The People’s Vote: Marching for democracy and against authoritarianism

london-brexit-march
The People’s Vote March, 23 March 2019

On Saturday I marched, along with more than a million others (and what seemed to be a few hundred dogs), in support of a people’s vote on the UK’s impending exit from the EU. The estimate of the number of marchers feels right to me. I was one of the million who marched against the Iraq War in 2003, and the People’s Vote march seemed bigger. Setting off from Marble Arch at the appointed time, it took me, my two teenage children and my daughter’s friend four hours to get to Parliament Square. For most of the route it was less of a march than a shuffle to advance a few inches every couple of minutes or so. The speeches long over, thousands behind us were still making their way to parliament at well after five o’clock.

Despite the political crisis—a crisis that threatens our freedoms, our economy, our futures, and our political culture—it was a joyous, high-spirited, and hopeful occasion. Wit and intelligence abounded in the signs and placards carried by marchers; creativity and fun ran through the different expressions of outrage; there were drummers, guitarists, and mobile discos; many came in costume, and dogs were draped in signs and flags; and the occasion was characterized by an idea that we should all embrace: protest and partying are not mutually incompatible. It is possible to call out a government and a system for its appalling ineptitude, while at the same time dancing and having fun. It is worth comparing this with the joyless, aggressive and thuggish antics of the EDL, James Goddard and his “yellow jackets”, and almost anything associated with Tommy Robinson. The different forms of protest present different visions of the UK’s future: on the one side there is humour, dancing, diversity, creativity, hope, and jokes; on the other there is aggression, intimidation, exclusion, nastiness, anger, and death threats. I know which of the two offers a brighter political future.

Peoples-vote-marchProtests are vital checks on a slide to authoritarianism. Authoritarian governments—and Theresa May’s government aspires to be such—thrive on keeping their citizens to armchairs, light entertainment or shopping. Political participation is at best an inconvenience, at worst an existential threat to such governments. Our politics has been dominated by Brexit for the past three years, yet for much of that time citizens have been reduced to powerless, passive spectators of a chaos and crisis that deepens by the day. We are not asked what we think; rather, we are told—usually with reference to the referendum vote on an impossibly general question, to which little more than a quarter of the entire population gave an answer that has subsequently been divined as “the will of the people”—what we think. We are often reminded that the 2016 referendum was the largest democratic exercise in British history—even if the lies (on both sides) and criminal funding and electoral practices of the Leave campaign significantly devalue its democratic worth; but it is as if at every step of the way since June 2016, the referendum result becomes the reason why any further public engagement in the issue is out of the question.

Theresa May might have begun her premiership by initiating a national conversation to ascertain an approach to and form of Brexit that would work across the social, political and cultural divides. The referendum revealed that, by a narrow margin, a majority of voters wished to leave the EU, but it told us nothing beyond that. The deeper reasons behind the vote, and the voters’ visions, hopes and fears of a post-Brexit future were unclear. A robust, informed, transparent and open process would have advanced patiently and carefully by engaging with and listening to public views on all sides, and it would have used that preliminary stage as a guide to the subsequent and highly complex task of honouring the referendum result. It might even have been an opportunity to reinvigorate our political culture by devising processes and mechanisms that engage citizens, foster debate, and seek consensus, and by moving towards greater government openness and transparency.

This opportunity was squandered by May. Rather than starting a conversation and trying to build bridges, she gave her “citizens of nowhere” speech. Rather than learning more about the reasons behind the referendum result, she came up with her red lines, with little transparent consultation, and informed more by her own anti-immigration obsessions and her wish to appease the hard right of her party than by informed, evidence-based analysis. Rather than welcome input from across the political landscape, she worked with a disturbing determination to restrict debate, to oppose any attempts at giving the electorate’s representatives in parliament a meaningful role, and to limit the release of information. Her approach to Brexit has been characterized by evasiveness, dishonesty (the many promises that turn out to be anything but), and dour opposition to scrutiny, debate and normal democratic practices. Fortunately, her astonishing ineptitude and incompetence (her lack of agility, flexibility, imagination, charm and charisma; the absence of a coherent plan A or anything resembling a plan B; her constant tactical and strategic mistakes; and her hopeless general election campaign) have saved us from what might have been the most anti-democratic and authoritarian government in modern British history. Seen in that light, we should be thankful that we have been blessed merely with the most incompetent government in modern history.

