Brexit and the weaknesses of referenda

This is the second part of a three-part essay, which will be published in full in 2017 by Dædalus, the Journal of the American Academy of Arts and Sciences. The essay begins by outlining the often invoked “crisis” of representative democracy and its major symptoms. Second, which is published below, it discusses popular yet worryingly misguided response to that crisis, namely the switch to plebiscitarian methods of “direct” democracy, as advocated, for example, by rightist populist forces in many EU member states. The UK Brexit referendum of June 2016 illuminates the weaknesses of this approach. Third, it suggests a rough design for enriching representative electoral democracy.

The battle cry of rightist populism is “Let us, the people decide” and take control out of the hands of untrustworthy national elites and illegitimate supranational forces. The arsenal of plebiscitarian methods (which, to be sure, are sometimes also advocated by some non-populist forces) includes referenda on policy issues, citizen initiatives to hold such referenda, and agenda initiatives to force legislatures to address certain policy issues. The use of survey research for identifying popular preferences and then elevating them to the status of policy priorities on leaders’ platforms can sometimes be seen as cases of social-science assisted populism. Thirty-six of the 47 member states of the Council of Europe have by now adopted one or all of these direct-democratic devices as part of their constitutional repertoire. In 2012, the EU itself introduced the European Citizen Initiative as a device of supra-national direct democracy. In recent years, these instruments of direct democracy have been applied to policies as varied as whether to permit or ban the construction of minarets, restrictions on migration, the public use of a minority language, the acquisition of agricultural land by foreigners, same sex marriage, the (retroactive) imposition of inheritance taxes, and the introduction of a basic income. In the context of the failed recent military coup, the Turkish president has gestured at holding a referendum on re-introducing the death penalty. The target groups of these referendum campaigns may be Muslims, migrants, sexual minorities, wealthy heirs, foreign real estate speculators, European institutions, criminal enemies of the state, or ethno-linguistic minorities. Although Switzerland has the oldest and most famous tradition of direct democratic legislation in Europe (usually preceded in that country by extensive and reasonably balanced public debates on issues), these practices have spread in more limited forms to other countries in Europe, with hot spots being the rightist populist regimes that have emerged in many of the post-Communist polities. In Hungary a national referendum on a mandatory EU migrant quota was held (and lost by the governments due to insufficient turnout) in October of 2016. Yet probably the most consequential referendum held in Europe to date appeared in precisely the European country famous as the birth place of parliamentary representative democracy, the United Kingdom.

The Brexit referendum of June 23, 2016 asked the citizens to vote on whether the UK should leave the European Union or remain its member state. Note that this referendum was called for, but not initiated by, a rightist populist political party. To the contrary, it was politically designed by a Conservative yet pro-European PM with the intention of curbing the growing political influence of the populist United  Kingdom Independence Party (Ukip), thus turning, David Cameron hoped, the means of populists against their ends. To the surprise of most observers, that plan failed when a narrow majority of voters actually voted Leave. Was it a wise decision to let the question of Britain’s EU membership be decided by referendum? In addressing this question, I shall refrain from discussing the substantive political question of whether Brexit is a “good” move, confining myself to the issue of whether the method used in making the decision was an adequate one.

Leading up to the Brexit vote

Here is a rough summary of the events. In the 2014 general elections to the European Parliament, Ukip, the British anti-EU political party, won a relative majority of 27.5 per cent of the vote, with most of its votes taken from voters defecting from the Conservative Party. Recognition of this growing threat prompted the incumbent Conservative Prime Minister David Cameron to commit himself in January 2013 to holding a referendum on the Brexit issue by the year 2017 if he were re-elected in the national elections of May 2015. His decision was a concession to the rightist populist demand to let “the people” express its will directly, rather than being represented by untrusted elites suspected of being corrupted by their own or other special or “foreign” interests. Populists are to be classified as “rightist” when framing the people in terms of nativist ethnic belonging vs. some strange, foreign and (as such) threatening enemy. Cameron’s promise to hold a referendum was intended to serve the dual purpose of (a) increasing British bargaining power in ongoing negotiations with EU partners (who were seen as averse to further Ukip gains and the prospect of Brexit and hence ready to grant concessions to the British government on the key issues of Euro-mobility and “ever closer” integration) and (b) to immunize the Conservative electoral base against further defections of voters, as Eurosceptic Conservative voters were now offered the option of expressing their Leave preference without having to switch to supporting Ukip.

