BREXIT – WHAT’S DEMOCRATIC?

Jo Johnson, when resigning from the government last week, said it would be a democratic travesty to not have a second referendum. Was he right? Brexiteers claim that, since there has been a referendum, the matter is settled democratically. Are they right?

No, they are both wrong. “Democratic” does not solve the country’s and Parliament’s dilemma.

A policy is democratic if it has been decided by correct democratic procedure. Hence, the referendum was democratic and the follow-up on the referendum has been democratic. But also, whatever Parliament decides at the end of the process will be democratic.

Even if a policy has been decided democratically, that does not necessarily make it a good policy. Democracy gives the people power and makes it less likely than otherwise that their representatives will embark on policies that are not in the national interest. But people power is no guarantee that representatives will not make bad decisions. Democratic decisions often turn out to be unworkable.

The fact that a policy has been decided democratically is not a reason to stick with the policy if it turns out to be counterproductive. Parliament overturns or changes its own democratic decisions all the time.

Britain is set to leave the EU on 29 March next year. If that remains Parliament’s decision, it will be democratic. That may or may not be a good decision but it will be democratic.

If Parliament decides against Britain leaving the EU, that will be democratic. Again, it may or may not be a good decision but it will be democratic.

If Parliament decides on a second referendum, that will be democratic. Yet again, that may or may not be a good policy but it will be democratic.

Parliament is in a terrible predicament. MPs want to behave democratically but “democratic” does not let them off the hook. Asking what is democratic solves nothing. The question before MPs, which they cannot avoid, is what decision is right for the country. Democracy, obviously, does not stand in the way of a democratic Parliament doing what it thinks is right for country and citizens.

WHY BREXIT WILL NOT HAPPEN – YET AGAIN

The fog is lifting. The plot is thickening. Minds are being concentrated. Brexit has turned out to be a national nightmare.

The UK-EU negotiations are clarifying the choices. Per now, August 2018, the British people and their Parliament have in front of them a menu with three options.

  • Alternative 1: There will be a deal along the lines of the government’s Chequers agreement.
  • Alternative 2: Britain leaves the EU without a comprehensive future trade deal and on World Trade Organisation terms.
  • Alternative 3: Brexit is suspended and Britain remains a member of the EU.

These are the only available options. A deal may be struck along the lines now under discussion. The government has concluded that this is the only kind of deal that is available, and a deal of this kind might be acceptable to the EU. Britain leaving on WTO terms is undesirable, but could happen. The government is making contingency plans for this eventuality. Britain remaining in the EU could happen if there were a change of mind.

The problem, however, is that all three available outcomes are impossible, not one or two of them but all three.

  • Alternative 1 is impossible because it implies Britain making itself a rule-taker of rules it has had no say in making. That is impossible for one of Europe’s big powers. A small country like Norway can live as a rule-taker, but not a big power. A vote ostensibly to take back sovereignty cannot result in the country diminishing itself to obeying other people’s rules.
  • Alternative 2 is impossible because it would risk the disintegration of the United Kingdom and come with other costs. It would give the Scottish nationalists the arguments they need to enforce and win another independence referendum, and put Irish unification back on the agenda. The economic costs, and costs to other forms of European collaboration, would be unacceptable.
  • Alternative 3 is impossible because Parliament has put the question of EU membership to a referendum and the referendum has decided that Britain will end its membership.

There are no good options available. In the end, Parliament must decide. Somehow, Parliament must cut through and choose between outcomes that all have their own impossibilities.

The ongoing negotiations will reduce the menu from three to two choices. If there is a deal, the choice will be between Alternatives 1 and 3. If there is not deal, it will be between Alternatives 2 and 3. In the first case, will Parliament reduce Britain to the status of rule-taker? Impossible. In the second case, will Parliament put the Union itself at risk? Impossible.

These matters will come to a head in Parliament later this year, or early next year. Neither Alternative 1 nor Alternative 2 will command a majority. The government will fall. There will have to be either another government, possibly a broad coalition under fresh leadership, or a new election, or a second referendum, or some combination of these.

 

HOW DEMOCRATIC IS A REFERENDUM?

In modern democracies, public policy decisions are usually made by assemblies of elected representatives, such as national parliaments and regional and local councils. They have a mandate from being elected by the people and decide on taxes, public services and the like, until they put themselves before the people again in the next election.