Theresa May Speaks To The Nation After Asking EU For Brexit Extension
Theresa May delivering her statement to the nation, 20 March 2019

Many of Theresa May’s failings came together in her statement to the nation last Wednesday. It was graceless and devoid of anything new. It was a tactical disaster: attacking the very constituency (Members of Parliament) that she needed to persuade was incomprehensibly stupid. And it demonstrated her demagogic, authoritarian instincts: casting the Brexit crisis in terms of parliament versus “the people”, and presenting herself as “on the side” of the people, she revealed her ongoing delusion that she divines what the people think and that she is in some mystical sense one of us. It was a speech more befitting of a dictator than of a prime minister in a representative democracy. Irresponsible, reckless and dangerous—had May forgotten that the issue of Brexit has resulted in the murder of one MP and intimidation and death threats directed at countless others, or did she not care?—we are fortunate that its crassness and stupidity became immediately obvious to almost everyone.

dog theresa mayIt is unsurprising that in the days since May’s statement millions, both online and on the streets, have come out to tell her she is wrong in claiming to know what we think and to suppose that she is on our side. And, perhaps, more than her delusions and her authoritarian tendencies, it is her inability to listen to and engage with others—outside the hard-right extremists in her own party, that is—that amounts to her greatest failing. Hence, the importance of petitions and protest: the march, as well as the online petition to revoke Article 50, are opportunities to engage and be heard. If we are to reinvigorate our politics and to involve everyone in working out our future, then we need these opportunities. If the political system does not provide them, then the people will eventually do so themselves. A less incompetent prime minister might have enabled better ways of listening to and engaging with the public—and what a political legacy that would have been. Theresa May failed to do so, which is one reason why her legacy looks set to be the most dismal in modern British history.


Although the march was anti-Brexit, and it is reasonable to assume that almost every marcher was a Remainer, it is worth considering the core issue of process that lay at the heart of the event, and which is as relevant to die-hard Leavers as it is to Remainers. The march was calling for a people’s vote. That those of us who marched are Remainers who believe that Brexit is, and will be, a tragic, humiliating national disaster is irrelevant. In a democracy, it is natural to call for votes on matters of national and constitutional importance—and Brexit is, without doubt, the single most important matter of my lifetime; what is strange is for purported democrats to fiercely oppose a democratic vote. Few Remainers are under the illusion that a further popular vote would be a guaranteed win for Remain. Indeed, there is a good chance that Brexiters will triumph in any such referendum. All that remains, hopefully, to be seen. But for now we should focus on the question of process and how that will help us find our way out of the current crisis. The case should be made that central to process of Brexit is a confirmatory vote by the public.

It is now almost three years since the EU referendum. Weight should be attached to that result, but this weight must surely diminish over time. Demographics change: people die, and new voters come of age. Around 600,000 Britons die each year, and 700,000 reach voting age; thus, nearly two million voters in 2016 are no longer with us, and approximately two million have joined the electoral register. There has to come a point at which more weight is attached to voters who are alive than to those who are deceased. With each passing day, the “will of the people” shifts a little more towards the “will of the people RIP”.

Many of those who are still with us may wish to exercise their fundamental democratic right to change their minds. What any of us thought on one day in June 2016 is not set in stone. There are many reasons why people may subsequently come to revise, and in some cases to reverse, their decisions. The most obvious are that circumstances change and that more information comes to light. Back in 2016, the debate over EU membership was somewhat embryonic. The issue had never been an overriding preoccupation of the British electorate (the economy, health, education, and crime were usually far more pressing issues in the minds of voters), and it was evident that most people’s understanding of the issues was limited. Thanks to the referendum result, Brexit has dominated politics for the past three years, and we are all a lot more informed about what EU membership means, about single markets and customs unions, about trade agreements and regulations, about goods and services, about tariffs, about the WTO, about car manufacturing, and about the Good Friday Agreement and Northern Irish history and politics.

Furthermore, in witnessing the day-to-day difficulties and complexities of implementing Brexit, we are more familiar with the practicalities of Brexit. Leaving the EU is not, as it was in 2016, simply an idea that could be achieved in one of several vague ways; it has become a concrete policy that is being worked out, occasionally successfully but more often painfully, in all its difficult detail. It would not be surprising if many voters would now revise their view in light of this—and this applies to both sides, since some have clearly reconsidered their previous support for Remain in light of their perception of the EU’s negotiating tactics.

These are compelling reasons for a second referendum. But in addition to them, there is the matter of ensuring a robust, democratically legitimate process—and one that enables a way out of the current crisis. There should be no rerun of the first referendum. Rather, voters should be asked to choose between a form of exiting the EU agreed in parliament and remaining in the EU. The nature of the former is open to debate: it might be a no deal, or Common Market 2.0, or a Norway option, or May’s deal, or something else. But it needs to be concrete, clear and achievable (either it needs to have been agreed with the EU, or it stands a realistic chance of securing that agreement). Then it needs to be put to the test. A withdrawal that fails to command a majority among the electorate surely deserves to be rejected. On the other hand, a withdrawal that passes the test is one that has survived a rigorous democratic exercise.

It is never clear why Brexiters, some of whom spent decades campaigning for a referendum, would resist a confirmatory vote—unless, that is, they know that any form of Brexit that takes detailed shape would be vastly unpopular. None of them, it appears, believes that their own version of Brexit would be supported by a majority of voters. If Theresa May really believes that she has understood the will of the people, then she should not be afraid of putting her deal before the public. One way out of the impasse would be for parliament to approve her deal on condition that it be put to a confirmatory referendum. As an opponent of her deal, I would be satisfied with this outcome; but do the proponents of her deal fear that a confirmatory vote would kill it off for good?