Both of these purposes were, to an extent, achieved, the second more fully than the first. The turn to plebiscitarian methods (which are foreign to the UK’s constitutional traditions) came at the price of undermining the authority of Parliament, the members of which opposed Brexit by a large majority. Having won the 2015 elections and being bound by his referendum promise, Cameron initiated the EU Referendum Act, which was passed by the House of Commons in December 2015. When the referendum was eventually held on June 23, 2016, the result was 51.9 per cent Leave vs. 48.1 per cent Remain, with the citizenry sharply divided along class, age and regional lines, but not equally sharply along party lines. Given a turnout of 71.8 per cent of all eligible voters, this means that a minority of roughly 37.3 per cent of the electorate will have caused (if it actually comes to that) Britain’s exit from the EU by a margin of just the four percentage points that put Leave ahead of Remain.[1]

Decision day: unclear alternatives

When making their decision on referendum day, citizens were largely left with their own individual means of will formation (their beliefs and preferences) and without much clear guidance from the political parties as to which of the alternatives, together with their entirely unknown implications, to choose. The two major parties were either openly divided (Conservatives) or deeply ambivalent (Labour) about what to recommend to their voters. Yet the only party that was clear and committed on the issue (Ukip) had no chance of achieving the parliamentary representation through majoritarian British electoral law to follow its option through. The cleavage of pro’s and con’s was almost orthogonal to the major party cleavage. Similarly divided were the media, with some of the tabloid press engaging in a vehement denunciation of the EU, often with little regard for the truth of their claims.[2] Moreover, both camps relied heavily on fear as a negative economic motivation – the Leavers fearing loss of control over the fate of “our” country to “Brussels” (or fearing competition with foreign migrant labour for jobs)[3] and the Remain camp fearing the adverse economic consequences (jobs, trade, investment, exchange rates) of “Brexit.” Appeals to the advantages, political attractions, prior commitments, hopes and promises of remaining were rarely advanced, implying that there were few. Left in a state of disorientation and anxiety, and being informed by the media and polling organizations that the contest would be a tight one (suggesting that every vote or abstention could make a big difference), voters were to rely on their gut feelings, rather than an informed judgment, on the merits of the two alternatives.[4]  The dichotomy of a referendum further induced the voters to ignore the numerous “intermediate” solutions that may still be worked out through bargaining following the formal declaration of Brexit. One of the damages the reliance on the plebiscitarian method can do stems from its one-sided fixation on voting at the expense of the two other modes of democratic political communication, namely arguing and bargaining (Jon Elster). Plebiscitarian procedures thus impoverish the tool box of democratic politics by eliminating the space for post-voting reasoning and compromise-finding in the institutional framework of representative democracy. They privilege the fast impulsive snapshot reaction generated by passions and visceral instincts over the more time-consuming balancing of interests and the typically even lengthier process of persuasion through argument. As a consequence, consistency is not required: Voters can simultaneously opt for lower taxes and greater expenditures, or for cheaper gas and stricter environmental standards.

Not only were the two major parties split in their preferences between Remain and Leave. Voters too were “cross-pressured” at the individual level. Many voters were motivated by the issues of immigration and “sovereignty”, with the support for the Leave alternative fuelled by an identity-based opposition to having to adopt “foreign-made” EU laws (“let’s take back control of our country”). Yet at the same time, many of the same voters “regarded the economic impact of leaving the EU negatively. … No less than 40 per cent reckoned that Britain would be worse off economically if it left the EU. … The two central issues of the campaign were seemingly pulling voters in opposite directions.”[5] Fears for the economy, based on socio-economic interest, provided a reason for voting in favour of Remain. In this implicit debate of identity vs. interest, the elderly and the less educated considered EU membership both a cultural and economic threat and hence gravitated towards the Leave option while the best educated below age 45 welcomed diversity within Britain because they could “compete with ease in an internationalized labour market”.[6]

Brexit voting filters

How has the Brexit referendum performed in realizing the democratic principle of equality of political rights to make one’s voice heard? Good democrats know that those affected by the law must have a voice in making the law. Yet voting rights in the Brexit case became effective only by passing three filters: First, in the UK you must be a citizen, not just a resident, to be eligible for voter registration in national elections/referenda. Millions of mainland EU citizens residing in the UK were thus not allowed to register and vote. That would be immaterial had the referendum been on a “purely British” issue. But here the category of people most directly affected by Brexit are exactly those migrant workers from member states residing in the UK. After Brexit, these migrant workers are likely to be deprived of some or all of their socio-economic rights as EU citizens.[7]

Second, you must register in order to be admitted to the voting booth. “Many people chose not to register to vote because they feared debt collection agencies that are allowed access to the electoral register.”[8] As many as seven million eligible adults were not registered to vote in the UK in 2016, perhaps in part due to that deterrence effect.

