Patrick O’Brien
BREXIT and the ‘constitutional’ crisis…
Here’s his
interesting feature about the, “Changing of Minds”.
Richard Ekins n his post of last week,
argues that political and legal elites should resist the urge to ‘treat other
voters as fools or monsters or deny the outcome of the fair and legitimate
decision-making process which they did not otherwise contest’. The many and
varied legal and political arguments offering ways to soften, reverse or ignore
the vote to leave the EU cannot avoid the central political fact that the
result now has a huge weight of political legitimacy behind it. I want to sound
a note of caution about the idea that in a democracy voters cannot change their
minds. I think it is unlikely that a decision to remain could have democratic
or political legitimacy after the referendum result, but for the reasons I
offer here I believe that that is not quite the same as saying that it is
impossible, or that debate to that end is improper.
Changing minds in
democracy theory
Richard rightly
points out that the referendum has been highly divisive, producing clear class
and generational divisions that will be difficult to heal. We ignore or
demonise leave voters – and the discontent that motivated them – only at great
cost to the political system. It would be an equally serious constitutional
error were this to end in the courts. To resolve a question of political
identity in a courtroom would be deeply damaging to the independence of the
judiciary and the legitimacy of politics more broadly.
So far I am with
Richard, but I disagree that the constitutional politics of this discussion end
with the referendum vote to leave. Richard argues that the referendum vote must
now be respected and in effect argues that it is irreversible: ‘Political
fairness and democratic principle require one to respect the outcome of the
referendum now even if one is persuaded that Brexit would be a very bad idea.’
Democracy is vague and conceptually spare (as, for that matter, are
‘legitimacy’ and indeed ‘politics’) and bald appeals to ‘democracy’ require
caution. Normally, they act as placeholders for other political ideas. In
modern constitutional democracies, democratic rule by the people (rule by each
person equally) is achieved in a host of ways: elections, referendums,
political horse-trading, and peaceful protest amongst them. Democracy is
practiced, expanded, defined and redefined by law and politics. Democratic
decision-making is the source of political legitimacy and authority in a
democracy.
But there is
nothing about the concept of ‘democracy’, vague and contested as it is, that
suggests that decisions, once made, cannot be unmade. In abstract, if a
referendum results in a vote to do something that turns out to be deeply
damaging or impossible – to spend the national budget on magic beans or the
Emperor’s new clothes – there is value in its retaining the capacity to vote
again to do the opposite. Some decisions will be irreversible. A decision to
spend £100 on X rather than Y will leave no money left for Y. But this is a
feature of the decision made rather than something innate in the idea of
democracy. As a matter of practice, repeated referendum votes are a feature of
countries that we regard as democracies. ‘When the facts change, I change my
mind’ as Keynes put it. Electorates do the same. Ireland and Denmark have each
both voted twice on EU treaties. Ireland has voted repeatedly on the issue of
abortion in recent decades, and is likely to do so again in the next few years.
Political legitimacy in a democracy is fluid rather than a moment frozen in
time and space. This is especially true in Britain’s political constitution
which is defined so substantially by politics. This capacity for change is a
strength. A democratic system that is incapable of responding to changes of
fact, context or popular mood damns itself to decline and demagoguery.
The politics of the
UK’s constitutional moment
The Brexit
referendum was a ‘constitutional moment’: a referendum proposed to heal a
long-standing fissure over Europe that has deep roots in British politics and
British identity. It was billed as a once-in-a-generation decision. It is
constitutionally possible for Parliament to ignore it, but to do so merely
because those who lost the argument found the result unpalatable would be
politically and democratically unacceptable. This does not, however, mean that
debate about the issue must now end. Leave campaigners made it clear prior to the Brexit referendum
that they would not let the matter rest if the decision did not go their way.
That’s politics. Remain campaigners are now doing the same. That’s also
politics. It is part of democratic politics that politicians and activists
argue for a position and try to secure public support. The requirement that
those who are disappointed by the result of the referendum must now be quiet
seems to me to be wrong as a matter of principle and also in these very unusual
circumstances of constitutional crisis. This approach requires voters on all
sides to accept that political debate has now been settled and frozen in a
constitutional moment when the current political and economic turmoil suggests
exactly the opposite. This constitutional moment is not yet complete.
