Would a second EU referendum be undemocratic?
28 June 2016
It is only four days since the UK public narrowly voted to leave the European Union. A lot of people are now arguing for a second referendum. But would that be democratic?
Like many people who voted to remain, I have been feeling down about the result. My social media feeds have been full of many of the states of grief, but mostly anger and denial. It is denial which, I think, is motiving the calls for a second referendum. I am therefore wary, as someone who would love for this all magically to go away, of the allure of those arguments. But, we are in uncharted waters. Millions are calling for a second referendum on the original question, and now likely Conservative leadership candidate Jeremy Hunt has called for a second referendum to decide whether the country would accept an exit deal.
Hunt’s argument is enticing, at first glance anyway. He begins by saying that ‘The people have spoken – and Parliament must listen“. But – but! – “we did not vote on the terms of our departure“. In short, he wants to open up “a space for a “Norway plus” option for us – full access to the single market with a sensible compromise on free movement rules”. And he thinks the best way to make that happen is to negotiate an informal deal before invoking Article 50 (therefore setting a two-year time limit) and “once again… trust the British people to decide on whether or not it is a good deal”.
What Hunt doesn’t say is what the options would be in that referendum. Obviously ‘yes’ would mean attempting to the EU under those new terms. I say ‘attempting’ as by definition an informal deal would be just that, and it could be withdrawn after Article 50 is invoked and before the UK leaves. That is a basic flaw in Hunt’s argument. But more interesting is what ‘no’ would mean: would it mean staying in the EU, or would it mean invoking Article 50 and trying for a better deal, or would it mean leaving the EU with no deal?
It’s fiendish. And I haven’t even got to the main question posed in the title: would any of that be ‘democratic’?
The democratic deficit
I am afraid there is no easy answer. That isn’t just a reflection of my own views as a remainer. It is a reflection of the UK’s unwritten constitution, and what I see as a basic flaw in the thinking behind the original referendum.
Let’s start with a brief guide to our unwritten constitution. There was a lot of talk during the Referendum debate about ‘sovereignty’, and particularly the perceived threat to our classic notions of Parliamentary sovereignty by the European Court of Justice and (though it wasn’t directly in issue), the European Court of Human Rights. On a basic level, it is correct to say that any court whose judgments bind the UK state, as both courts’ do, is likely to restrict what Parliament can do. That is because a law passed by Parliament can be effectively overruled or even struck down by the court. That is a simplification but it is basically what happens.
The counter-argument, which I agree with, is that to get on in a globalising world, it is necessary to sign up to international treaties. These are, in effect, contracts with other states where we buy, for example, access to a free market or a system of international rules, and in return Parliament decides to give away some of its ‘sovereignty’ to an international court which settles disputes between states within the larger system. There is nothing unreasonable about that in principle, though of course international courts need to be watched to ensure they do not exceed their agreed mandate.
In any case, Parliament retains its sovereignty as it can usually decide to withdraw from arrangements which no longer work for the country. Well, usually. Here is where it gets tricky. In our political system, Parliament doesn’t usually make decisions about whether to enter into exit treaties. That is done by the Executive, which essentially means the Prime Minister exercising the ‘Royal Perogative’. For more, see David Allen Green and this post on the question of whether triggering Article 50 would need Parliamentary approval. That’s not for today.
The point I am getting to is that, generally speaking, our democratic system puts all of the decision-making power in the hands of Parliament and/or the Executive. The reason that is essentially democratic is that we, the people, can vote everyone out every five years or so. In the meantime, our system of representative democracy allows Parliament and the Executive to do what they think best, although they will be lobbied by the public over individual issues and are to a large extent bound by their party’s line.
Five arguments for a second referendum
1. The instrumental argument
Which brings me to the referendum. How on earth does that fit in our democratic system? I think the only real answer to that is wherever Parliament decides it fits. And this is the first argument people are making for a second referendum. It’s basically instrumental. The Referendum was ‘non-binding’, i.e. it did not put in place a mechanism for leaving the EU if a majority voted ‘no’ – as if a referendum could truly bind Parliament, which it probably couldn’t. Therefore Parliament should do whatever it thinks is best for the country in deciding whether to implement it or not.
I think that is a bad argument. A referendum could never truly ‘bind’ Parliament, even if it said it did. And aside from that slightly technical argument, whatever one thinks about the manner in which the Referendum was conducted, there is no doubt that people who voted ‘no’ legitimately believed that if their view won out, we would leave the European Union. There is wriggle-room around when and how, but there is no real doubt that Parliament would be going back on a promise to the electorate if it simply refused to leave, or decided to hold a second referendum asking exactly the same question. Even if the UK would be making a terrible mistake by leaving, it was Parliament’s decision to call a referendum and, as Hunt says, “the people have spoken”.