Third, you must vote. Thirteen million registered voters did not turn out. They were disproportionally the young, flat dweller, renters, members of ethnic minorities, and recent movers. Older people voted in greater proportion. They generally voted for Leave, while among those aged 18 to 24, 73 per cent voted (if they voted) Remain. But the youngest age groups also had the largest share of abstainers. Again, a paradox shows up in that those affected by the outcome for the longest time span, i. e. the young, had the lowest impact on that outcome, and those least affected the greatest impact.

So much for the democratic egalitarianism of voting in referenda. In regular elections, contending political parties provide some guidance to voters and tend to make an effort to mobilize in demographically balanced ways. Another problem of referenda is that there is no way to make sure that the answer voters give is actually their answer to the specific question they are asked, in this case the question of EU membership or not. Chances are that the answer the Leavers gave was the answer to an entirely different question, such as: “Do you want to seize the opportunity to send a hostile message and cause trouble to the hated political establishment — be it the national or the one in Brussels?”[9] If this is the question being actually answered (and answering “yes” is less inhibited because of a widespread belief that the Remain camp would win anyway), there is no reason for voters to stick to their “answer” for even a single day after the vote. When surveyed immediately after the referendum, “seven per cent of those who voted Leave feel like they did not make the right choice”, while no less than 29 per cent  considered their vote instrumentally futile as the two goals of the Leave campaign could not in fact both be accomplished in the upcoming Brexit negotiations with the EU, namely the interest-related goal to stay in the single market and enjoy its economic advantages and the identity-related goal to limit freedom of movement of EU citizens and to “take back control”.[10] Concerns of interest and those of identity seem to have pulled voters in different directions.

Referendum regret

Given its vast and highly uncertain short term as well as long term repercussions (for Britain and for the geopolitical role of the EU and its prospects for further disintegration) of the largely unanticipated referendum outcome, over four million voters signed a petition on the days after the referendum which called for holding a second referendum, thus indicating a widespread sense of regret, as well as alarm, over the outcome. Yet such a repetition would seemingly have required another Referendum Act as its legal basis. It would have opened the horrifying perspective of an endless chain of further referenda on the outcomes of prior referenda: Vote until the outcome seems right! If the first is seen by voters as ill-considered and in need of self-correction, why should the second fare better?[11]

Ill-considered procedural design

How can the decision to let the relative majority of those participating in the referendum decide on a most complex, highly consequential yet at the same time most unpredictable national issue be justified as the “right” procedural decision – rather than as the (eventually failed) opportunistic calculus of a leading politician to maintain his power over his party and the country? In other words: What is this outcome’s procedural source of validity and normative bindingness? The procedural design of the Referendum Act was ill-considered.  It failed to make use of the several safety valves that can be applied in referenda in order to strengthen the normative bindingness, or legitimacy, of the outcome – that is, its prospects of being durably and universally recognized as reasonable and hence valid, rather than as a regrettable collective misstep. For one thing, a quorum, or minimally required turnout of voters, could have been stipulated, such as a 75 per cent requirement. The stipulation of such threshold, however, might have provided the opportunity for the Remain side to sabotage the referendum by launching an abstain campaign. Another possibility might be, a super majority requirement, such as a 60 per cent threshold for the winner.[12] Adopting such a supermajority rule would avoid deciding a matter of this magnitude by a slim and possibly even accidental and unstable majority. A third safety measure could have been the use of federal constraints. Given that the United Kingdom is a multi-national political entity, one or more of its constituent nations, Northern Ireland, Wales and in particular Scotland (where the Remain vote achieved a substantial majority) could have been procedurally protected from defeat by a (narrow) overall national majority by granting Scotland autonomy rights concerning the issue of EU membership. In fact, the referendum result has strengthened Scotland’s claim for national autonomy, thus putting into political jeopardy the very unity of the UK. Finally, a test vote (as sometimes taken in party groups of legislative bodies) could have been provided for, the result of which would have informed voters about dispositions of their fellow citizens and to revise or assert their own dispositions accordingly in the second (and only valid) round.

