Referendums, Elections and Democracy

NCH London | July 8, 2016

Please note: The following article 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.

Those who say that Parliament can note and learn from the outcome of the 23 June advisory referendum, yet not choose to take the UK out of the EU, are accused by those who supported ‘Leave’ of being ‘anti-democratic.’ It is vital to understand why it would not be ‘anti-democratic’ for Parliament to decide to retain the UK’s EU membership. It is especially vital that our MPs should be reminded of these considerations, because the future of the UK and the EU is now wholly in their hands.

I have heard from a number of MPs who will oppose Brexit in Parliament. I have heard from a number more who say they would like to oppose it, but they are concerned about going against ‘the democratic outcome of the referendum.’ I wish to demonstrate to these latter that to treat the outcome of the referendum as binding on them is precisely undemocratic, and that the interests of the nation and its future lies in their exercising their democratic right and responsibility to oppose Brexit if that is what they believe is right for the country.

The key point about what is democratic and not democratic lies in the difference between an election and a referendum.
In an election, electors confer temporary and revocable license on representatives to attend Parliament. In Parliament the electors’ representatives are required to act in the best interests of their electors, which they chiefly do by acting in the best interests of the country. They are mandated to enquire, debate and decide on legislation, and to hold the executive to account. They are not messengers or delegates charged merely with reporting or acting on their electors’ views; they are plenipotentiaries, acting by their own best lights on behalf of their electors. If they do a bad job they can be dismissed and replaced. This is representative democracy.

The whole point of representative democracy is that its forms prevent the political system from descending into crude majoritarianism (‘the tyranny of the majority’ over minorities is a danger that systems of representative democracy are designed to prevent) or, worse, ochlocracy or mob rule. In an ochlocracy – consider the chaotic situation during a revolution, for example – the crowd overturns the rule of law, inflamed sentiments prevail, decisions are made on the spur of the moment, and reason is usurped by demagoguery.

Representative democracy is a filter that guards against descent into forms of populism. It consists in a due process intended to allow for all factors to be taken into account, and for mature deliberation to select the best way forward on the basis of those factors. Demagoguery and sentiment might play their part on the hustings and in debate, but it is precisely to ameliorate their effect that the institutions and practices of the democratic order exist.

Representative democracy accordingly provides a way to ensure that decisions are taken on a reflective basis. It means that the legislature will sometimes act in ways that are unpopular, because – having the relevant information and the opportunity to weigh that information properly – its mandated duty requires it to act by its best lights. But this mandate is temporary and revocable; democracy thus based is characterised essentially by the constant democratic supervision that electors apply to those they elect, through the mechanism of periodic elections.

Electors can therefore change their minds; anything done by a government can be recalled at the next election.

A referendum is a far different thing. It does not result in the temporary appointment of representatives. It is one-off. It is a poll of opinion on a single matter, and it has of necessity to be framed in a simple question or as a simple binary option. The complexities of legislation and their intended effects are not feasible subjects of referendums; that is why we appoint plenipotentiary representatives to deal with their detail. That is correlatively why, in almost every mature democracy, referendums are sparingly used, and why, in the case of the 23 June referendum, it was explicitly stated to be advisory only.

One has only to imagine what would happen if all legislation were decided by referendums. This makes it immediately obvious why we have a representative democracy: the general population have neither the time nor, usually, the expertise, to examine, debate, emend and take responsibility for detailed matters relating to the economy, the military, foreign affairs, education, industry and trade, and so much more.

And now consider: the question of the UK’s EU membership is a matter far more complex and far more consequential than almost any other item of government business. Is it to be subject to a simple binary question and settled on a simple majority of those who vote (not, note, a majority of the electorate as a whole, still less of the people as a whole – more precisely, just 37% of those entitled to vote)?

Emphatically, No: this is precisely why we have representative democracy. This is why Parliament cannot resign its sovereign powers and its responsibility in the matter, regarding them as over-ridden by a referendum explicitly designated as advisory only.

To say that Parliament must not regard its powers as over-ridden by an advisory referendum is all the more significant in the present case. In every political system where referendums are used with any frequency, they require a supermajority (typically a two-thirds majority) to overturn a status quo. (In Switzerland, which has the closest to a form of direct democracy in the developed world, a double majority of electors and cantons is required.) Even our own House of Commons requires a 66% majority for an election to be held outside the fixed term of a sitting Parliament. It is astonishing that so major a matter as the 23 June advisory referendum should have been based on a lower bar than that, if the advice sought were to be accorded the weight that some of our MPs now wish to give it.

