(This article was previously posted on Gerard Delanty’s blog and is reposted here with kind permission)
The Referendum of 23rd June 2016 has fundamentally undermined British democracy. The government made a catastrophic error in holding the referendum without clarifying the nature of the referendum. The motivations were entirely to do with a conflict within the Conservative Party on the question of the EU and were not in the national interest. The result was proclaimed to be a binding despite the fact that the referendum was consultative and therefore not binding. In an act of willful deceit, the government is pretending that it was a binding referendum and that it automatically results in the UK leaving the EU without parliamentary approval and without the normal specification of a supermajority. The 3.8% majority is being falsely described as a substantial majority, when it is a slim majority and does not meet the requirement that would otherwise have to be met for such a major change in legislation. This alleged majority is in fact a dictatorship of the 37% of the electorate who voted for Brexit. The notion that 50% plus one is an acceptable threshold is a fiction that the government encouraged people to believe in because it did not expect a Leave vote to exceed that amount. The government has decided to stick with the fabrication for the convenience it offers to hold the Conservative Party together. For their own reasons, most Labour MPS have colluded in the deception.
The legitimacy for Brexit is not valid on democratic grounds simply because a substantial majority did not vote for it. Rather than being a democratic outcome, it is precisely the opposite. The current situation is that the government and more or less all of parliament have colluded in obfuscating the facts and process of the referendum in relation to the democratic process. Democracy is not reducible to a simple majority. Is not just about what a majority decides unless there are clear rules for determining what constitutes a majority. This is why referenda need to be carefully legislated for, in order to ensure that they do not produce illiberal results, which can very easily happen when a minority becomes a majority. A properly functioning democracy has guards against such an occurrence.
There are essentially two kinds of referenda, consultative ones and legislative ones. The latter type are binding and specify the threshold required for a change in legislation. Most referenda held in the UK were on relatively minor issues that do not entail major changes to the status quo and where they were legislative in nature they specified a threshold. An example is the Alternative Vote referendum in 2011. In this case it was specified as legislative and a 50% threshold of a simple majority was specified. Other referenda on more major questions, such as the Scottish Referendum Act of 2013 and the Referendum of 23rd June were consultative and did not specify a threshold. Such referenda are relatively rare [i] and in the case of the Scottish referendum it was not put to the test since the outcome clearly was a no vote for a major change to the status quo. In the case of the Referendum of 23rd June, the results gave a small majority in favour in favour of Leave.
The government is misrepresenting the figure of 52% votes – which in fact is 51.9% – as a majority vote of the electorate. The reality is that only 37.4% of eligible voters voted to Leave, while 34.7% voted to Remain and 27.9% did not turn out to vote. In absolute numbers, out of an electorate of 46.5 million, 17 million voted Leave, 16 million voted Remain, and 13 million did not vote. The non-voters are often incorrectly characterised as either indifferent or support whatever the majority decide. This may be the case in elections, but not in the case of referenda, and especially not in consultative ones. The objective reality is that 37% voted to Leave and 63% did not vote to Leave. The 3.8% margin is in numbers 1,269501 million voters. If half of this number plus one – i.e. 634,7506 – had voted the other way, Remain would have had a majority. I have yet to hear an argument how this could amount to a clear majority that merits a course of action that has no other merit than that it was desired by a small proportion of the electorate and population.
The non-turnout numbers matters greatly because the results of a referendum are very different from the results of an election since they concern long-term changes to the status quo. In the case of referenda that have major societal implications and are binding virtually all modern democracies specify a supermajority for changes to the status quo, normally circa two thirds majority. It is generally accepted that abstentions in the case of referenda should be treated as a vote for the status-quo or at least need to be taken into account in any decision for the implementation of the result.
The government is also undermining the spirit if not the letter of the unwritten constitution in treating the result of what is now widely agreed to be an advisory referendum as binding. The 2015 EU Referendum Act [ii] never provided for binding implementation of any result delivered and also never specified a threshold. This was outlined in a government briefing paper [iii] that clearly specified that it was a consultative as opposed to legislative referendum.
Having failed to define a threshold, which was politically necessary in order to satisfy the minority of ultra right-wing Conservative MPs and the UKIP party, the default of 50% became a generally accepted assumption, even though it was never specifically mentioned and the government in a major miscalculation believed it would never come to pass. The current situation has come about by the government spuriously confirming a consultative referendum into a legislative one, but without the necessary steps (it remains to be seen if the courts force the government to provide parliamentary approval). They may quite well do that, though they will not be able to force a free vote. The courts may be able to enforce constitutional legality, but they cannot enforce legitimacy. In view of the precedent established in March 2003 by Tony Blair in seeking parliamentary approval for the momentous but also illegal war against Iraq, it is difficult to see how the present Prime Minister’s right to use the Royal Prerogative can be legitimate for an equally momentous act.
The 50% threshold is a sheer invention of the government to solve a problem that it had created. The Referendum of 23rd June produced a very slim majority – 3.8% – that is now being falsely described as a democratic mandate, the so-called ‘voice of the people’. There is nothing binding in this and nothing democratic and it is not a majority in any significant sense. This was also recognised by Nigel Farage, the ex- leader of the UKIP party in May 2016 when he claimed that a 52-48 outcome in favour of Remain would be contested. It cannot be seriously argued that 3.8% is a substantial majority. The truth is that the UK is seriously split on this issue and that the way to address the issue is not through the Brexit course, which is widely recognised by the vast majority of MPS to be a mistake and the only reason to act on it is because of the so-called majority it produced.
