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.

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.