Applications open for 2019/2020 entry Apply now.

A C Grayling’s & Referendum Result

NCH London | July 1, 2016

shutterstock_263830163ererere

Many students at New College of the Humanities urged Professor A C Grayling, Master of the College, to express his views in light of the EU referendum result. Professor Grayling, who is a champion of the UK remaining in the EU, has written a letter asking Parliament not to support a motion to trigger Article 50 of the Lisbon Treaty. The letter, which is copied in full below, was physically delivered by two NCH students to all 650 MPs at Parliament this morning, 1 July 2016.

Please note: The following letter expresses the personal views of Professor A C Grayling. New College of the Humanities teaches people how to think, but not what to think. The College therefore has no political affiliations, nor as an institution takes a position on political issues. NCH encourages reflection and debate from all sides of the political spectrum.

[Note: this post was updated at 10:27 am on 6 July 2016 with a reply by Rob Marris MP and Professor A C Grayling’s response]

[Note: This post was updated at 2.53 pm on 7 July 2016 with a further reply by Rob Marris MP and Professor A C Grayling’s response.]

29 June 2016

At the urging of many of my students – who come both from the United Kingdom and the European Union – and my own conscience, I write to you to express a respectful but strongly held view that, for the reasons set out below, Parliament should not support a motion to trigger Article 50 of the Lisbon Treaty. It is within your democratic remit and duty as a Member of our Parliament to vote on whether to initiate that procedure. By voting not to do so, you will keep the UK in the EU.

The non-binding referendum, its circumstances, and its slim majority achieved in those circumstances, is not an adequate ground for the UK to leave the EU.

The relevant factors and reasons are as follows.

In order for the UK to begin the process of leaving the EU, Parliament has to vote in favour of invoking Article 50. It is possible that complex constitutional issues might have to be settled in advance of such a vote, for example repeal of the 1972 European Communities Act. This is a matter that legal expertise is required to settle. But the key matter in the end is a vote on whether to initiate the Article 50 procedure.

Parliament as presently constituted has a substantial majority in favour of remaining in the EU. Given the following factors:

  • that the referendum was advisory only and non-binding,
  • that the majority for ‘Brexit’ was small (3.8%),
  • that there are major questions about the circumstances of the respective Remain and especially Leave campaigns regarding probity of information, claims and promises made to voters,
  • that a serious risk of break-up of the UK impends upon a ‘Brexit,’
  • that the economic consequences of a ‘Brexit’ are not in the UK’s favour,
  • that a ‘Brexit’ would damage our neighbours and partners in Europe,
  • and that the future of the young of our country is focally implicated in the decision,

For all these reasons and more, there is a powerful case for Parliament to use its discretion to determine that it is not in the UK’s interests to leave the EU.

No doubt this will cause anxiety among those MPs who think that a simple majority in a referendum confers a moral, even though not legal, obligation to treat the referendum outcome as prescriptive and binding. This is far from being so, for the following reasons.

First, in most jurisdictions major constitutional change requires a supermajority or two-thirds majority to effect them (as e.g. in the USA and Germany), whether in a legislature or in referendums. In Switzerland, which alone among developed nations employs frequent referendums in its ‘semi-direct’ democracy, major decisions require a double majority of the electorate and the cantons.

For a very major change such as exiting the EU, it is not acceptable to have matters decided by a small simple majority. So great a change requires a significant degree of genuine consensus, at the minimum such as a 60% majority would reflect.

Second, a referendum is in essence a decision by crowd acclamation. You will of course well understand that there is an excellent reason why most advanced and mature polities do not have systems of ‘direct democracy’ but instead have systems of representative democracy, in which legislators are not delegates sent by their constituents but agents tasked and empowered to investigate, debate and decide on behalf of their constituents. This reason is that rule by crowd acclamation is a very poor method of government.

Consider: suppose that every item of proposed legislation were decided by referendums, which would therefore occur very frequently. Bills on health and safety in manufacturing industry, on reform of higher education, on the use of chemicals in water treatment plants, on regulation of air traffic over the nation’s airports – bills proposed by government and drafted in detail by civil servants – would be presented to the public, who would then vote. Would that work?

Very obviously, not. The expertise, patience and time that most of the public could bring to the task would be extremely limited; the lack of expertise, especially, would be a serious, perhaps disastrous, handicap. And very soon turnouts in referendums would plummet to single figures, rendering their democratic value nugatory.

Now I beg: really do consider the implications of the foregoing thought. Referendums are snapshots of sentiment at a given point in time. Government by referendum is government by crowd acclamation: not democracy, but ochlocracy. That is exactly why we have representative democracy. If referendums would be a poor way to decide on health and safety, air traffic control, or education, they are an exceedingly poor way to decide a matter as momentous as membership of the EU. This is and should be a matter for Parliament, taking all factors into account.