Applying some or all of these provisions could have been justified by the fact that the Brexit referendum was a one-shot and highly consequential decision. The decision creates consequences that are certain to make themselves felt in the long term. In contrast, the “normal” democratic procedure of holding contested elections is defined by its periodicity, meaning that governing authority is granted pro tempore and that losers of an election will have another chance in four or five years’ time, with both competing parties and members of the general public being given a learning opportunity to revise platforms and preferences during the interval. An election constitutes both a government and an opposition of losers, while a referendum constitutes a fait accompli that can no longer be challenged.[13] If after an ordinary legislative election policies are considered to have gone “wrong”, there is someone to blame (and punish) in the next election, whereas the voting public can only blame itself (i. e. nobody in particular, as the vote is secret and nobody can be held accountable) in case the results of a referendum turn out to be widely seen as mistaken.

A further provision that was in fact deployed in the Brexit referendum is the procedural stipulation that the government is not strictly bound to implement the result but can treat it as merely advisory. As sovereignty resides in Parliament, it is, arguably, that representative body that must eventually decide whether or not to endorse and implement through its law-making the referendum decision. In theory, the only thing that even the most sovereign body cannot do is to abdicate its own law-making powers and transfer it to another body such as the multitude of citizens voting in a referendum. It seems to follow that a Prime Minister cannot self-bindingly promise voters that s/he will follow their expressed preferences as if they constituted an act of legislation. Absent a parliamentary or at least executive ratification of the (presumed) popular will as expressed in a referendum, such a referendum cannot be binding. For example, the invocation of Art. 50 TEU (the article that prescribes the first step of the procedures of actually exiting the Union) must be an act of Parliament or at least, in case “royal prerogative” were to apply (which is bitterly contested), a decision of the Prime Minister who in turn might be seen in need of winning the legitimacy of her/his decision through an endorsement through regular elections (rather than a non-electoral accession to office, as in the case of PM Theresa May). These manifold ambiguities and disputes illustrate the extent to which the “will of the people” is a largely elusive substance contingent on the procedures by which it is being assessed. Holding a referendum has not been, in the instance of Brexit, a way to settle a question but an inadvertent move to open a constitutional Pandora’s box. The attempt to fight populism by adopting its own plebiscitarian weapon has not only misfired but turns out to have had a destructive impact upon the principle of representative government.

To be sure, a parliamentary validation of the referendum decision might well be the result of principled argument and proper deliberation, weighing the merits of the “advice” the voting public has offered against alternative policies. Yet the sovereignty of Parliament, in the sense of having the last and decisive word, has largely been rendered nominal by the referendum and the legislature’s prior decision to hold that referendum. By adopting the EU Referendum Act, thereby (seemingly) passing its legislative responsibilities to the “people”, the Parliament has virtually destroyed its recognition as a body to be credited with the capacity to form policy on the basis of informed, considered and balanced argument. It has eschewed its responsibility to do so, thereby in a way confirming the caricature populists paint of members of the “political class”.  If Parliament abdicates its law-making authority on as weighty an issue as EU membership, what should prevent it from doing so on other issues in the future?[14]

Unambiguous lesson learned

Having unleashed the plebiscitarian forces voicing fear of foreign control and foreign migrants, neither the political parties nor the members of Parliament could henceforth afford to advocate any solutions to future UK-EU relations that could be denounced as defying the referendum’s “advice.” Politicians cannot be expected to commit electoral suicide by refusing to follow the “will of the people” the expression of which they themselves had allowed for, even if only as part of a power game. These problems (and not an electoral or parliamentary defeat) made the committed Remainer PM David Cameron disappear from the scene of U. K. national politics in a matter of weeks, while the most prominent Leave protagonist, Boris Johnson, moved up to the position of Britain’s Foreign Secretary. The new PM’s signature tautology (“Brexit means Brexit”, being void of any information about what Brexit means) ratifies the unconditional surrender of representative to plebiscitarian will formation. It also gives carte blanche to rulers to define the meaning ex post. As constitutional scholars Gordon and Maffat have stated with unfathomable yet inconclusive juridical wisdom: “In practice, the […] referendum outcome will bind the government. In theory it is advisory but in reality its result will be decisive for what happens next.”[15] At the time of writing (November 2016), the answer to this question is by no means settled by the referendum, but remains a pending case before the highest court of the country.

Given all these premises, dilemmas and consequences, the Brexit referendum must be considered a clear and unambiguous lesson on what democracies ought not to do.

[1]   The day after the referendum, Philip Stephens, chief political commentator of the Financial Times (June 24, 2016) commented in undisguised horror: “Who would have thought pragmatic, moderate, incrementalist Britain would tear down the political temple? This week’s referendum result was a revolt against the status quo with consequences, national and international, as profound as anything seen in postwar Europe.”

[2]   The sarcastic label “post-truth” has been attached by several commentators to populist movement practices. This label is not only deserved by the generous use populist campaigns have made of outright lies, but also, as in the Trump campaign, by their anti-intellectual aversion to expertise and educated intelligence.

