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An EU Referendum Would Be Unconstitutional and Undemocratic

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A constitutional law perspective on Nick v Nigel

By now tens of thousands of words have been written about the Nick Clegg vs Nigel Farage debates but I think you can sum them up in just three: They were rubbish. While no one was expecting either man to be an Obama (or even a Romney) we deserved a higher standard than what was essentially a playground spat. The sheer absence of analysis, reasoned argument or basic factual accuracy was just embarrassing.

Nowhere was this more true than on the question of a referendum. Most commentators agreed that this was where Farage really scored points arguing "you (meaning the amorphous political/business/academic elite - i.e. anyone who happens to disagree with Farage) don't want a referendum because you're afraid of the 'wrong answer'". They're right, Clegg couldn't answer it. But that's probably because the answer involves engaging with big, complex ideas like constitutional law and democracy. (Incidentally Nigel shouting "all the foreigners are making decisions for us" and Nick shouting back "they'll take more if we leave the EU" doesn't count as an adult debate about democracy).

Contrary to popular belief, we do have a constitution in the UK. It's even written down (mostly). It's just not all written down in one place. In the first instance the referendum debate isn't about giving people a say it's about being true to the constitution. Helpfully, if we are true to our constitution then, in the bigger picture, individuals will have much more of a say than they otherwise would. Our constitution isn't perfect but it has achieved a rare quality in constitutional law: It's mostly right most of the time.

Our constitution vests power in Parliament as the embodiment of the expressed will of the people. Which means Parliament decides. We don't have government by referendum.

Part of the reason for this is practical and part of it is ideological. The pragmatic arguments shouldn't be underestimated. When the average lifespan of a consolidated written constitution is around 17 years, it's often the ability to effectively facilitate the day to day running of a state that defines whether a constitution stands or falls.

Switzerland can have government by referendum because it has eight million people. That makes it smaller than London. If the UK were to attempt to govern by referendum we would have to facilitate regular polls of 64 million. This is hard. National elections in the UK require schools to close, business to be disrupted, massive political organisation and hundreds of thousands of paid employees and volunteers to make sure that your cross in a box actually gets counted.

"But wait!" I hear you say, "we only want a referendum on this one question." But that would be profoundly undemocratic. Fewer than 20% of people rank Europe as their most pressing concern according to YouGov. IPSOS Mori doesn't even register Europe in the top 10. How democratic is it to have a referendum on an issue which so few of us really care about?

Surely if we are going to start having referendums in Britain we should begin with the issues which matter most to most people (that's the economy by the way). To put Europe to the top of the priority list because a party which supported by fewer than 17% of the electorate and with no seats in the House of Commons demands it is anti democratic. It's demagoguery and Nigel Farage does not deserve to be a demagogue.

"We actually have to make this thing work" isn't quite such sexy rhetoric as Farage's call to "join the people's army" (although when you're a private school educated banker misquoting Mao isn't inspiring; it's embarrassing). But it does face up to the reality of the situation. It also ensures a more democratic country.

That's not to say that Britain doesn't face a democratic deficit. We do. But party funding, media monopolies, the Coalition's progressive stripping of powers from local government, dysfunctional markets, lack of access to justice, free expression and judicial review are all issues which would make a much greater difference than referenda.

If Nigel Farage really cared about democracy he'd be asking why his own party has pretensions of national impact yet relies on funding from a handful of plutocrats. The tricky thing about questions of democracy Nigel, is that they must be asked equally of all of us.

This article is cross posted on Labour Uncut

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