Democracy & the 2016 Referendum

One of the most curious things we hear a lot of these days is “it would be undemocratic to go against the result of the referendum”. But if a political process is, in its conception and execution, detrimental to democracy, then to abide by it would be truly undemocratic. Let us look at a few key facts about the 2016 EU referendum:

[1] Parliamentary Democracy, not Plebiscite
The legislation setting up the 2016 referendum made it clear that it was an advisory process. The UK has a parliamentary democracy. All legislative decisions are made by Parliament, unless it has been explicitly passed to a devolved body or local government. The referendum result was thus never intended to be binding, and democratically the ultimate decision was to rest with Parliament. MPs have the right and the duty to make that decision in light of the views registered in the referendum, the impact of different options, and the changing circumstances facing the country. This is not to say the UK cannot give up parliamentary democracy in one or more cases, or agree to a binding plebiscite for specific decisions. But that did not happen with the 2016 referendum. To insist MPs must vote in line with the referendum result, and not take any other critical factor into account is to defy our system of parliamentary democracy.

[2] Fake Options
If dodgy sales people give lots of misleading descriptions of their product to get people to sign a contract to buy it, public concerns would not be on how to force the buyer to pay out, but how to expose the deception and hold the con merchants to account. In the case of the 2016 referendum, the leading campaigners repeatedly stressed that leaving the EU would not mean leaving the Single Market; and they kept citing the Norway model as a desirable way to move forward: https://www.youtube.com/watch?v=0xGt3QmRSZY Yet, after the referendum, they were adamant that people voted to leave the Single Market and reject the Norway model (when they themselves had urged people to back leaving the EU because it would not mean leaving the Single Market).

[3] Deception and Rule Breaking
In addition to what was on offer in the referendum being routinely misrepresented, the campaigns involved were also full of illegitimate moves that were designed to undermine democracy at every turn. Democracy cannot function if people were pervasively lied to about the issue they were voting on, and the arrangements to ensure fairness and transparency were brushed aside. From propagating false figures about the costs of EU membership to covering up all the risks and damages that would arise from leaving, people were misled about what they should make of the UK being part of the EU. If a jury trial was conducted with so many attempts by one side or the other to submit misleading evidence, the judge would stop proceedings or even order a retrial. Furthermore, campaign rules which were to underpin the democratic legitimacy of the referendum vote were broken through a range of financial violations (to the extent that these are being investigated by the National Crime Agency). Some Leave campaigners had tried to defend their position by arguing that no one could prove that the breaking of the rules played a crucial part in securing the overall majority for Leave. But that is to forget that cheating in exams or sports is in itself sufficient for disqualification.

[4] The Absence of a Threshold
Any government seeking to change the fundamental constitutional and economic structure of the country by means of a direct binding vote would set a threshold for any proposed changes to go ahead. The greater the consequences and more extensive the disruption, the more critical it is to set a threshold. Even on issues which may impact on people’s lives on a much smaller scale, any direct vote may lead to a threshold being set. For example, the Conservative government introduced legislation to require at least 40% of the eligible voting members of a union to vote for strike action in relation to an important public service, before any strike action can take place – on the grounds that such a decision can cause disruption to people’s lives. As any decision to withdraw the UK from the EU can have far more drastic consequences for the whole country, it follows that there ought to be a requirement for an even higher threshold – say, 50% or two-thirds of all eligible voters. But the government set no threshold at all, and on the basis of 37% of eligible voters opting for ‘Leave’ (below the threshold it set for strike action to be authorised), it refuses to subject that decision to parliamentary democratic scrutiny. It is worth remembering that Nigel Farage himself said in an interview before the referendum (referring to % of votes that might be cast for either side): "In a 52-48 referendum this would be unfinished business by a long way. If the remain campaign win two-thirds to one-third that ends it." https://www.mirror.co.uk/news/uk-news/nigel-farage-wants-second-referendum-7985017

[5] Timescale and Democratic Responsiveness
Democracy cannot be sustained by any government declaring that it can take a decision that will be binding for all time. If a government wants to treat a referendum-based policy decision as irrevocable for a specified period of time, then it needs parliamentary approval in order to establish that as part of the referendum vote. However, nothing of the sort was put forward for the 2016 referendum. That means that just as after the previous (1975) referendum on the UK’s EU membership, there can be another referendum on the subject, it is legally and democratically coherent to have a third referendum. To claim that to run another referendum would be against the ‘will of the people’ is to overlook the democratic fact that the overriding will of the people is that they are allowed to change their mind. Above all, it is the Leave campaigners who have most ardently stressed that what ‘Leave’ means is fundamentally disputed – some of them insist it means leaving the EU (but keeping the benefits of the Single Market), some maintain it means leaving the EU and any form of customs union, and others argue that it means just leaving the EU (regardless of what other changes may or may not take place). Since those who back ‘Leave’ cannot agree what it should mean in practice, it would be wholly undemocratic to hand the power to decide the matter to an executive which is unlikely to command majority support in parliament.