A confirmatory vote has, therefore, two advantages. First, it offers a way out of the crisis. Potentially, it increases the likelihood of majority support in parliament, since many who have doubts about any particular approach may nevertheless support it if they know it will be subject to the further test of a popular vote. Second, it ensures that whatever form of Brexit is agreed by parliament acquires greater legitimacy. A confirmatory vote would involve a wide public debate, detailed scrutiny of the proposed withdrawal, and a referendum. But, whereas in 2016 nobody knew what Leave meant, in a second referendum it would be clear precisely what a vote for Leave means. If it succeeds in passing the popular test, then we can hardly complain about Brexit on democratic grounds. But without a confirmatory vote, Brexit becomes something that is imposed on the public without consultation and against its will. If Brexit turns out badly, then the architects of such a Brexit will rightly be held fully accountable—and it will be reasonable to maintain that any such Brexit lacked legitimacy, with all the unpredictable and potentially dangerous consequences that follow from any illegitimate policy.

Imagine if Theresa May somehow managed to get her withdrawal agreement “across the line”, sneaking a tiny minority in parliament thanks to arm-twisting, pork-barrel politics, shady backroom deals, and dubious tactical manoeuvres. What would be the democratic legitimacy of her deal? Surely we should aspire to more than getting a widely unpopular deal “across the line” by any means necessary; we should be aspiring for a withdrawal that commands widespread support, or at least acceptance, in parliament, and then majority support among an informed electorate who have had an opportunity to study, debate, and question the withdrawal agreement.

Theresa May is happy to be populist and appeal to the public when it suits her, such as when she called a general election and put herself at the heart of it, or when she toured the country trying to sell her deal to the public, even though it was MPs she primarily needed to persuade, or when she gave her disastrously misjudged statement to the nation last week. Last December, she was briefly keen to subject her deal to a public television debate—a perfect encapsulation of her tendency to favour persuading and hectoring others to agree with her, but to refuse listening to them or subjecting her position to a meaningful verdict.

Evidently, she has little confidence that her deal would pass the popular test; this is one of the reasons why she resists a referendum. Nevertheless, her main stated argument against a referendum is that it would be divisive. Aside from the fact that the UK is already obviously divided, it is not clear how imposing a vastly unpopular withdrawal agreement on the country would somehow bring people together—except, perhaps, by uniting them in angry opposition to the politicians who imposed the policy. Conjuring up the threat of increased populism and violence, as some opponents of a second referendum have done, is not only irresponsible, it is also manifestly cowardly and spineless in the face of those extremist minorities who advocate violent action until they get what they want. Moreover, it is also illogical. Angry protest is far more likely to follow a process that denies people a debate and a vote, than one that consults them, engages with them, and invites their approval or rejection. It also treats the electorate as sophisticated grown-ups who understand that, in a democracy, outcomes can be accepted if they are transparent, fair and truly democratic. I have been disappointed more often than not by votes and elections over the years, but if the process has been fair then I can accept the outcome (which is not the same as saying that I agree with it—it remains my democratic right to continue arguing against a policy or government).

There are numerous problems with referendums, but only if they are badly conceived or abused (and David Cameron’s 2016 referendum was guilty of both). If they present a concrete policy, are clear on the alternatives on which the electorate is being asked to vote, are supported by a well-informed debate, and are conducted according to transparent, fair and enforced rules, then it is hard to find fault with them on democratic grounds. The accusation that the democratic step of holding a confirmatory vote would be undemocratic is patently absurd. Parliament, contrary to many characterizations of it (mostly by the government and the right-wing press), has performed rather well throughout the Brexit process: it has endeavoured to hold the government to account, to scrutinize and debate government policy and actions, and to resist being the rubber stamp that Theresa May would like it to be, and it has had partial success in all these areas, despite the implacable opposition of the government and the increasingly problematic logic of loyalty to the party machine. It would be a positive step if the many sensible parliamentarians managed to seize control of the Brexit process from the catastrophically inept, authoritarian and deluded government; and it would be an even more positive development if parliament embraced the idea of a confirmatory vote as a way out of the crisis and a means of ensuring a robust, legitimate and democratic resolution of the Brexit problem.

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Brexit may never happen

A week ago today I posted on Facebook my ‘considered’ response to the EU referendum result: ‘Britain is fucked’ it read, capturing my end-of-the-world feeling. A week on—and certainly the most turbulent and dramatic week in British politics in my lifetime—and about the only thing that is clear is that nobody really knows what is going to happen. At best we can make only educated but partially informed guesses. (Partially informed because most information either about the referendum itself—for example, who voted and why—or about the immediate course of events—for example, who will win the Conservative party leadership contest, or how EU politicians are going to act—is unavailable). Like any guess, mine could well turn out to be wrong. History, after all, tells us that little is ever fully predictable, and that any number of factors can rapidly transform a situation. But for what it’s worth my guess is that Brexit will not happen.

