 742 million voted to leave and 16 141 241 million voted to stay. The total number of votes which swung it in favour of leave was just 1 269 501 or 3.9% of the total vote. 3.9% is considerably less than the 37% majority in favour of staying in the EU in 1975.
Back on the rainy, sodden morning of 24th June 2016 those campaigning to leave the EU may have been high-fiving each other and punching the air in joy but unfortunately for them their majority was not big enough for it to be acceptable to the losers. A 51.9% vote in favour of leaving the EU is nowhere near the usual 60% or two-third majority required of most constitutions in liberal democracies for it to be deemed a democratic mandate truly reflecting the will of the people. This is not technical jargon or the mumbo-jumbo of a constitutional lawyer. It is the sad reality in which we now find ourselves.
Much to the frustration of the 17 million voters who voted for Brexit the 16 million who voted to stay in the EU are not just shrugging their shoulders and saying “Well, you win some you lose some. Time for a drink down the pub.” The 16 million who voted to stay in the EU are not crawling into the woodwork quietly accepting that rights they have been enjoying for 40 years are about to be taken away from them.”
But supposing just for a moment that the results were reversed. Remain won by 51.9 % and Vote Leave got only 48% of the vote. In such a scenario it is possible that those who voted for Brexit would not have accepted the results either. They would have continued to agitate, question and doubt the results nagging the government to leave the EU as they did before. Indeed a petition calling for a second referendum and signed by 4 148 360 million Remain supporters was begun by one William Oliver Healy a Vote Leave campaigner. In May 2016 – when it looked like Vote Leave were going to lose by a small margin – Healy decided to sit down and pen a petition. He wrote:
We the undersigned call upon HM Government to implement a rule that if the remain or leave vote is less than 60% based a turnout less than 75% there should be another referendum.
By the end of June 2016 William Oliver Healy had changed his mind. A vote of less than 60% was just fine and dandy after all. A 51.9% result was a perfectly acceptable, democratic, margin of victory after all. The 3.9% majority in favour of leaving was reflected the will of the people after all no need to make a fuss anymore. Indeed, he was quite offended that his petition should have become so popular by the opposing side.
“I am genuinely appalled by the behaviour of some of the Remain campaign, how they are conducting themselves post-referendum not just with this petition but generally. The referendum was fairly funded; democratically endorsed, every vote was weighted equally and I believe this was a true reflection of the mood of the country,”
Such is the binary – some would argue silly – nature of direct democracy.
Why Cameron agreed to a simple majority in this referendum is anyone’s guess. He didn’t have to. Was he badly advised? Is he a coward and was bullied by the Eurosceptics in his party into agreeing to a simple majority? Is he a big gambler staking his house and all future earning on winning with a simple majority? Is he just stupid? Who knows. Whatever his reasons it was a huge mistake since no one – in living memory – has ever seen the country so divided and polarised over a single non-issue.
What we are witnessing first hand is that referendums do not always bring closure. They do not always bring acceptance. The too-close-to-call vote on 23 June, as Duncan-Smith so rightly pointed out, is turning out to be a very divisive, problematic “neverendum” which has led to a complete upheaval of our political system, it has led to an unprecedented level of political instability and rupture and worst of all it could see our country entering into a long period of economic recession. Having fought so hard for parliamentary sovereignty Brexiteers are now happy to trample on the mother of all parliament in favour of royal prerogative thus effectively confirming Atlee’s and Thatcher’s suspicions that referendum’s are the tool of dictators and demagogues. May’s insistence of by-passing Parliament to rely on unelected political advisers such and Nicolas Timothy and Fiona Hill are eerily reminiscent of Hitler’s remarks in Mein Kampf:
For all of the reasons set out above every single Prime Minister, government Minister, MP, constitutional lawyer and voter accepts that we live in a representative democracy not a direct democracy. Ever since Edmund Burke’s famous letter to the Electors of Bristol there is wide-spread consensus that representative democracy is preferable to direct democracy – especially when it comes to single issue policies.