[3]   Princeton economist Ashoka Mody has put it well: “Cameron misjudged … by making an economic case for remaining in the European Union rather than attempting a serious political argument for Europe – one based on shared values.” www.independent.co.uk/news/business/analysis-and-features/dont-panic-britains-economy-can-survive-just-fine-outside-the-european-union-a7118736.html

[4]   There is more than a grain of truth in Edmund Burke’s famous claim: “Your representative owes you … his judgment, and he betrays, instead of serving you, if he sacrifices it to your opinion.” In the case of Brexit, it was the plain cowardice of representatives facing a populist challenger that caused this sacrifice.

[5]    John Curtice, “Brexit: Behind the Referendum”, pli.sagepub.com/content/7/2/4.full.pdf+html

[6]   ibid.; Wolfgang Streeck has argued that “the losers under neoliberal internationalism [aka “globalization”, CO] place their hopes on their nation states”.  Cf. www.lrb.co.uk/v38/n14/on-brexit/where-are-we-now This causal explanation of the outcome commands a great deal of empirical plausibility. But equally great is the temptation to exclaim, with the words of the great Austrian poet Ernst Jandl: “What an error!”.

[7]  A reciprocal loss of socio-economic status rights applies to British citizens being economically active in EU member states who, after Brexit, are now relegated to the status of third country nationals.

[8]   Benjamin D. Hennig and Danny Dorling, “In Focus: The EU Referendum”, pli.sagepub.com/content/7/2/20.full

[9]   This was widely seen by commentators to have happened in a Dutch referendum held on the highly technical as well as politically rather marginal issue of a Dutch Approval Act on a European Union-Ukraine Association Agreement which was held in the Netherlands on April 6, 2016. The outcome was a turnout of 32,8 per cent, with 61 per cent voting against the Act. In an interview after the referendum, the members of the rightist nationalist Committee that had successfully campaigned for holding it “admitted that they didn’t really care about Ukraine at all, but are against the political system of the EU”. en.wikipedia.org/wiki/Dutch_Ukraine%E2%80%93European_Union_Association_Agreement_referendum,_2016

[10]   Cf. opinium.co.uk/voters-react-to-post-referendum-world/. – Besides, the thought that voting for Brexit means “taking back control” is plainly delusionary, at least in the short and medium term. For article 50 TEU that is still binding for the UK stipulates that “the Union shall negotiate and conclude an agreement [with the UK]”. In the interest of the the Union to prevent the Brexit decision from becoming a template that other member states might follow, the EU is likely to opt for the harshest possible terms in negotiating Britain’s exit arrangement, thus “taking vontrol” over the economic fates of the UK to an unprecedented extent.

[11]   There is, however, a strong argument for having a second referendum at a later point. As the proponents of Brexit had no plan (and could not have one) concerning the many and very different versions of what is going to happen next in re-embedding of Britain into the international political economy, the eventual outcome of negotiations with the EU must also be subject to a (dis)approval by voters. As Simon Wren-Lewis has cogently argued: “I cannot see the logic in saying people should have a direct say in whether to leave the EU but no direct say on what to leave for.”

[12]   As one commentator notes, “it is highly unusual [in mature democracies] that, particularly on issues of great constitutional significance, a simple majority of those who happened to vote on a particular day should be regarded as binding.” Brendan Donnelly, “After Brexit: The Light at the End Of the Tunnel is Several Oncoming Trains”, www.socialeurope.eu/2016/07/light-end-tunnel-several-oncoming-trains/

[13]   “48 per cent of voters … who wanted to remain in the European Union now suddenly find themselves substantially unrepresented in the British Parliament”, Brendan Donnelly, op. cit.

[14]  This question touches upon the thorny issue, not to be dealt with in the present essay, of what kind of policy issues are “safe” to be processed by plebiscitarian methods. Referenda on constitutions can arguably enhance the self-binding effect and thus the constitution’s validity and longevity. The adoption of legal rules the consequences of which are easily understood, predictable and largely uncontroversial (e. g., local referenda on opening hours of stores) would also seem unproblematic. The same can surely not be said of the plebiscitarian adoption, now common in several EU countries, of rules that discriminate against moral, ethnic, migratory, sexual, religious or criminal minorities (as in the current initiative of the Turkish president to hold a referendum on the re-introduction of the death penalty).

[15]   Richard Gordon and Rowena Maffat, Brexit: The Immediate Legal Consequences, London: The Constitution Society 2016, p. 7