I am convinced that the reason for the great pretence of a democratic outcome is that the government is attempting to disguise the irresponsible decision to hold the referendum in the first place and is using the language of democracy to disguise the sheer undemocratic nature of what are party political aims that have little public support. The supine opposition has more or less collapsed and rather than challenge the deception of the government, with the exception of a handful of MPs, it is actively colluding with it through either silence or repeating the vacuous phrase of a people’s decision.
There are other reasons why the outcome of the referendum should not be implemented. In view of its far-reaching implications it was vital for such major changes that the franchise should include all those entitled to vote. In fact, the franchise was not extended to 16-17 year olds and over-15 year UK nationals living and working abroad. These were effectively disenfranchised, as were UK citizens living abroad.
In addition, to having major negative implications for British citizens, the referendum has serious long-term implications for Scotland and Northern Ireland. Their devolved parliaments were not given an opportunity to approve of the results nor were there any guards against the dictatorship of the English voters.
Quite aside from disenfranchisement of large sectors of the population and the marginalisation of the UK’s regional parliaments, a more serious problem is that the state does not have the legal power to abrogate individual rights of citizenship. Over the past decades, as a result of the membership of the EU, British citizens have accrued new rights, which cannot be simply removed by a small majority. Over 1.3 million UK citizens work and live in other EU countries and stand to lose this right, as well as those who would otherwise plan to live and work in other EU countries. Removal of citizenship rights against the will of a citizen without good grounds is contrary to the Human Rights Declaration. The abrogation of rights is possible only in relation to specific persons, for example for criminal convictions (this issue is the subject of ongoing legal challenge).
For a referendum to override an existing state of affairs there must be clear and legitimate conditions set out in the referendum and eligibility must extend to all citizens likely to be affected by the implementation of the result, including those not yet of age to vote given that its outcome may have implications for them. A non-binding referendum can of course be implemented, but in view of the long-term consequences, parliament must be fully involved in the implementation of the results of a non-binding referendum. It is vital to acknowledge that in a referendum, unlike in an election, the status quo always takes precedence and changes to it need to be relatively minor or if they are to be major ones they need to be comprehensively addressed.
I cannot think of another example of a referendum anywhere since Germany in the 1930s that has resulted in a decision that, if implemented, will result in the loss of rights. There is, additionally, the grave implications for the Good Friday agreement in Northern Ireland. The government has obfuscated the very great differences between elections and referenda, giving the public the false argument that the same rules apply.
I would also comment that the argument made by some MPs that because the 1975 referendum on membership of the EEC had a smaller turn out (64%) this someone provides a precedent for implementation is totally erroneous, since entering and leaving are not comparable. Leaving entails a major loss of rights, while entering did not have any major implications for the status quo. In any case that referendum had a more decisive outcome (67/32) and did not at the time have major implications beyond economic cooperation.
The referendum of the 23rd of June itself was designed to put the interests of one party above the national interest. We currently have an utterly unacceptable situation whereby the Prime Minister is insisting on using the anachronistic Royal Prerogative to implement an outcome that has not been approved by parliament and which is held by the majority of parliamentarians not to be in the national interest. This cannot be described as democratic. It is a clear and alarming sign of power shifting to the executive. There is widespread complicity in this deceit across the board – most worryingly by MPs who supported Remain – since no one wants to admit that the Referendum produced an illegitimate result and that parliament as a whole has also collaborated in the government’s deception. Rather than openly question the government’s course, there is widespread complicity in it by MPs who know that it is wrong. Parliamentarians need to be reminded that they do not have the right simply to remain silent for reasons of party policy or fear for their re-election if they speak the truth. The duty of a parliamentarian is to uphold the principles of democracy [iv]. These principles include a strong commitment against majoritarianism on issues other than elections.
The UK, like most modern democracies, is a representative democracy. In representative democracies parliament oversees and protects democracy. When direct democracy is used, which is rare, it is overseen by parliament in order to ensure that it does not undermine the fundamental assumptions of democracy and the constitutional rights of individuals.
I strongly suspect that the Article 50 may never be invoked or if it is triggered that it will never result in the UK leaving the EU due to the complexity of the issues and the negative consequences and that it will collapse under its own weight. If the government succeed in invoking Article 50, it will have to contend with the alienation and very likely radicalisation of millions of young people and much of the 63 % who did not vote for Brexit, especially as they begin to see through the great pretence. Indeed, in terms of population, only 27% voted to leave. That leaves a lot of very angry people. A new generation of voters who were born EU citizens and disenfranchised by the June referendum will not forget how the main political parties have colluded in the great pretence.
Simply hoping for the best Brexit deal is not going to solve the problem. The political and intellectual elites will one day find themselves looking very foolish when their legacy is settled and it becomes clear that they did nothing to stop such reckless irresponsibility.
[ii]The EU Referendum Act http://www.legislation.gov.uk/ukpga/2015/36/contents/enacted
[iii] House of Commons Briefing Paper CBP-7212 http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7212
[iv] MP ‘s Code of Conduct http://www.publications.parliament.uk/pa/cm201516/cmcode/1076/107602.htm#a3
Professor A..C. Grayling’s Letter to MPs
Dr Austin Harrington’s blog