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Tuesday 14 May 2019

Is Brexit Democratic?

Brexiteers are constantly telling us that Brexit is the will of the people and that the current impasse is a betrayal of democracy by the ruling elite.

How true is this?

On 23rd June 2016 the people of the UK were asked "Should the United Kingdom remain a member of the European Union or leave the European Union?"

17,410,742 replied leave and 16,141,241 replied remain with 25,359 spoiled papers. A clear result that at that particular day in time an opinion poll of the people clearly indicated that a majority of people who voted wanted to leave the EU. This is undeniable. Whatever else follows it is clear that we had a democratic vote and there was a clear result - with normal usage of words it is undeniable that a democratic mandate to leave the UK had been given to the Cameron government.

But what exactly does this really mean?

To start with I want to clear one thing up! Any democratic mandate is not the 'will of the people'. In 2016 the population of the UK was estimated to be 65,788,574. Only 26% of the population of the UK actually voted to leave the EU. I can hear howls of derision from Brexiteers claiming that children and people ineligible to vote shouldn't be included - and that's fair enough - I just wanted to put that statistic out there because if you are talking about the will of the people then surely you need to include all of the people? Don't you?

Let's look at it another way. In all 46,500,001 people were registered to vote. This gives us a figure of 37% who voted to leave. So a minority of those eligible to vote actually voted to leave. Surely now it is absolutely clear that the referendum result was not the 'will of the people'? The referendum result was the will of the people who bothered to vote on one particular day. Nothing more than a snapshot, an opinion poll on one day in history.

Does this mean that the result didn't provide a democratic mandate? Not at all. With our first past the post voting system our government is usually elected with around 30% - 40% of the vote. In 2015 the Conservative Party obtained 36.8% of the vote and formed a government - although 63.2% of voters did not actively want a Tory government the democratic process provided us with one anyway.

Brexit is not the will of the people - but it is the result of a democratic process and it does have a democratic mandate.

There are challenges to this though. An objection that hard line Remainers often bring up to the democratic efficacy of the vote is the question of illegality. The case is made that the Leave campaign acted illegally during the campaign and, indeed, this has been borne out in the courts. But there are a few problems with this argument.

To look at this argument in context we need to first discuss the advisory nature of the referendum.

Remain makes a big issue of this advisory status. The argument goes that because the referendum wasn't legally binding we should be able to ignore the result. Well this is true - but why would a government ignore a democratic mandate given to it (when it made a promise that it would act on that mandate) just because it wasn't technically bound by the result? As a staunch Remainer I have to agree that it would be a gross betrayal of the democratic process if the government chose to ignore the mandate given to it after it had made a clear promise. In fact I often criticise politicians when they do this so how can I complain when they actually follow through on a promise?

How else can you construct this advisory status objection? You can argue that we only had a referendum because Cameron wanted to protect the Tory vote and fend off the electoral challenge from UKIP once and for all. This seems undoubtedly the case - but it doesn't mean that the vote was undemocratic. Just because the referendum had a poor basis for coming into being in the first place doesn't justify using the advisory status to trump the democratic implications. The government made a promise to act on the result of a vote - end of story - though it isn't quite the end as I will show later!

Going back to the illegality aspect of the referendum - and this is why we needed to examine the advisory status of the referendum - the courts have declared that if the referendum had been binding rather than purely advisory then the result would have been made void because of the illegality of the campaign.

In other words the referendum can't be ignored - even though the illegal acts of the Leave campaign would have technically made it void in other circumstances - because of its advisory status. Another heavy blow indeed for Remain!

Yet Remain still tries to have its cake and eat it. Remain can't argue both that we should ignore the referendum result because it was advisory only and simultaneously argue that the result should be ignored for illegality. It has to pick one or the other, and to be frank, neither really holds water.

I have already shown why I don't think it would be right to ignore a democratic process simply because of an advisory only status. I also don't think it would be right to ignore the result on the basis of the illegality of the Leave campaign.

The courts have said that in a strictly legal term the referendum would have been voided if it had not been advisory. That is certainly the case but it is a legal position rather than a democratic one. On this issue if you wanted to show that the democratic value of the result had been so tainted by illegality as to warrant it being ignored then you would need to make a much better case. Yes, the Leave campaign broke the law - what I am saying is that I don't believe that the effect of that illegality was so great that an entirely different result would have been produced if the illegality hadn't occurred. I don't think the scale of the illegality would necessarily have affected the result that much. And yes, this is my OPINION. This is my personal blog so just an opinion. I don't have evidence for this statement - but then I don't see evidence to the contrary either. So let's move on from the issue of the advisory status of the referendum.

Another argument against the democratic nature of the referendum, and possible justification to ignore the result, is the plethora of lies that the Leave told during the campaign. (Again, I hear howls from Brexiteers that Remain also told lies. Maybe they did but then the result went in favour of Leave, so Remain lies are therefore irrelevant to the result.)