Moreover, as the referendum’s outcome would have its greatest and longest effect on the young, the voting age should have been 16 years as it was in the Scottish referendum. Some of those most affected by the referendum were, accordingly, disenfranchised in a matter of the first importance to them.

Moreover again, the question was very badly formulated. As it was an advisory referendum, there should have been more options to capture the range of views obscured by the binary in-out nature of the question used. It is beyond doubt that a significant proportion of those who voted Leave might have ticked boxes offering Remain options on stated conditions: that possibility was not even addressed.

Moreover yet again, the background to the 23 June advisory referendum renders it impossible to regard its outcome as amounting to a mandate for a ‘Brexit.’ This is not only – as is now a matter of public knowledge – because of the misrepresentations, distortions and knowingly misleading promises made by the Leave campaign, all of whose promoters have fled the scene or been dismissed from it. The nature of these misrepresentations amounts to something almost criminally irresponsible, so bad was it. But this was merely the tip of the iceberg. For in effect the Leave campaign of distortion and hostility has been going on for over forty years – forty years of incessant distortion and hostility to the EU by tabloid newspapers and adherents of the political Right, not counterbalanced by much effort – if any – to make known the advantages and benefits of EU membership.

Contrast the situation in our EU partner countries. In every one of our EU partners the national flag and the EU flag fly side by side. EU funding of major infrastructure works, of science and education, of environmental projects, and more, is publicly acknowledged. In the UK there is silence on the positives of EU membership, so that the only mention of the EU that the public gets is almost invariably hostile. Thus the decades-long campaign of disparagement by the likes of UKIP, the Express, Rupert Murdoch’s Sun, and the Daily Mail (a collage of its front pages over the years makes an astonishing gallery of hostility and deliberate misinformation) has prejudiced many against it.

It is imperative that these circumstances be taken into account by Parliament when it considers the question of the UK’s membership of the EU. Our EU membership has been so distortingly misrepresented for so long that it cannot be said that the facts, relevant considerations, and rational opportunities for evaluation of the EU’s merits, were fully available. To put the point more bluntly: the 23 June advisory referendum outcome was an artefact of a situation of massive misinformation and relentless partisan hostility over many years, and Parliament has a duty to take that into account.

There are nevertheless genuine concerns among many Leave voters which politicians now recognize need addressing. And indeed they should. But they should not be addressed by creating an inward-looking, xenophobic, Little England alternative; instead the work required is one of reducing inequalities, on the one hand, and on the other hand persuading, informing and giving leadership so that the concerns – some of them unduly inflamed by tabloid propaganda – can be dealt with positively. The 23 June advisory referendum was informative; it revealed problems; but it does not mandate Leave’s own solution to those problems. There are better solutions, and indeed remaining in the EU offers them: as one MP said to me in writing, ‘leaving the EU will have its worst effects on those who voted Leave’; he specified ‘the white working class’ and might have added pensioners among others.
A chief difficulty with the Leave position is that whatever happens, the UK will be greatly affected by the EU. Leaving the EU means the UK will be affected by it without any say on those effects. This fact, together with all the foregoing, returns us to the point of the democratic duty of Parliament in this circumstance: which is to protect the interests of the UK and its people, and to take responsibility for making the judgment about what those best interests are.

The EU is a flawed institution requiring work; it is very much a work in progress. But it does a huge amount of good, and its improvement promises even more. As a powerful member of the EU the UK has much to offer. As an isolated offshore island its influence would be reduced and its voice in the world diminished; with the suite of consequent deleterious effects noted.
The outcome of these reflections is that for Parliament to regard the outcome of the 23 June advisory referendum as binding – and it was explicitly devised not to be binding – would be the undemocratic alternative. Our system of democracy places squarely on Parliament the final say of what would be in the best interests of the UK. As disturbing and negative events affecting the economy and society since 23 June indicate, the overwhelming body of expert opinion offered before the referendum has been shown to be right. And it matches the opinion of the majority of our MPs. Therefore: as expert opinion and the view of most MPs is that the UK’s best interests lie in continuing EU membership, MPs have the right and the duty to ensure that this happens.

Our MPs should act accordingly, and thereby preserve the UK’s membership of the EU. In doing so they will be carrying out their democratic duty: and they will at a stroke reverse the chaos currently unfolding, restore the progress which had been underway until 23 June, and continue – with renewed purpose in making the case for its great significance and promise – the work of making our European corner of the world a place of peace, co-operation and progress.

They will be acting in accordance with our democratic principles, practices and institutions. They will not be acting undemocratically. If they treat the outcome of the 23 June advisory referendum as non-advisory but binding, despite all these factors and considerations, and in usurpation of their constitutional responsibilities, they will be acting undemocratically.