2. The lies argument
A second argument for a re-run is that people didn’t have access to the full facts, or were lied to during the referendum. Therefore, it would only be right to let them decide again. I am dubious about that argument. All of the lies were exposed during the campaign but, as I have written, people simply didn’t listen. If we reran every vote where politicians lied, we would be re-running every vote. It would be a bad precedent to introduce, though in a case where there was a genuine lie which was not exposed duding the campaign, I could see this argument working.
3. The new facts argument
A third argument is that a Second Referendum would be necessary because new facts are on the table. The position has changed. People need to vote on the new reality. That new reality may be, as Hunt suggests, a particular exit deal. This argument is a bit more plausible, and reminds me of the Ladd v Marshall test which we lawyers use when asking a court to re-open a case because there is “fresh evidence” Lord Denning said that fresh evidence could be brought in only on three strict conditions, that the evidence couldn’t reasonably have been obtained for the first trial, that it probably would have an important influence on the result of a case and that it is ‘credible’
I think that isn’t a bad approach to apply here, though it is fraught with dangers. The main question would be: where does it end? How many referenda do we have to have before the issue is resolved? This highlights the fundamental risk in calling the original referendum without Parliament making clear what a ‘no’ vote would mean. Our unwritten constitutional system is vague enough without adding a further level of uncertainty through a non-binding taste of direct-democracy. The referendum asked a simple question about a highly complex issue, and it is no surprise that nobody is sure where we go from here. That is Parliament’s fault, as it voted for a referendum on particular terms, not just David Cameron’s.
4. The parliamentary responsibility argument
Here is a fourth argument. Parliament has a responsibility, under the usual system, to do what is best for the country, factoring in but not governed by what has been promised to the public. It is free to change its mind. A classic example is pre-election promises. Governments are regularly accused of betraying the people who voted for them by not fulfilling a manifesto commitment. On one view, the people have voted on the basis of particular policies and it is wrong not to implement them. But on another view, facts change and governments have to prioritise. People may be annoyed about manifesto promise failings, but it is hard to describe them as undemocratic.
I think that single issue referenda are different to manifesto commitments, in that there is an even stronger reason why Parliament needs to follow them (see above). But if, for example, it becomes increasingly clear that it would be disastrous for the country to leave the EU or accept a particular exit deal, it wouldn’t necessarily be undemocratic for Parliament, on a majority vote of its own, to put the breaks on. On one view, that would be more democratic within the UK’s system than most other options.
5. The fresh mandate argument
A fifth argument is that if we don’t trigger Article 50, and there is a general election, and a party wins on a platform of holding a second referendum, then that would provide a democratic mandate. I am dubious about this argument – again, I think that Parliament should do its best to implement the outcome of the referendum. I cannot see a fresh election being called before 2020 anyway. I suppose in the unlikely scenario that it was, and the even more unlikely scenario of an anti-Brexit pro-#EURef2 party being elected, then there would be a decent argument for a second vote.
So it’s not easy. To summarise:
- In our political system, generally speaking whatever Parliament and/or the Executive does within the powers assigned to them is ‘democratic’
- Referenda do not neatly fit into that system, so there is no hard or fast rule on whether ignoring the outcome of a referendum, or calling another on the same or different terms, would be ‘undemocratic’.
- But, in my view, once Parliament has told the public to expect a particular result if it votes one way or the other in a referendum, it should try its hardest to stick to that result, even if it was partly achieved by dishonesty (unless, perhaps, if the dishonesty was not identified during the vote, which wasn’t the case here).
- There might be an argument for having another referendum to decide on an exit strategy. But unless something genuinely new happens, I think it would be better for Parliament to handle this rather than subjecting us to an endless series of painful referenda.
- There might also be an argument for a second referendum if there was a general election before Article 50 was invoked, and the winning party promised a new referendum. But it’s messy, and would make a lot of people feel betrayed by our democratic system.
- I think the best argument for a second referendum is that the facts fundamentally change, perhaps because of a new deal or the UK economy tanking. But even then, the same dangers of endless referenda apply.
I appreciate that the above does not give a conclusive answer. I don’t think there is one. We are in uncharted waters and our constitution is unclear at the best of times. I also think that Parliament has messed this up in the manner in which the original referendum was set up, so there will be a legitimate range of options for what happens next. If you think you know the answer, please leave it in the comments below.