This may simply be wishful thinking. I voted Remain and am strongly anti-Brexit for various reasons (which I have written about elsewhere). I do not intend to rehearse here why I think it is legitimate to oppose Brexit and work towards preventing it, except to make two general points. First, we live in a democracy and an open society (yes, I know both labels can be qualified but let’s not get too picky here), in which the right to express one’s views is valued and protected. Brexiteers may disagree with and oppose my position and arguments, but they are not entitled to shut down debate nor to stop campaigners from actively working for what they believe. Simply telling people to ‘accept the result’ will not do when nothing has actually been decided yet. Secondly, for a number of reasons I am not persuaded that the referendum is an example of ‘good’ democracy. This is undoubtedly a difficult argument, but I have written elsewhere (as have many others) about the legal, constitutional and democratic problems with the referendum. These problems deserve, at the very least, serious consideration as part of the ongoing debate.

There is a path to stopping Brexit. It is certainly not an easy one (but no path right now is), and it will depend on all sorts of factors aligning, but it is plausible—and we have already taken the first steps down it.

The first step, somewhat paradoxically, involved doing nothing. One of the few simplicities of the situation is this: in order for Brexit to happen, Article 50 of the Lisbon Treaty has to be invoked, thereby formally triggering a departure from the EU; until it is, there is no Brexit. Throughout the referendum campaign David Cameron insisted that, in the event of a Leave victory, he would within hours invoke Article 50. Not only did he not do this, but he also said that he would not do it, instead choosing to resign and toss this particular grenade to his successor.

This was a smart move (Cameron—a disastrous Prime Minister to be sure—has always been at his limited best when doing nothing). It buys time, a precious commodity when the stakes are so high. Leaving the EU would be a momentous decision affecting many millions both now and for generations to come, and whether one wants to remain or leave there is little sense in rushing the decision or allowing hotheads like Nigel Farage to dictate the agenda. By announcing he would be doing nothing, Cameron, perhaps finally realizing the gross folly of his referendum, was opening up the possibility that a way might be found to prevent the impending disaster he had done so much to create.

The response to Cameron’s move (or, more accurately, non-move) further suggests that minds are turning to how Brexit may be avoided. Although, in the aftermath of the vote, a few EU voices called for Britain to clarify its position quickly, these have now died down; instead, calmer heads are recognizing that the best course right now is patience. It is anyway clear that nothing can happen before September at the earliest, when a new Prime Minister will be in place.

The most likely successor to Cameron is Theresa May, an instinctively Eurosceptic Tory but one who nominally campaigned on the Remain side during the referendum. She is a sensible, pragmatic and highly competent politician; indeed, her low profile during the referendum is evidence of her smartness as a politician, since she steered clear of the Tory civil war, bolstering her credentials as a future unifier of the party. May has said that ‘Brexit means Brexit’, a statement which, if scrutinized for a few seconds, is actually fairly meaningless, but one which she has to make: in order to win the Tory leadership she needs to reassure the Eurosceptic-inclined grassroots of the party. But she has also indicated that, should she be the next Prime Minister, any negotiations to leave the EU would not begin at least until the end of the year. She, too, is finding ways to buy time.

So it is unlikely that anything will happen in relation to Article 50—and, therefore, that Brexit will even begin moving towards reality—before 2017. Taking time over this is good in itself: the situation is unprecedented, and it is apparent (and also somewhat incredible) that no-one, least of all those on the Leave side, had any coherent plan about what to do in the event of a vote for Leave. What it means is that the debate stays open, rendering the referendum as simply one event (possibly crucial, possibly not) within a longer discussion and political process over the question of Europe. Both sides have, therefore, the opportunity to mobilize and continue the campaign.

For the anti-Brexit side that will involve making a strong case against leaving the EU—and a stronger and more persuasive case than was made by Remain during the referendum campaign—and putting pressure on parliament. Britain is, after all, a parliamentary democracy, and ultimately it is parliament, not the Prime Minister nor a simple majority of the people, who determines if and when Article 50 is invoked.

The parliamentary numbers are on the side of anti-Brexit: in both the House of Commons and the House of Lords there is a clear majority for Remain. Of course, neither MPs nor Lords are in an enviable position. Whether they choose to adhere to their conscience, to their sense of the national interest, to the apparent will of the majority, to their party, to their constituents, or to their personal political ambitions will doubtless involve tortuous individual decision-making. But one can be sure of one thing: parliament will not act as a simple rubber stamp. Nor should it: the question of EU membership is the most important in recent British political history, and the referendum result, while delivering a small majority to leave the EU, seems some way off providing a clear and definitive answer.

