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Brexit: The Case for Illegitimacy

07/07/2016 12:41 | Updated 07 July 2016

On the basis of democracy, the result of the EU referendum needs to be - if not annulled - at the very least debated and voted on by Parliament. I am not seeking to reverse a decision that I don't agree with by looking for new rules or seeking a second referendum (for if the first was a mistake a second would be a greater error) but the simple truth is that the referendum outcome is democratically illegitimate. It cannot be justified on the appeal to democracy.

The outcome of a referendum is unlike the outcome of a general election where simple majorities determine the result. A referendum on a matter of major national importance and in which huge constitutional issues are implicated is in itself not decisive. It is consultative. Many countries have rules on the conduct of referenda, such as the size of the majority decision for it to be binding and the relation of the majority to the percentage of the eligible electorate who voted. The UK does not have those rules. However, the absence of such regulations does not mean that a referendum must be automatically enacted regardless of the consequences and the size of the majority.

If the outcome is detrimental to the collective good - and in this case it is demonstrably contrary to the national interest - and leads to undemocratic outcomes, it follows that the argument of majoritarianism does not in itself hold up as the only criterion of legitimacy.

The risks to the unity of the UK are all examples of how the national interest is not served by the outcome:

  • the massive reduction of pension trusts following from economic turmoil;
  • the grave implications for peace in Northern Ireland;
  • the catastrophic outcomes for UK universities.

But not only the national interests; there is also the interests of individuals as individuals: Brexit would deny people of rights that they now enjoy as EU citizens. In other words, the majority decision must be weighed against other factors, and must be subject to checks and balances. While not straightforward, it is also not something that can be side-stepped. The fact that no such rules were given in advance - a serious error on the part of the Government - does not mean that no rules can be applied. In fact, it is all the more reason why rules should now be provided retrospectively.

Much has been said about Brexit as a democratic outcome. Democracy is more complicated than this. Democracy is not simply a matter of a majority ruling. It is one dimension, as in the electoral process. However, democracy is also about the setting limits to what majorities can decide. In the case of the referendum of 23 June there is the problem that the majority is insufficiently large to warrant implementation. If some 634,000 had voted the other way the situation would be reversed. This cannot be a democratic mandate in view of the magnitude of the consequences that are now manifest.

Referenda are blunt instruments that can easily undermine democracy if there are not appropriate checks and balances and mechanisms for establishing consensus. This can happen when there is insufficient debate informing the process and, above all, where the consequences produce undemocratic results. Democracy is also about protecting the misuse of majoritarianism where it has negative consequences for others. This was a strong reason not to hold the referendum in the first instance, since this was a possible outcome and should have been anticipated. Such folly can now be set right.

There are two things to be considered here:

  1. The matter put to referendum and the actual procedure of holding the referendum. The question of Brexit was always unsuitable for a referendum, due to the complexity and ramifications of the issue. Voters are asked to express themselves on a whole range of matters in one single vote. The Leave case was based on several contradictory arguments and false information. The holding of a referendum is appropriate only for singular policy/legislative matters (such as the Irish same-sex marriage referendum) and not on complex societal issues or ones that reverse the status quo in ways have major negative implications for many people. The referendum was not set up in a way that maximised public deliberation with due inclusion of expert and political opinions and as a consequence these considerations were not taken into account.
  2. The referendum is not in itself binding for another reason. It requires parliamentary debate and approval. A peculiarity of the British political system since 1688 is the sovereignty of Westminster (rather in the people, as in the political traditions shaped by modern republicanism). The UK is a representative democracy in which Parliament is sovereign and it follows that Parliament should ratify the outcome. The magnitude of the proposed Brexit cannot be left to the Prime Minister's royal prerogative to trigger.

However, I the main issue is democratic legitimacy. In the face of a grave economic crisis and what now has all the signs of a crisis of governability, it is vital that parliament debates and votes on the outcome of the referendum on the grounds that its unanticipated consequences being detrimental to the national interest.

The first act of sovereignty must be to regain control of the democratic process from this movement and their few supporters in parliament in order that four decades of progress will not be reversed.

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