A new “People’s Vote”?
Less than six months now remain until the legal date for Brexit of 29 March 2019. In the last few days there have been some more optimistic-sounding briefings on both sides of the Channel about the prospects for agreement, but these were quickly toned down. There is still no agreement, either within the United Kingdom or between the UK and the European Union, on detailed terms of the initial Withdrawal Agreement, let alone the new long-term bilateral relationship. Meanwhile an impressively growing nationwide movement calls for any eventual agreement to be put to a “People’s Vote”, i.e. a referendum. According to circumstances this could be presented together with the option of “No Deal”, or indeed with the further option of retaining EU membership.
The Conservative Government, under pressure from hard-line Brexit supporters, rules out a second referendum. It says this would subvert or deny the “democratic” decision taken by UK voters in the 2016 referendum. The Labour Party Conference in September 2008 kept open the option of a second referendum as a second best to a general election, in the event of failure to secure a Brexit deal within the legal time limit. Both the major UK parties are deeply split over the idea. While many politicians are keeping their powder dry, popular and political support for a People’s Vote is growing.
Much argument is bandied about concerning what is or is not the “democratic” course that the UK should take. This article looks at the conceptual aspects of democracy in relation to the arguments over a possible referendum.
The meaning of democracy
The classic definition of democracy, in the Oxford English Dictionary, reads:
“Government by the people: that form of government in which the sovereign power resides in the people as a whole, and is exercised either directly by them (as in the small republics of antiquity) or by officers elected by them. In modern use, often more vaguely denoting a social state in which all have equal rights, without hereditary or arbitrary differences of rank or privilege.”
This neatly encapsulates the wide range of meanings which people attach to the word democracy. It has no single, settled national or international meaning. Given that the Athenian version of rule by decision of all the people (which in reality meant the free male citizens only) is impracticable in modern states, most genuinely democratic countries, including all 28 EU members, opt for some version of representative democracy. Deputies are elected or otherwise appointed at intervals to national, and in some cases regional, parliaments. In some systems, like the UK, government ministers are appointed from among these elected members and are directly or indirectly answerable to the parliament or assembly. In others, as in France or the United States, a directly elected executive president appoints ministers from outside the parliament or assembly but depends on votes in that body to get the government’s legislative proposals enacted. The details of government/parliamentary relationships vary widely, but the general pattern is that ministers propose legislative action which then has to be approved, and may of course be amended or rejected, by parliaments as well as being subject to scrutiny and potentially to criticism or rejection by the national courts.
Although the 2016 referendum on Brexit was advisory and not legally binding, the UK Government has chosen to regard it as politically binding, accepting the argument of Brexit supporters that it represents a once-for-all decision which cannot be changed. That is a highly debatable position. As the eminent economist Paul Samuelson is reported to have said, “When events change I change my mind” (the same remark is widely attributed to Maynard Keynes). The former UK Secretary of State for Exiting the EU David Davis is reported as saying in 2012 that “A democracy which cannot change its mind is not a democracy”. Davis was arguing in favour of a referendum on leaving the EU, but the argument applies equally in the opposite direction. Governments and parliaments, like individuals, need to retain (and frequently exercise) the right or duty to revisit previously held positions and, if warranted, to change them. Policy on Brexit is not exempt.
The term “democracy” is frequently abused, for example when it is used as a cover for political actions and structures that are not democratic at all. Totalitarian governments regularly appoint party placemen to national assemblies which meet at intervals to rubber-stamp the actions of the political leadership. An experienced internationalist once quipped to me that if a country called itself the “Popular democratic republic of X”, you could be certain that it was neither popular nor democratic.
Democracy in the European Union
The EU’s legislative function is exercised by the 28 democratically-elected governments, all of whom are represented at all the different levels of the Council of Ministers. The ministers who participate in EU decision-making are responsible to their home governments to justify the decisions in which they take part. Additionally the European Parliament, comprising directly-elected national representatives in rough proportion to national populations, now has highly developed co-decision rights over legislation, side by side with the Council of Ministers. It has recently asserted a much more active role in the five-yearly selection of the President of the European Commission.
When opponents of European unity attack the EU for being undemocratic and run by unelected bureaucrats, they usually have in their sights the various administrative organs of the EU, pre-eminently the Commission whose current members are nominated one each by the member governments to preside over the administrative bureaucracy. These are not personally elected. The Commission has the duty of enforcing Union law, together with a right to propose legislation for the consideration of the member states. However it does this under the watchful eyes of the Council of Ministers and the Parliament. In cases where the Commission does have the legal right to issue regulations which are directly enforceable in all the member states, these are on practical and implementation measures such as health and safety, agreed and carried out within the ambit of legislation or decisions approved by ministers.
Some countries have provision for public referenda written into their constitutions as a normal tool of government. Perhaps the most prominent example is Switzerland. Referenda are constitutionally required if a law involves a change to the constitution, or membership of a supra-national body or one that involves collective security obligations. In such cases, the majority of both the people and the cantons is required for the law to pass. In addition, the constitution permits any citizen who can muster 50,000 signatures on a petition opposing a law passed by the Federal Assembly, or 100,000 signatures on a proposition for constitutional amendment, can force the Government to hold a referendum on it. Some EU member states like Denmark and Ireland require EU Treaty changes, which must be unanimously agreed and ratified by all member states, to be put to a public vote. The UK enacted a similar provision in 2012, but it was repealed in 2018 by the European Union (Withdrawal) Act.