More time also allows the EU to formulate its own strategy to encourage Britain to remain. The EU cannot, of course, force Britain to remain, but it can help give Remainers room to manoeuvre. Publicly the EU has categorically stated that there will be no informal negotiations with Britain, a sensible position which ensures that Britain is seen to have full responsibility for its decision. But one can be confident that privately there will be discussions, as well as energetic activity, that explore all the options. There are already signs of the EU sending out low-key messages that give hope to the anti-Brexit position: Helmut Kohl’s call for Europe not to act in haste over Brexit; and the careful support from Slovakia, which holds the current EU presidency, for any moves towards reversing Brexit, as well as Nicolas Sarkozy’s suggestion that Europe as a whole should have a referendum on border controls and freedom of movement, key grievances for Brexiteers that may help turn the heads among some of their number.

There is much, therefore, still to play for, and various possible outcomes. One path to Remain may be this: the next Prime Minister, aware of the constitutional and political difficulties of invoking Article 50, decides that the only reasonable way ahead will be through a general election during which the electorate can be presented with various worked-out courses of action. There is a good democratic argument to be made for insisting that the country must go to the polls before any Prime Minister (least of all one who is being elected by that small subset of the population, members of the Conservative party) invokes Article 50 and sets about negotiating an exit. After all, the referendum only posed the superficially simple question of whether to leave the EU; it did not ask what should be done in the event of leaving. But this is clearly an important question that should be voted on; for example, the public has not been consulted on whether Britain should remain a member of the single market, and it quickly became apparent during the campaign that nobody knew whether a vote to leave meant a vote to leave the single market.

This highlights one of the fundamental flaws of the referendum: a vote for Leave can mean so many things—the Norway option, the Norway-plus option, the Swiss option, the Canada/Australia option, or something else all together—none of which have been presented to the electorate in any manifesto. Given this, the result practically demands a further vote, possibly in a second referendum over the British negotiating position and what exactly is Britain deciding to leave, but preferably in a general election. Concerted pressure should be put on parliament and the government to recognize this: Article 50 should not be invoked without a democratic mandate and parliamentary approval for where any negotiations may lead.

I would contend that this is both a reasonable and plausible way ahead. It does not guarantee that Brexit will not happen. It might, but at the very least there should be public consultation over what Brexit means and entails. But further public consultation allows the Remain side to regroup and campaign against Brexit, with the realistic possibility that Brexit itself will be reconsidered. And to reiterate what I wrote above: in a free and democratic society, it is entirely appropriate for people to continue campaigning for what they believe in—Brexiteers cannot claim that the referendum result somehow gives them a monopoly of the debate or the politics.

Of course, there are so many variables that any number of outcomes are still possible. The past week would seem to illustrate Lenin’s comment that ‘there are decades where nothing happens; and there are weeks where decades happen’. And we’ve got several months ahead of us in which countless things may happen. Whether Gove or May (or, more improbably, one of the other three) wins the Tory leadership contest; the voices coming from Europe; the financial markets and economic forecasts; whether Donald Trump wins the US presidential election; whether Labour can form a coherent opposition—all of these are examples of factors that could affect the course of events. And there is always a high chance of completely unpredictable events that are impossible to factor in but which could transform the situation.

Finally, it is worth noting that a large part, but by no means all, of the Establishment oppose Brexit—and the Establishment traditionally finds a way of securing its ends. I do not make that point approvingly; I merely note it as a further reason for doubting whether Brexit will ever happen. Still, one ought to be honest. As an opponent of Brexit myself, I am not dismayed that on this issue the Establishment share my views. Brexit creates some fascinatingly odd alignments: many millions of voters who identify as anti-Establishment found themselves lined up on the same side as Cameron, the banks, the City, and so on. That in no way dilutes their anti-Establishment position; EU membership was never the right issue to do battle with the Establishment. (The real question for the anti-Establishment is this: are you a nationalist or an internationalist? If the latter, then you should campaign to stay in the EU and fight the battle more widely across Europe, by, for example, working towards reform of the EU itself.)

If my assessment of the situation is correct (and it may well not be), then there is a reasonable chance that Brexit will not happen. There are good arguments for why it should not happen; there are moves, whether intentional or not, to buy time that increases the chances of it not happening; there are perfectly democratic and constitutional ways for preventing it from happening; and there is a potentially powerful combination of Establishment and anti-Establishment voices who can stop it from happening. For now, at least, nothing has been decided. If this was a football match, Brexit would be leading 1-0—with the second half about to start.

A reckless and cavalier abuse of democracy: The democratic failings of the EU referendum

The EU referendum has inflicted potentially huge damage on democracy. Superficially it has the appearance of a great democratic event. In reality it risks bringing democracy into disrepute. In the wake of the vote for Brexit, Kenneth Rogoff, a professor of economics and public policy at Harvard University, has written an excellent, thoughtful article on this: ‘Britain’s Democratic Failure’. What follows is largely my own reiteration and comment on his argument.

At the outset it is important to be clear about two things. The first is that I unequivocally believe in democracy. The quotation attributed to Winston Churchill that ‘democracy is the worst form of government apart from all those other forms that have been tried from time to time’ expresses a view that I share. In relation to the referendum the question is not about democracy versus anti-democracy, but about whether the referendum was the best democratic way of deciding the issue of Britain’s EU membership. As I suggest below (and as Rogoff argues) it was actually a fairly terrible way of going about the decision.