“Your representative (MP)” wrote Edmund Burke to the Electors of Bristol in 1774, “owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.
This view is shared by Jonathan Morgan, Senior Lecturer in Law, Corpus Christi College, University of Cambridge, commenting on whether the government really does have a democratic mandate to withdraw the UK from the European Union. Morgan states,
“Awkwardly therefore, while there are powerful reasons for Parliament to consider itself constitutionally bound by the referendum’s outcome, there are opposing reasons, deep-rooted in our tradition of representative democracy, why MPs could properly decline to do so according to their “enlightened conscience” (Burke), although they would of course be accountable to their constituents for their judgements at the following election.”
Our sovereign Parliament, made up of democratically elected members, is quite clear. The majority of MPs – regardless of party affiliation – did not and they still do not want the UK to leave the European Union. Their enlightened conscience tells them that to do so will probably lead to economic instability, a drop in wages, higher food and energy prices, sluggish growth and low investment. Rather like a parent having to try and curb the wilful desire of their teen-age kids from speeding down the motorway at 150 miles/hour Parliament is having to try and put a brake on the wilful desire of the people to commit economic suicide.
The UK could, of course, decide to break with tradition and ignore Parliament’s “enlightened conscience”. It could decide that direct democracy and a simple majority is in the best interests of our nation. There are those who continue to insist referendum’s are fairer than representative democracy and that failing to recognise the outcome of the referendum is for “sore losers” only. This is what hard Brexiteers are trying to sell to the nation through their sympathetic right wing media. If they repeat the message often enough that the referendum is legitimate, the will of the people and crystal clear they are hoping that even the 48% will eventually accept a Brexit of some sort or another. This is what we have to guard against.
If direct democracy , as opposed to representative democracy, is really what British voters opt for they might find direct democracy tedious and boring. Do we really want a referendum to decide every law of he land? That would require the citizens of the UK to vote at least three times a week on very technical, arcane and minor amendmenst to either existing or new laws. It is an option but it is hardly an option many would choose for if they had to vote for it – even in a referendum.
To sum up, suggesting that the referendum is “the will of the people” and that it is “democratic” is quite false. For it to be even vaguely described as “the will of the people” more than 60% of those eligible to vote would have had to vote in favour of leaving the EU. They did not. So let us put to bed any idea that this referendum is either legitimate or the will of the people. It is the will of the far-right, libertine faction within the Conservative Party who have the support of an unaccountable populist media.
A second referendum?
Should there be a second referendum?
Should there be a re-run of the midsummer madness we all bore witness to this summer?
Do we want another ground hog day and a repeat of the same old, same old arguments that were hashed up last time?
We need to put our faith in representative democracy and parliamentary sovereignty. Representative democracy and parliamentary sovereignty has served our nations interests well in the past and they will continue to serve our nation’s interests well in the future. It is to representative democracy and our sovereign parliament we must turn to cut a way out of the mess we currently find ourselves in. We must place our trust, during these troubled times, in getting the only real mandate that counts in our democracy – the mandate of a general election.
Theresa May is proving to be an unimaginative, less capable Prime Minister than many had hoped for when she was selected to lead the Conservative Party. Her inability to tame hard-core Brexiteers will backfire at some point. Hopefully before Article 50 is triggered and the process become irreversible. She will be forced into calling a new election – BUT – before she, like Cameron, falls on her sword becoming yet another victim of neverendums – the country must really feel what it is like to live isolated from our economic neighbours. Without feeling the consequences of populism the chances are the teen-ager is still confident that a collision at 150 miles per hour is avoidable and could never happen to them. Sadly, on this occasion it looks as if the only way to get the teen-ager to slow down is to deduct points from their driving license and up their insurance claims.
In the meantime for those of us who value democracy, the rule of law and parliamentary sovereignty it is imperative that we continue to fight for stability, continuity and our cherished constitutional traditions as best we can.
Next up … why the referendum was not clear.