Well this argument doesn't hold any more water than the advisory status red herring. Politicians lie, bears shit in the woods and the Pope is Catholic. If you are stupid enough to believe lies told to you by politicians then you deserve the consequences to be honest. What else can I say?

So my conclusion is that the referendum gave a clear democratic mandate to leave the EU - but this is isn't the end of the matter it is just where the problem starts as far as I am concerned.

Yes - the government has a democratic mandate to proceed with Brexit. Indeed there is a democratic requirement that it should proceed with Brexit because it made a promise that it would.

A big problem though is that the government made a promise which it isn't able to keep and which it had no right to make in the first place!

The UK has a constitutional system of government which involves a principle known as the 'separation of powers'. There are three distinct bodies which provide the constitutional framework by which we are governed. The 'government', known as the executive, brings forward new legislation and uses current legislation as the authority to govern. Parliament enacts new legislation and is distinct, in theory, independent of the executive. This means that the government doesn't automatically get to create new law as it sees fit - new laws can only be created by Parliament. Finally the judiciary exists to interpret the law and make rulings whenever there is a dispute.

When Cameron promised that his government would act on the result of the referendum what he actually promised was that his government would bring forward legislation to do so. The problem is that he had no right to promise on behalf of Parliament that it would enact his legislation. Normally there wouldn't be this problem because the government of the day usually has a majority in Parliament - but on this issue it doesn't. Parliament is in no way bound by the promise made by Cameron's government. This situation is perfectly democratic, given our constitution, it is quite right for Parliament to exercise its power and refuse to enact the legislation that the government brings forward - if it sees fit. All of you people out there, Brexiteers or otherwise, who are decrying Parliament as being undemocratic and betraying the will of the people have got this so wrong. You should be celebrating the fact that we have a sovereign Parliament and that our constitution is doing the job it is supposed to do! Not that this helps solve the problem that our 'balanced' constitution is generating.

There is no answer to this problem until Parliament is prepared to enact a proposal that is brought forward - and this it has been unable to do.

Why hasn't Parliament been able to enact the required legislation and why shouldn't it be bound by the government's promise? Ultimately this is because the referendum didn't address the question of exactly what the terms of leaving the EU should be. This was a question that wasn't addressed because the complexity of the issue would have prevented a sensible referendum question being brought forward in the first place. It has taken three years and we still can't agree on the best way to actually leave the EU - there's absolutely no way that we could have had a referendum question that addressed the mechanism of leaving the EU without several years of debate - as has been proven.

"Well so what!" I hear those Brexiteers shouting. After all Brexit means Brexit and leave means leave. But that's the trouble - this circular reasoning is offered because the detail of what Brexit or leave truly mean was never discussed before the referendum. There were lots of claims made - most of which have now proven to be false - but no clearly defined plan. Whenever the Remain campaign asked the Leave campaign - "well exactly what is your plan?" the question was met with deafening silence - apart from the platitudes of "it will be alright on the night." But it wasn't alright on the night was it?

During the campaign no clear plan of how to leave the EU was offered by either side. The closest we ever got was for it to be stated that the UK government would negotiate with the EU and everything would be fine and dandy. How wrong that was!

But still what's the problem? After all Brexit means Brexit, leave means leave - we can just exit the EU with no deal. Sure - but there's no more democratic mandate for that than there is to revoke the Article 50 invocation - and that's the knot in the grain that we have with democracy and Brexit.

The government has a democratic mandate to leave the EU based on a negotiated settlement with the EU. Unfortunately nobody likes the negotiated settlement and, as I have shown, Parliament has no obligation to enact something that nobody likes.

So yes Brexit is democratic - but only on the basis of a negotiated deal - there is no democratic basis for either no deal or to remain.

The answer? Who knows? Maybe May will be able to cobble together enough support for some proposal at the umpteenth time of asking - I certainly don't have a clue and I have given up trying to predict what will happen next in this embarrassing saga.

My suggestion is a third (binding) referendum which is based on preferential voting options.

On our ballot papers we rank the options to leave with no deal, accept May's negotiated deal or remain. If one option achieves more than 50% of the vote after the first round of vote counting then that option wins. If not then the option that receives the lowest support is eliminated and the second preference of those voters are added to the other options. In that way we would arrive at the option that there is most democratic support for on referendum day.

The referendum could easily be binding (so we could avoid the problems of a non-binding referendum) if Parliament enacted a Bill which included what happens after the referendum without further Parliamentary voting. The last three years have given us plenty of time to consider the real pros and cons of leaving the EU so we would all be better informed.

Indeed, as far as I can see this is the only way forward that can possibly heal the division that we now face within the UK. Unless Parliament votes through May's deal there is no democratic basis for any decision and all sides of the argument would be justified in claiming that democracy had been overridden if we left with no deal or if we remained in the EU.

Whatever happens, without a third referendum there will be years of condemnation from one side or the other and immediately new campaigns will be set up with a view to reverse whatever has happened - and the whole cycle will begin again.

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