Secondly, it needs to be emphasized that the question posed by the referendum was not a typical political issue. The gravity, importance and implications of the result were repeatedly discussed during the campaign—although little of this resonated with the wider public. The overwhelming majority of legal, constitutional, economic and financial experts warned of the dangers of Brexit, both in the short and long term; at the very least, this was an indication that the issue needed to be treated with great care and thoughtful consideration.

It is right that in a democracy questions of such fundamental importance as EU membership are decided democratically. But was a referendum the best way of doing so? And if referenda are in general a good way of making (some) political decisions, was the specific vote over EU membership a good example of a referendum? There are persuasive grounds to answer ‘no’ to both of these questions, and in particular the second of them.

To answer the first question it is important to distinguish between two forms of democracy: direct and representative. Direct democracy involves the people (or, more typically, those people who qualify as citizens) as a whole deciding on policy. There are few examples of direct democracy: the most famous is ancient Athens in which adult male citizens (constituting about 10% of the overall population of the polis) voted individually and directly on all legislative and executive matters. Some modern democracies—notably Switzerland and some constituent states of the USA—resort to direct democracy (through referenda) on various issues, but no modern democratic system can be described as a direct democracy.

The British political system is an example of a representative democracy: citizens do not vote directly on legislative and executive matters, but rather elect representatives to decide these matters. There are very good reasons why representative democracy is vastly preferable to direct democracy. Unlike ancient Athens, modern democracies are not small city-states in which the labour of women, slaves and foreigners enables the small number of citizens to participate in politics; they are large, highly complex societies and economies in which universal participation in politics would be impossibly unwieldy, beyond the capacity of most individuals to make informed decisions, and fraught with political risk. Representative democracy, by entrusting decision-making to elected officials dedicated to the sophisticated and difficult task of politics, is a rational and sensible arrangement for modern society and one that minimizes the risks of direct democracy.

The EU referendum illustrates some of the risks of direct democracy. On an issue of long-term and national importance, a fraction over half the voters (and little more than a third of the electorate) has overruled the wishes of a fraction under half the voters (and nearly two thirds of the electorate). It invited members of the public to decide on an issue likely to lead to national and international instability, with unpredictable risks and dangers both to Britain and the wider world. Many British citizens are educated and well informed, and are capable of weighing up the issues in a balanced, intelligent, critical and careful way. But many more are not. It is clear that many voters had little real idea of the issues; many voters engage rarely, if at all, in political debate, and, in so far as they do, rely on tabloid newspapers for their political information. Furthermore, there is the possibility that extraneous and irrelevant factors—the weather on polling day, the national mood in relation to Euro 2016, prejudice against immigrants that had nothing to do with the EU debate, a vote against Cameron or a vote for Boris (rather than a vote on EU membership), a vote based on no more than instinct or emotion—played a part. Any national vote is liable to be affected by contingency; the national mood now is not the same as the national mood a few months ago or the national mood as it will be in a few months’ time.

The referendum delivered, therefore, a snapshot of a deeply divided public mood on a particular day, and a result that statistically involved only a tiny margin between those who voted Leave and those who voted Remain. And yet the result is likely to affect many millions both in Britain and abroad who did not vote, as well as generations of people to come.

Rogoff comments that ‘the real lunacy of the United Kingdom’s vote to leave the European Union… was the absurdly low bar for exit’. In other words, the problem was not so much that a referendum was held in the first place, but rather that the specific EU referendum was fundamentally flawed in its design and conception. Above all, a ‘decision of enormous consequence… has been made without any appropriate checks and balances’. In Rogoff’s words: ‘This isn’t democracy; it is Russian roulette for republics.’

This is surely right. In a robust democracy, even comparatively minor issues go through rigorous and careful procedures. Checks and balances are built into the process. Legislation is debated and voted on several times; it has to pass through committees and both houses of parliament; and bad legislation can be amended or repealed. Select committees scrutinize the work of the executive; parliament holds the government to account. In other words, for all its problems, idiosyncrasies and weaknesses, parliament works according to procedures designed to ensure political decisions come under thoughtful consideration and are not rushed. Even for minor laws, parliamentary procedure is robust and rigorous, embodying important checks and balances.

The debate over EU membership is far from a minor issue; on the contrary it is the most important in recent British politics. Yet it is hard to claim that the referendum was designed with the robustness and rigour normally found in British political decision-making. To allow a decision of this magnitude to be reached by a simple majority of the public on a single day after a campaign of a few weeks (and of extremely poor quality) would seem laughable if it were not so tragic. The absurdity of this was compounded by the fact that the electorate were offered the option to leave the EU but without any proper debate or information about what would happen if that option was (as it turned out to be) successful. In effect the referendum was offering two paths, but one of which was blind, difficult and lacking in any map or guide.