Moreover: the circumstances of the campaigns and the consequences of the vote itself must be considered. There was a great deal of misinformation, distortion, and false promises, much of it quickly revealed in the immediate aftermath of the vote, and resiled upon even by those who had made those claims and promises. Tabloid urgings for Brexit were followed, in the very same tabloids, immediately after the vote by information on its consequences which shocked readers. We have seen much reported about the post-vote regrets of people who had voted for ‘Brexit,’ – including some high-profile individuals who before the vote had been urging it in their newspapers.

These factors add up to this: that there are grave doubts about whether the basis on which votes were cast, especially among many who voted for ‘Brexit,’ are good grounds for Members of Parliament to resign their competence and duty to consider whether the UK should leave the EU. On the contrary: these considerations make it all the more imperative that Parliament should exercise its sovereign responsibility in the matter.

There is a formal online petition requesting a second referendum. If this petition is genuine and not the result of fraudulent computer hacking, it is the most extraordinary phenomenon: as I write these words it stands, only a few days after the vote itself, at over four million signatures. However if Parliament were to exercise its responsibility in voting down a proposal to trigger the Article 50 procedure, no second referendum would be necessary.

Some have suggested that following a general election, in which each MP made clear his or her standpoint on Remain or Leave, would provide a definitive conclusion to Parliament’s decision on the matter. However this is not constitutionally necessary: Parliament is sovereign: an election would merely prolong uncertainty.

One of the most important reasons why Parliament must take a bold sovereign stand on the outcome of this small-majority advisory referendum, is the interests of the young. We know that the Remain and Leave votes divided along the fault lines of age, educational level, and geography. There is every reason to urge that the wishes and interests of the young – the younger, more aspirational creators of the country’s future – should be given most weight. Parliament should protect those interests and respect those wishes. Some say that any among the young who could vote but did not, have only themselves to blame. This argument will not do. Those young people might have legitimately thought that their elders would not be so foolish as to betray the future by a ‘Brexit’ vote. But punishing them with a ‘Brexit’ is not the right response. The sober judgment of Parliament should be on their side.

You might think that Parliament’s discretion not to trigger the Article 50 procedure would leave matters hanging in the air, with continued uncertainty and the instability and political upheaval that it would bring.

Not so.

In debating and voting on whether to trigger the Article 50 procedure, it can be made clear that Parliament has noted

  • the outcome of the advisory referendum,
  • the small size of the majority of actual votes cast (thus, not the majority of the electorate),
  • the circumstances of the campaigns,
  • the consequences both already actual and in prospect, for the future interest, unity and prosperity of the UK,
  • and the impact on our neighbours in Europe:

and that it is exercising its democratic duty to take a view and to vote accordingly. If the vote is to not trigger the ‘Brexit’ procedure, our partners in Europe can be informed and normality can be restored.

The EU is flawed and has problems. But as a powerful member of one of the three great blocs in the world, the UK can do much to help it get better, and to work within it to help all its members realize the great ideals of peace, prosperity and co-operation for which the EU exists.

Let us not absent ourselves from this beautiful endeavour. Let us not injure it by refusing to be part of it, thereby also damaging ourselves and the hopes of our young.

Please – you have both the ability and the duty to use your own discretion in this matter. I very respectfully urge you to use the first and obey the second. The future truly depends on it.

Yours sincerely,

Professor A. C. Grayling

Master of the College


Response from Rob Marris, MP for Wolverhampton South West:

Thank you for your letter.

Politicians must all now pull together to implement the clearly expressed will of the British people in as fair a way as possible.  Every adult had the chance to vote (save prisoners).  People voted (or abstained) with their eyes wide open.  They knew what they were doing.  That’s democracy.  That’s the decision.  End of.  No second referendum.  No refusal to invoke Article 50. If Remain had won 52/48, I would not have countenanced a re-run. Would you have?

In this referendum there was a binary question, yes/no.  Everyone knew (or really should have known) what the vote meant – perhaps not all the ramifications, but its significance and import.  The deed is done.  Remain lost.  That saddens me, not least because the voting analyses suggest to me that those who I believe will lose out the most from Brexit had the highest propensity to vote Leave; i.e. the white working class outside London.

I do not have the lifespan or the inclination to spend the next 41 years trying to reverse the EU referendum decision.  Moreover, without our country as a member, the EU itself will be weaker and poorer, and may well collapse within a decade.

Outside the EU, our country will itself be weaker and poorer than inside, but we will survive and prosper.

Rob Marris

MP for Wolverhampton South West

Professor A C Grayling’s reply:

Dear Mr Marris

Thank you for your reply.

You say that the referendum result is ‘the clearly expressed will of the British people,’ and say that the British people voted with their eyes open, knowing what they were doing.

 I beg to differ on every count.

First, the 51.9% Leave vote is 51.9% of the 72% of the people who voted, thus representing 37% of the electorate. This is somewhat less than a third of the British people as a whole, taking into account under-18s. So this is not ‘the will of the British people,’ a stirring phrase but a very inaccurate one. Instead we have a deeply and even bitterly divided population, with absolutely no consensus that can be invoked to support so major a change as leaving the EU.