Richard offers the
example of the Scottish independence referendum in 2014, arguing that it would
have been wrong to put the decision a second time had the vote gone the other
way. I quite agree, but Scottish independence was a very different kind of
question. The EU referendum debate did not produce anything like a clear vision
for ‘Brexit’. There are radically different visions of ‘leave’, from
buccaneering libertarianism to xenophobic nativism to radical redistribution
(sometimes, and incoherently, all three at once) that reach far beyond external
relations with the EU. Some barely differ from the arrangement that exists with
the EU at present. Some are – in the technical legal sense if in no other
respect – revolutionary (see here and here). Key promises made
during the campaign were abandoned by leaders of the leave campaign the moment
the result was announced. The political legitimacy of the result has been
undermined by the fact that key factual arguments made in support of the leave
campaign were demonstrably false. There are, for that matter, radically different
views of what ‘remain’ might mean should the matter be re-opened. In the case
of Scottish independence the uncertainty was significantly less: there are
clear precedents for what statehood means and for what secession from the UK
entails in the examples of Ireland and the commonwealth countries. A vote for
Scottish independence would also have been extremely difficult to unwind in
practical terms. By contrast no one seems to know what Brexit should look like
and all the distinct visions for Brexit are profoundly politically salient,
reaching into matters not just of identity but of domestic politics, economics
and human rights.
The Brexit
referendum has provoked a constitutional crisis. The status of Scotland and
Northern Ireland is now in doubt – a second Scottish independence referendum is
now on the agenda in these changed political circumstances – and the
party-political system, the normal mechanism for conducting democratic politics
and the bedrock of so much of the modern political constitution, has broken.
Unlike in Scotland, where there were clear party-political divisions on
independence, the two major parties at Westminster do not currently compete
along the now key fault-line of Europe and a significant majority of MPs were
not in favour of a leave vote. The inability of the Tory party to reach an
internal peace on Europe prompted the referendum. It now looks likely that its
stance in any negotiation with the EU – its choice from the wildly varied menu
of Brexit options – will be determined by an internal competition between Tory
leadership candidates and decided by 150,000 party members who make up a tiny
0.35% of the electorate who voted in the referendum. The Labour party has been
shattered, perhaps permanently, and is currently unable to offer any real
opposition to whatever the newly elected leadership of the Tory party might
propose. This state of affairs does not feel any more intuitively democratic
than does the prospect of ignoring the referendum result.
For democrats there
is no straightforward way out of this. A crisis of political legitimacy is now
inevitable. There will be a crisis of legitimacy if the political class simply
ignores the vote to leave the EU. But given the division within the leave side
and the large body of disappointed voters on both sides of the debate it is
doubtful that there is anything like a democratic mandate and political
legitimacy for any one viable stance in relation to the EU. Should an unelected
Prime Minister approach the result of the referendum as a ‘winner takes all’
endorsement of his or her preferred flavour of Brexit and proceed accordingly
there will be a different crisis of political legitimacy.
The constitutional politics of this new
world require a general election to secure
democratic legitimacy for the next step. Within the context of such a general
election the political parties will have to compete for their visions of
‘leave’ and perhaps ‘remain’ too. Richard is correct that those on the remain
side must proceed in the knowledge that a majority of voters were against them
last Thursday. This was a constitutional moment – no ordinary political
decision – and deserves special respect. Having played by the rules of the
referendum and won, leavers have political legitimacy and political momentum on
their side. I find it hard to envisage circumstances in which the referendum
result itself could be reversed unless there is some very radical change of
circumstances. It should go without saying that a decision to reverse the
decision would require an overwhelming popular endorsement. A really
overwhelming majority for the remain side in a UK-wide general election and in
each of the countries of the UK taken separately might do it. A referendum run
on exactly the same lines, without any change of circumstances, might not. Yet
defining Brexit will remain intensely political. It is not simply a matter of
working out the detail. There is nothing inherent in democracy or democratic
politics that requires remainers to now stand back from the debate, or that
prevents them from offering realistic ‘remain-minus’ or ‘leave-lite’ scenarios
to the electorate in order to seek political legitimacy for their preferred
course of action. There is also nothing about democracy that prevents remainers
advocating a return to the EU should Brexit be completed. That’s politics in a
democracy.
Patrick O’Brien is a Fellow in Public Law at the London School of
Economics
(Suggested citation: P. O'Brien, 'The Democratic
Legitimacy of Changing Your Mind: A Response to Richard Ekins', U.K. Const. L.
Blog (5th Jul 2016) (available at https://ukconstitutionallaw.org/))
NOTE: TORIES assume that all they have to do is elect a new Prime Minister, in order to resume 'Government' as it was before; but, as is clear from this feature, WE, the 'common people' of this land, must insist on a "General Election"; in order to resolve this.
Gordonj
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