For all this the Prime Minister bears a heavy responsibility. For it was Cameron who pledged a referendum—not for democratic reasons but in the expectation that by doing so he would end divisions within his own party and see off the threat of UKIP (instead, in a grim irony, he exacerbated divisions and handed victory to UKIP). Worse than his high stakes gamble—he bet the nation, and possibly Europe, in order to win a narrow tactical victory—was the reckless and ill-considered design of the referendum itself. There were various ways in which he could have built checks and balances into the process: he might have demanded a demonstrably clear majority (e.g. 60-40) of the voters, or a majority of the electorate as a whole; he might have insisted that the outcome of a Leave vote in the referendum would simply trigger a second referendum at a defined point in the future, allowing for further consideration and debate as well as a much clearer understanding of exactly what Brexit would entail; he might have required that an outcome of Brexit was only valid if all four constituent countries of the United Kingdom had voted in favour of it; he might have indicated a clearer role for parliament in the decision; or he might have implemented two or more of these checks and balances. But he did none of these things, doubtless fearful of antagonizing UKIP and the right-wing of his own party. The referendum was a hubristic abuse of democracy on the part of Cameron that threatens to bring democracy itself into disrepute.

However, an important note needs to be added to the above. In a campaign of extensive mendacity, the Leave campaign did not have a monopoly on lies: the Remain camp told a few too. Cameron claimed that the day after a Leave vote he would invoke Article 50, thereby irreversibly beginning Britain’s exit from the EU. Not only did this not happen—it was never likely to, and was presumably a dishonest but unsuccessful campaigning scare tactic—but the claim was fundamentally dishonest in the first place. Neither constitutionally nor legally is it in the power of the Prime Minister to trigger Article 50; rather it is parliament’s decision whether and when the process of Brexit begins. We may be grateful that, despite Cameron’s cavalier and reckless abuse of democracy, British constitutional law has within it a potentially vital parliamentary check on the ill-conceived referendum and its disastrous outcome.

Nick Barber, Tom Hickman and Jeff King: Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role

Nick Barber, Tom Hickman and Jeff King: Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role

This is an excellent contribution by three experts on constitutional law to the Brexit debate, specifically in relation to the issues surrounding Article 50. It presents a clear and convincing case that, both constitutionally and legally, it is parliament rather than the Prime Minister who decides on triggering Article 50 and hence Brexit.

UK Constitutional Law Association

Barber-Hickman-KingIn this post we argue that as a matter of domestic constitutional law, the Prime Minister is unable to issue a declaration under Article 50 of the Lisbon Treaty – triggering our withdrawal from the European Union – without having been first authorised to do so by an Act of the United Kingdom Parliament.  Were he to attempt to do so before such a statute was passed, the declaration would be legally ineffective as a matter of domestic law and it would also fail to comply with the requirements of Article 50 itself.

There are a number of overlapping reasons for this. They range from the general to the specific. At the most general, our democracy is a parliamentary democracy, and it is Parliament, not the Government, that has the final say about the implications of the referendum, the timing of an Article 50 our membership of the Union, and…

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An immediate fightback against Brexit?

Should there and could there be an immediate fightback against Brexit? There are already signs that this is being considered. Some parliamentarians are suggesting that parliament should block Brexit; others are calling for a second referendum; millions have signed a petition against the referendum result; and even some Brexiters are showing hesitancy about triggering Article 50. Right now Britain remains part of the EU, and it is not clear when, or even if, Article 50 will be triggered.

Brexiters will argue that the referendum was a transparent democratic exercise that reflects the will of the people, and that there would be no justification to go against the result. They will plausibly claim that to ignore the result would be outrageously undemocratic, and would confirm how an establishment elite treat the wishes and concerns of the majority of British people with disdain. It is a powerful argument, and one that looks, on the face of it, unanswerable.

But it may be worth, at the very least, thinking through some possible counter-arguments. For this is undoubtedly the worst political crisis in Britain in any of our lifetimes. The country is in a febrile, chaotic, incomprehensible mess, at risk of falling apart, and in danger of legal, economic, political and social turmoil that could take years or decades to overcome, if indeed they will ever be fully overcome.

The following comes with a caveat: it consists of initial thoughts about an unprecedented situation, and one that is likely to remain highly unclear for some time to come. My points are intended primarily as a contribution to a debate rather than as a fully worked out position.

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The referendum numbers are worth considering. In a population of 65 million, 45 million were registered to vote (some, mostly the young, were eligible to vote but were not registered). Of that electorate, more than a quarter did not vote; of those who did, 17 million voted Leave and 16 million Remain. In other words, about 38% of the electorate voted to leave the EU, or 26% of the population as a whole. The lives of 65 million people have been decided by 17 million people. Only one out of every four people on the streets of the UK voted for Leave.

Of course it can be argued that my presentation of these figures is a sleight of hand. For example, a large part of the population consists of children, and it is necessary to distinguish between the population as a whole and those eligible as citizens and as adults to form the electorate. Nobody would seriously work out voting percentages in an election based on the population as a whole.