Referenda in the UK
Referenda are not a normal part of the UK’s political system, which relies on parliamentary democracy. Nevertheless they have been held a number of times on an ad hoc basis, mainly to settle issues of governance in constituent parts of the UK. Specifically, referenda were held in Northern Ireland on aspects of sovereignty and governance in 1973 and 1998 (regarding acceptance of the “Good Friday” peace agreement); in Scotland in 1979 and 1997 on aspects of devolution of powers, and in 2014 on independence from the UK; in Wales on devolution issues in 1979, 1997 and 2011; in London on establishment of the Greater London Authority in 1998; and in some UK cities on the direct election of local mayors.
The UK has held nation-wide referenda only in 1975, on whether the UK should remain in the European Communities; in 2011 on whether the UK should move to an alternative vote system in national elections; and in 2016 on whether the UK should leave the EU.
The EU has a controversial record on the use of second referenda, particularly because Treaty changes have to be adopted by unanimity of all member states and there is inevitably heavy pressure on a reluctant member state to conform. In Ireland a referendum decision in 2001 to reject the Nice Treaty was reversed in 2002, and a similar decision in 2008 to reject the Lisbon Treaty was reversed by referendum in 2009. In Denmark a referendum vote to reject the Maastricht Treaty in 1992 was reversed in 1993. In France and the Netherlands votes in 2005 to reject the proposed European Constitution were countered by later acceptance of the Lisbon Treaty,
These examples of reversals of referendum decisions took place on what were in substance the same propositions, and there was widespread criticism of the EU for “bullying” what were mainly small countries into line. The issues in each case turned on matters of EU structure and governance.
The case for holding a second referendum in the UK on Brexit is different, given that the arguments are not merely about constitutional matters but concern the minutiae of future economic and administrative relations. So much detail about the ramifications of Brexit and its potential economic and social consequences has become apparent since 2016 that it is essential, so the People’s Vote argument runs, for the UK public to revisit the issue in order to decide whether the proposals on the table, or indeed Brexit itself, are what they really want.
Short-term and long-term
A fundamental issue of policy at any level of government, including international groupings such as the EU, is how to reconcile what are perceived to be the long-term interests of populations with their legitimate reactions to changing events. In the case of the EU, 70 years of progress in the creation of long-term cooperation and stability based on binding contractual obligations undertaken by the partners came close to being seriously derailed by the financial crisis of 2008 and consequent Euro-zone problems, and then by the migration crisis of 2015-16 whose political cause lay outside the EU but had severe effects within the Union. Faced with circumstances like those, any population will ask: “Is this organisation any good to us?” and will react to current problems rather than to any evidence of longer-term benefits, however well-justified this may be statistically.
Longer-term efforts to build up the EU and lock in its many hard-won economic and social reforms must respect public attitudes that are conditioned by short-term events. In the case of the UK and Brexit, deep-rooted scepticism about EU membership on the part of large sections of the British public, and widespread political hostility to the pooling of sovereignty involved, combined with the impact of daily media reports of the migration crisis to create a toxic environment for the 2016 referendum vote. People voted mainly on issues important to them but different from the benefits and/or drawbacks of EU membership. It is quite possible that with some of the shorter-term issues now less visibly urgent, and more facts available, public voting reactions might be different, even though there seems so far to be only modest movement of the opinion polls away from Brexit.
Demographic factors also play a part. Put crudely, the older people who mostly voted for Brexit are dwindling in numbers while young people who support EU membership but were aged less than 18 in 2016 and could not vote, are now coming onto the voters’ register in growing numbers. It could be argued that the UK public is now different from the one that voted in 2016, and that that justifies a new look at the Brexit issue. On the other hand no-one is arguing that every demographic change requires new referenda. The UK has regular general elections which meet that need and the associated policy challenges. Both local and national referenda, as noted earlier, are used sparingly in cases of clearly-defined issues of constitutional importance.
Where does the balance lie?
The UK’s 2016 referendum was legally advisory in nature. The Government has chosen for essentially party political reasons to regard as an absolute commitment the decision (by a margin of majority of only 3% of the votes cast) in favour of Brexit.
But there is no principle of law in the UK which states that a second referendum may not be held on an issue if the facts and arguments appear to justify that. The decision is for Parliament to take. And after all, the 2016 referendum was itself a “second referendum” on EU membership, following that held in 1975.
Equally there is no provision in the EU Treaties which requires member states to hold referenda. The Treaties lay down that in order for changes to come into effect, they must be unanimously agreed and ratified by all the member states. How the individual members meet that obligation is a matter for their internal constitutional procedures, which in some cases require referenda to be held. Undeniably, as already noted, reluctant member states have been under great pressure to seek approval in second referenda of Treaty amendments that have been rejected in a first public vote; but while this may be unpleasant, it does not appear to breach any principle of law. Ultimately the decision whether to hold a second referendum is political, and such also is the case concerning a possible People’s Vote in the UK.
 By contrast, directives set out end-objectives which are to be achieved by member states individually through their own internal procedures.