Sometimes, however, issues are put directly to the people to be decided by a referendum in which all voters can participate. This may be laid down constitutionally, such as in Switzerland and for some matters in some American states and cities. Or referendums may be ad hoc in that an elected assembly chooses to put some matters directly to the people.

These are two methods for making policy decisions: by elected representatives or directly in a popular vote. Both are democratic. Is one method more democratic that the other?

In the pure theory of representative democracy, the people elect representatives for the purpose of making policies on their behalf. When the elected representatives meet in assembly, that assembly is the people and when the assembly makes decisions, it is the people deciding. Constitutional thinking in Britain has traditionally been more or less in this line, and the use of referendums is therefore a bit of an anomaly.

What counts in favour of the pure theory is that when elections work as they should, the people elect representatives who are the more competent to make policy decisions and it is therefore in their interest to leave it to their representatives to govern.

In Britain we see this theory at work in the question of the death penalty. A referendum might well go in favour of reintroducing the death penalty but it is accepted that it should be left to Parliament to decide on the matter.

What counts against the pure theory is that elections may work out so that the assembly is not representative of the people and may therefore be biased and make policies that do not reflect the popular will.

A referendum is obviously a democratic way of making a decision, but it is not necessarily an effective corrective against bias.

First, this is not generally the rationale for having referendums. Where the method of referendum is a constitutional provision, the logic is usually that this is a way of constraining elected representatives, for example from taxing the people too heavily. Ad hoc referendums may be called for a range or reasons, some of which may be all but democratic, for example a government seeking to subvert the will of its parliament.

Second, while elected assemblies may be unrepresentative, so too may referendums. Although all voters can participate, not all voters do. A referendum is like a big survey that may get it wrong if those who vote do not make up a representative sample of all voters. In fact, referendums are likely to be unrepresentative because of selective bias in the motivation to participate.

Third, a referendum may not be an effective way of expressing “the will of the people.” We might think that people always know what they want and prefer and that it is only a matter of asking them. But if we think “the will of the people” is what they would have wanted if they had the opportunity to be properly informed about the matter to hand and to deliberate carefully with each other about it, we might suspect that a referendum is too crude an instrument and too much at risk of populist manipulation. If so, we might, in the interest of “the will of the people” put more trust in the indirect method of decision-making by elected assembly. We might do that if we thought (1) that representatives are likely to be better informed than the average voter and (2) that decision-making in assembly is subject to more rigorous deliberation.

Referendums are appealing because people participate directly. They have the ability to lend legitimacy to big policy decisions, which counts in their favour. But democratically, like the alternative method of decision-making by elected assembly, they have both advantages and disadvantages. The referendum method, although democratic, is neither more nor less democratic than the alternative. A democracy with a reasonably well functioning national assembly has, for reasons of democracy, no need for referendums. There may be various reasons for calling a referendum, of which adding democratic quality is not one.

WHY BREXIT WILL NOT HAPPEN (revised)

In spite of the referendum, Brexit or not is still the responsibility of Parliament. Parliament does not abdicate. Its charge is to look after the wellbeing of the population and country, and it is not possible for Parliament to walk away from that responsibility, nor in its nature to do so.

That is clear enough constitutionally. The referendum was advisory. Parliament could have decided to make the referendum binding but deliberately did not. It retained in law the authority to make the final decision and is not constitutionally bound by the referendum.

It is also clear politically. As we have moved on from the referendum, circumstances have changed and we have learned more about the meaning and consequences of Brexit. Brexit on the terms suggested in the referendum campaign is not deliverable. It is Parliament’s job to decide on the impact of how things are working out and what we are learning.

Imagine you are an MP today. You look into the future. You see, from one side, coming towards you an avalanche of necessary public investments: in infrastructure, in defence, in housing, in education, in social care, in the NHS. And you see, on the other side, low growth, low investment, lagging productivity, skill shortage. That adds up to an economy that cannot generate enough public revenue for necessary maintenance of society. You cannot avoid the question of whether it is compatible with your responsibility to let the country cut itself off from its most important community of trade and economic partnership.