But the referendum was not the same as a normal election. In a general election, for example, one knows that whatever the result there will be another election in a few years’ time. The teenager disappointed by the 2015 election result at least knows that she will get to vote in the next election; but the teenager disappointed by the 2016 EU referendum result will have no such opportunity. Unlike an election, therefore, the referendum imposes a result upon millions of young people, and countless millions yet to be born, none of whom has any apparent prospect of revisiting, let alone reversing, the result.

It is worth reflecting here on one of the claims for classical conservatism. Edmund Burke described society as a partnership between ‘those who are living, those who are dead and those who are to be born’, while G.K. Chesterton argued against risking the tradition that links past, present and future by submitting ‘to the arrogant oligarchy of those who merely happen to be walking around’. In the referendum, 17 million people ‘who merely happen to be walking around’ have come to a decision that will affect generations to come.

All of this exposes deep flaws in the referendum process, and for that David Cameron bears a heavy responsibility. Most people, and he above all, knew the enormous risks of a vote to leave the EU, but he chanced it anyway, arrogantly assuming that his gilded life of success would secure a narrow political gain amid his own party problems. He might have allowed 16- and 17-year-olds to vote; he might have insisted that a majority of the entire electorate was required for a decisive result; he might have demanded that all four constituent countries of the UK had to be of one voice. In short, he could have built in some reasonable safeguards to ensure that a vote on such a momentous issue was more inclusive of the population, and required a high threshold for radical and extremely uncertain change.

Instead, what resulted was a referendum determined by a simply majority, and one that was always at risk—and particularly so after a Leave campaign based on populist slogans, dishonesty and base appeals to prejudice and xenophobia—of delivering a result that amounts to the rule of the mob. It is uncomfortable to make this point, but such is the crisis that numerous difficult and discomforting thoughts occur to those of us committed to progressive politics. But it is becoming increasingly clear that many people had little idea what they were really voting about; that many people regarded the vote as a simple protest against the government or the establishment, rather than specifically a vote on EU membership; that some Leave voters even hoped that Remain would win; and that many people were ill-informed and lacked the ability or the will to question critically the many lies and exaggerations of the Leave campaign (and, indeed, the relentless negativity of the Remain campaign).

But one does not have to argue that a dumbed-down political culture, in which, at best, a diet of tabloid junk journalism fuels the political views of large parts of the population, is a reason why there should never have been a referendum in the first place. For how many of us truly grasped the issues?

I can only speak personally here: I consider myself a well-informed elector, someone who has studied and taught on politics, someone who has read many things on the constitution, on sovereignty, on democracy, on the EU, someone who follows politics and keeps up to date with a wide range of commentary, someone whose work and research means I have to possess a modicum of understanding about economics, finance and broad social and political issues. And yet I did not feel truly qualified to vote on an issue of this importance. I have gone on record as saying that I like the EU and believe that it is in our interests we remain a member of it; I have also gone on record as saying that there are problems with the EU, and that some of the criticisms of the EU seem merited. I have been very happy to contribute my thoughts to the debate. But when it comes to making a decision on the issue, as opposed to being part of the important conversation about the issue, there are people, often with direct experience of working with the EU or with a broader perspective on British society and the economy, who are better placed and better qualified than I am.

The democracy we have is a representative democracy. We elect and pay for MPs whom we entrust to make informed and considered political decisions. We give them responsibility in areas over which we have limited competency. We choose them on the basis of their manifestos, and we get regular opportunities to choose someone else. In short, we entrust questions of national importance to parliament. This does not mean that we cannot debate and attempt to influence parliament; we can. But ultimately parliament is uniquely positioned to consider and make political decisions. There seems no good reason why, on the issue of EU membership as on any other political issue, it should not have been the responsibility of parliament to make the decision.

And, constitutionally, the referendum is only advisory on parliament. Westminster could, if it wanted, regard the referendum as an extensive opinion-gathering operation, and it could consider the wishes of 52% of voters as one factor to put alongside their own expertise as they deliberate the future relationship between Britain and the EU. MPs could note the referendum result but decide on continued membership of the EU based on their own understanding and knowledge of the national interest.

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It is only fair to note that the Prime Minister pledged the referendum during the last parliament and that this pledge was part of the Conservative party’s election manifesto last year. The Tory government was elected on this manifesto and it had, therefore, a duty to implement it. The process has been transparent and democratic. Any suggestion that the referendum result should be ignored or overturned undoubtedly risks looking like the complaint of ‘bad losers’. Democracy always involves some people not getting the result they want, and the expectation that they accept that. I would only reiterate that the referendum may not, for the reasons I mention above, be strictly comparable to normal democratic exercises.

Politically any attempt to sidestep the referendum is fraught with risk, so much so that I suspect it highly unlikely to happen. The popular fury and political turmoil if the result were ignored might be dangerously uncontrollable. On the other hand, almost all the possible paths ahead are full of risk. The fact is that the referendum has generated a crisis in which normal politics, and the old political rules and certainties, may no longer apply.