Second, people did not vote with their eyes open. They were subjected to years of distortion about and hostility to the EU by the Daily Mail, the Express, the Sun, the Conservative right wing and UKIP. They were told that £350,000,000 of additional spending would go to the NHS each week. They were given no idea of what a post-Brexit economy would look like, how it would work, what the relationship with our current biggest trading partner (the EU) would be. They heard vague generalizations about continuing to have all the advantages of association with the EU without actually being in the EU. The leaders of the Brexit campaign – all bar one of them now having rapidly decamped the scene of the disaster they have made, since none of them really expected Brexit to happen – offered no plan because they had none; all they had was rhetoric hostile to the EU fuelled by what we know, as a matter of public record, were untruths and willful misrepresentations. It is not hard to believe that many of those who voted Leave did so on the basis of what the Leave campaign said: and we know – and I repeat: as a matter of public record – that they were misled. This is not ‘the British people’ voting with their eyes open.

Third, there should never have been a referendum. But given that one was held, it should have required a supermajority to be legitimate, given that it concerned a matter of major constitutional and national impact. One would say, it required at very least a two-thirds majority, and the voting age for it should have been 16 since it most materially concerns the younger generations of citizens. As it is, a third of those entitled to vote, on the basis of a scurrilous Leave campaign, have jeopardized the country’s future and especially that of its younger citizens, who are overwhelmingly in favour of continued EU membership.

Fourth, you say in your letter that you are saddened by the prospect of Brexit for the reason that, as a Labour MP, you are concerned about those who most voted for it because they are precisely the ones likely to be worst affected by it – namely (in your words) ‘the white working class outside London.’ Now, Mr Marris: is this not precisely why you are a Labour MP, to work in the interests of people you are concerned about? MPs are not messengers sent merely to report the wishes and views of those they serve as representatives, but as their representatives to act in their interests – to take the time and apply the thought required to do this. You say that Brexit is not in the interests of those who concern you. Quite right: so you have a duty to act in their interests, and moreover you have the discretion to so act. You do this often in other respects. You vote taxes, you pass laws that impose obligations which your constituents might find irksome but which you know are in their and their country’s interests. If you do not do your job well you can be voted out at the next election. THAT is democracy: the repeated monitoring at the ballot box of our representatives’ competence and service. It is a very crude and simplistic view of democracy to think that a referendum usurps our Parliamentary system and ties the hands of the people whom our democratic institutions and practices both license and require to do the wise thing. Brexit is, in your own admission, not the wise thing. In addition to worrying about the effect on the less well off, you say that the EU likewise will be ‘weaker and poorer.’ Shall we make what is currently our major trading partner weaker and poorer? What effect will that have on us? Knowing these things, how can you resign your democratic duty as an MP and the constitutional competence you have to perform that duty in these circumstances? It is not acceptable that any MP can believe that Brexit is a bad thing yet choose to stand impotently aside and do nothing.

You say you do not have the lifespan or the inclination to try to reverse the referendum decision. Note that there is no decision yet: you and your fellow MPs have yet to make it. You may not have the inclination but you do have the time to tackle this important matter. That time is now.

We need our MPs to show leadership, determination, boldness, and principle. We know that there is a majority for Remain in the sovereign body in our polity, the House of Commons. That fact should, really should, be what would enable us to say, using your own words: ‘That’s democracy. End of.’

Yours sincerely

Anthony Grayling 

 

Further response from Rob Marris, MP for Wolverhampton South West:

Thank you for your prompt and interesting reply.

From the best of intentions, you are trying to second-guess what voters wanted.  I simply rely on what they put on a clear ballot paper which asked a clear question.

You risk being patronising when saying that “people did not vote with their eyes open”, implying that you could spot a lie when they could not.  I myself spotted disinformation bordering on lies in the Remain campaign but nevertheless voted thus.  Who am I to presume that the mirror image did not likewise occur?

Ex post facto you magic up a “supermajority”, which is a whole different constitutional debate and never formed part of this one.

I am indeed a representative, not merely a “messenger”.  However, in a referendum with a clear and simple question, the clear and simple  54.29% message given to me by the voters in the constituency I have the honour to represent was “Leave”.  It is now my role, as long as I am their representative, to try to ensure that the terms of that leaving are as advantageous as possible.

Rob Marris

 

Professor A C Grayling’s reply:

Dear Mr Marris,

Thank you for your further reply.

A critical reader of it might say that despite saying that you do not regard yourself as your constituents’ messenger, your feeling bound to act in accordance with the Leave sentiments of 54% of them (mistaken sentiments at that, as you remarked in your first email to me), in fact makes you so. An even more critical reader might be so unkind as to suggest that your citing this figure reveals that you are more concerned about keeping your seat than saving the country. For you say: the Leave result is wrong, but 54% of my constituents are of that view, so I’d better go along with it.

What half the country – perhaps, by now, considerably more than half – want and hope is that MPs will vote their judgment, not their personal expediency.

Best wishes,
Anthony Grayling