You look to the British national landscape. In Scotland, Brexit will give the nationalists the arguments they need to push through independence. The Union will break up. In Ireland, a new border, more or less hard, will cut through the island and disrupt the peaceful coexistence that has been achieved. The worst scenarios may or may not materialise, but you cannot avoid the responsibility for exposing the Union to high risk. You turned you back on that responsibility in sanctioning the referendum. You cannot do it again.

You look to your own institution, to Parliament. You there see no settlement and no coming together around any shared strategy for implementing the referendum. Parliament has asserted its authority and to some degree taken charge, and pulled towards Brexit moderation. It has refused the government a free hand. The government’s original hard Brexit strategy has been killed. The principles of payment and a transition period have been conceded. You have learned that Brexit is not a simple matter of cancelling a club membership and you are trying to sort out in your mind what it really means.

Parliament’s confusion mirrors the population’s confusion. There is no “will of the people” out there. There is division, as reflected in the snap election. The division in the population carries through into Parliament and the Cabinet, and into the relationship between Parliament and government. Parliament is refusing the government a mandate of clarity and the government can do no more in the negotiations than muddle through without initiative, determination or direction. The risk is high that there will be no deal. Most MPs sit on the fence. They believe it is in Britain’s interest to be inside the European Union and they believe they cannot go against the majority in the referendum. That dilemma remains unresolved.

Politics in Parliament are even more tenuous than they look. Not only is the government without platform or support, both major parties have leaderships that in the European question are at odds with the majorities in their respective parliamentary parties. Leavers do not trust Remainers, Remainers do not trust Leavers. Backbenchers do not trust the front benches, and vice versa. The government does not trust Parliament, Parliament does not trust the government. The parliamentary truce is phony and not durable.

The talk of the town in Parliament that reaches the public is “how Brexit?” The talk of the town in Parliament that, for now, does not reach the public, is how Parliament can extricate itself from the mistake it itself made in calling the referendum.

MPs fear the uproar it would create if they exercised their constitutional authority to override the referendum. However, they also recognise themselves to be caught up in a dilemma from which there is no happy outcome. The choice they see in front of them is between uproar now or long term damage to the country. What may look like a mess, is Parliament’s lumbering, convoluted, step-by-step manner of resolving its terrible dilemma.

A DEMOCRATIC CASE FOR CATALONIAN SECESSION?

There is without doubt a strong movement within Catalonia for secession from Spain. Regional leaders, now Carles Puigdemont and before him Artur Mas, have claimed that they have a democratic mandate from recent elections and now the disrupted referendum.

But do they? What is the democratic argument in the matter?

Whether or not there is an electoral majority in Catalonia for secession is not clear. If there is, it is at best a small majority, with a large minority remaining in favour of Catalonia staying within Spain. Is a small majority, if there is one, enough for a democratic mandate for so large a move?

Two main rules of democracy are:

  • in the end, the majority decides,
  • in so doing, the majority has a duty to respect the interests of relevant minorities.

Democratically, the question of whether Catalonia remains a part of Spain or leaves the union is to be settled by a majority. But which majority?

People who live in Catalonia have an interest in the matter. But so do the people who live in the rest of Spain. If Catalonia were to secede, the remaining Spain would be a different country. The relevant constituency in the matter, then, is all Spanish people. Even a majority in Catalonia is a minority in Spain and can have no democratic right to change all of Spain. This principle was recognised, for example, in the 2014 Scottish referendum on independence. The right to hold that referendum was constitutionally given to Scotland by the British Parliament (in what is known as an ‘order in council’) after negotiations between the British government and the regional Scottish one.

Catalonian pro-secession leaders may be right that they have a democratic mandate of sorts. But if so, the mandate is only to seek secession. There is no democratic mandate for people in Catalonia on their own to decide on an important matter that effects all of Spain. For a Catalonian referendum, for example, to be democratically valid, the rest of Spain, as in the British case, must, at the least, have conceded to Catalonia the right to hold a referendum and agreed to abide by its majority.

How strong, then, is the mandate? Since there is (at least) a large minority within Catalonia against secession, the mandate for secession must be said to be a weak one. The minority has a right to have its interests respected. The question of independence is one of great principle. A small majority in a population hardly has a right to simply impose its will on a large minority in an important matter. The mandate to seek secession, if there is one, must contain a duty to persuade the doubters. Before Catalonian leaders could argue the case for secession with force in front of the rest of the Spanish population, they would need to show that they have at last a solid majority in their own population behind them.

The strength of the mandate is influenced, further, by the reasons that are given in favour of secession. In a founding text, the American Declaration of Independence, it is stated ‘that Governments long established should not be changed for light and transient Causes’ and that the ‘Right to throw off such Government’ arises only as a result of ‘Abuses and Usurpations [and] a Design to reduce them under absolute Despotism.’

The Spanish union is long established. The government is democratic and no group or province within Spain is under despotism. From the Catalonian side, it does not seem that strong arguments are given for secession, and certainly nothing of the kind suggested in the American declaration. It seems mainly to be a case of resentment. It is said within Catalonia that the relatively wealthy province is being forced to subsidise poorer areas in the country. But that kind of redistribution is standard in a well-governed country and obviously nothing like despotism.

However, the Catalonian leaders may still have a democratic mandate to seek independence. They therefore represent a minority within Spain with a valid interest in a vital matter. The rest of Spain therefore has a duty to respect the interests of that minority. One way to do that might be to negotiate with Catalonia for a different constitutional settlement.

But, again, if such negotiations were to result in proposals for a radical centre-provincial realignment, the democratically relevant constituency for ratifying the realignment would be the entire Spanish population, for example as represented in the national assembly, the Cortes.

WHY BREXIT WILL NOT HAPPEN

Parliament is moving towards preventing Britain from exiting the European Union. It is not there yet but in its lumbering, convoluted, step-by-step manner, that’s where it is heading.

Parliament carries the charge and responsibility of protecting the British people’s interests and well-being. It is not going to sit by and allow the country to cut its legs off. Critics of Parliament, such as myself, are often in despair of its ineffectiveness, but the historical experience is nevertheless that in the big questions, in the end, Parliament comes through.

Since the referendum, there have been huge shifts in Parliament in how to deal with the outcome. We started with the government’s determination to implement hard Brexit with minimal involvement by Parliament. Hard Brexit is now off the agenda and Parliament has asserted itself and continues to do so. It is denying the government any unambiguous mandate for how to negotiate in Brussels.

Parliament has enforced the acceptance that there must be a transition after the completion of negotiations in which Britain remains a member of the Union for some as yet not determined period. The view is strengthening that Britain must remain in the single market, which is code language for continued membership. The Norwegian solution of being part of the single market without membership of the Union – accepting the rules with no say in the making of rules – is impossible for a big country. The Labour Party has moved to the single market position, for (as they say so far) an indefinite period.

After the failed general election, there is a confusion of ambivalence in Parliament which perfectly reflects the confusion of ambivalence in the population. There are criss-crossing views in Parliament on Britain and Europe, with constellations in constant movement. In neither of the big parties are the leaderships representative of their respective parliamentary parties. Everything is in flux. Nothing is settled. Members of Parliament collude in corners and corridors day in and day out. The huge shifts we have seen so far are in continues motion.

More is known about the consequences. The argument that Brexit would be simple has been disproved. The argument that is would save money has been disproved. The argument that it would be economically costly has been proved: the British economy is now worth 10% less to the world.

The risks have been clarified. Trade and investments will suffer. The union will break up: Brexit will give the Scottish nationalists the arguments they need to carry the day. These risks may or may not sway public opinion but in Parliament they matter.

Can Parliament overrule the majority in the referendum? It is no simple matter for it to so do and it will, to put it carefully, be problematic. But, referendum or not, Parliament carries the final responsibility.

Parliament has the formal right to overrule the referendum. Constitutionally speaking, the referendum was advisory. In the British constitutional tradition, Parliament is sovereign and that sovereignty was maintained in Parliament’s remit for the referendum.

It also has the moral right. It has obeyed the referendum and started the process. That has moved us on. The facts have changed. Matters have been clarified. We know more. Parliament has a duty to deal with the world as it is and is not bound to dealing with it as it was.

The emotive language following the referendum is “the will of the people.” But there is no single “will of the people.” The population is divided, even in the referendum pretty equally. It is for Parliament to work itself through divisions in the population towards a reasoned position in which it pays heed not only to the (small) majority and the (large) minority in the referendum but also to the interests that were not reflected in the referendum, notably of the young who (regrettably) did not vote in the numbers they should have.