The problems with referendums in general, and the Brexit one in particular

17th June 2016

 

There are two problems with the current EU referendum.

 

Why this referendum was a bad idea

The first problem comes from there never having been a need – in an objective sense – for this EU referendum.

By “objective” I mean that there was no external reason – such as a new EU treaty or similar proposal – for a referendum to take place in June 2016.

As such, it can be described an objectively pointless referendum.

(The practical reason for this objective was, of course, political: it was a quick fix by the prime minister to a political problem caused by his own party and the (then) rise of UKIP.  And in launching this needless and divisive referendum campaign as a quick political fix, David Cameron showed all the political judgement of Cersei Lannister.)

This referendum is also not legally binding.  It is advisory.  There is no legal obligation on the government to do anything in response.  The all-important notification under Article 50 is in the gift of the government, and the government can make that notification at a time of its choosing, or never at all.

It is therefore an objectively pointless referendum with no direct legal consequences.  Twice as pointless, in a way, if a thing can logically be as twice as pointless.

And so, as the referendum was about no proposal in particular, the campaigns became about everything and nothing.   There was never any real focus.   And without focus, the campaigns became strident and unpleasant.

This leads us, like Prufrock, to an overwhelming question.

This is a referendum without any objective reason or focus, such as a new EU treaty or other proposal.

It is not legally binding.

So: why?

 

Why referendums are generally a bad idea

The second problem is about referendums in general.

When you have a parliamentary system, you either take the parliamentary system seriously or you don’t.

And having referendums means you are not taking a parliamentary system seriously.

And if the supposed reason for the referendum is to protect parliamentary democracy, this does not even make any sense.  You cannot sensibly protect parliamentary democracy by the extra-parliamentary means of a referendum.  It is an absurdity, if you think about it.

Referendums are rare in UK political history. Before 1975, there had been none at all.

Issues as fundamental as making war and peace, decolonisation, the welfare state, the abolition of capital punishment, the legalization of homosexuality – huge issues, time after time – were all dealt with without a referendum.

Even fundamental constitutional issues before 1975 were dealt with without referendums – such as royal abdications, measures limiting the powers of the Crown and the Lords, and all the extensions of the franchise.

There is, of course, one good counter-argument: see Scotland and devolution, and the Good Friday Agreement.  The referendums on these certainly dealt with fundamental constitutional issues – but, unlike this EU referendum – there were concrete, discrete proposals put before the voters to vote on.

 

Not again?

Let’s not have a referendum again, on anything, unless (a) it is a fundamental constitutional issue and (b) there is an actual proposal for fundamental change for people to consider and to vote on.

Ongoing UK membership after 40-odd years of one international organization when there is not any proposed significant change in the offing does not meet these criteria. (A vote on the Maastricht or Lisbon treaties may have done, but certainly not this June 2016 one.)

A referendum should never be a casual fix to a party political problem.

So here’s a radical suggestion: let’s return to being a parliamentary democracy.

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26 thoughts on “The problems with referendums in general, and the Brexit one in particular”

  1. In fairness regarding point one: the desire for a referendum (& the growth of UKIP/Euroscepticism) really started to boom off the back of the Lisbon Treaty, which the UK signed without a public vote. So it’s fair to say, IMO, that the referendum is a delayed, yet direct, result of a significant treaty change.

    On the second point, for such a major issue, it is not fair to make it without the referendum. There are many, like myself, who would never vote UKIP (I have no issue with immigration); however I also want to leave. I would gladly exchange free trade for free movement of workers. I am opposed to restrictive trade policies against the rest of the world, which essentially leave us wide open to volatility within the Eurozone and reliant on its prosperity for our own. I also don’t like excessive numbers of politicians (living in Scotland I already have two different parliaments with a combined 779 politicians making laws for me. Not to mention councils). However I vote for a particular political party based on many of their policies, not just EU stance. So we couldn’t somehow have a general election & parliamentary democracy deciding the future of the UK in the EU. It is referendum worthy.

    Finally, the issue with this campaign has been (much like Scotland’s indyref – I voted no and would do again) that neither side seems to be able to run an honest, open campaign. On one side we have misleading contribution figures (the net contribution is big enough without using the gross) and threats of open borders allowing terrorists to flood in (we’re not in Schengen). On the other, we have predictions of the end of Western Civilisation and predictions of economic destruction larger than the great depression in the 30s & the financial crash in 2008 (I’m not exaggerating, they have predicted a 10% drop in GDP, which is greater than both those occasions). Additionally, they’ve set out predictions for the next 14 years which are based on:

    UK having no free trade with EU; AND
    UK having no free trade with anywhere else; AND
    Ignoring the possibility (likelihood) of another recession within the EU and its impact on UK economy.

    So if we could just have a decent, honest debate for once it would be a hell of a lot better.

    1. The restriction of trade with the rest of the world is an interesting item that often gets raised as an objection to EU membership by those I would consider worthy of engaging with (i.e. those not clamouring about sovereignty, the undemocratic nature of the EU, open borders or gross contribution that could be spent on the NHS, all issues that are easily debunked). So the question I have is, if we’re prevented from making trade deals with the rest of the world, how is it that we made a whole raft of new ones with China last year?

      1. Hi Wolf, put simply we’ve not actually negotiated trade agreements with China – saying we have was lazy journalism.

        Cameron’s negotiations with the Chinese to increase Foreign Direct Investment from China to the UK. This is where a foreign entity invests actual money in buying or opening a business in the UK. In the case of the most recent deals, they bought a controlling interest in a nuclear power plant as well as several smaller investments. As neither a good or service is being traded internationally, such investment is not impacted by tariffs & quotas.

        A good example would be if China had bought a UK car manufacturing plant. The investment for the purchase of the business is tariff free, however if we exported the finished cars they would be subject to tariffs & quotas set by EU.

  2. I don’t see how the Brexit referendum differs significantly from the Scottish independence referendum, according to your criteria.

  3. I understand the uncomfortable fit of referendums with a parliamentary democracy. But it’s important to put against that the degree of engagement they can engender. Both this and the Scottish referendum have got a whole lot of people talking about politics who usually ignore it.

  4. This would be great, if the parties standing for parliament offered enough diversity of policies to make voting representative. The trouble is, only one party – UKIP – offered any anti-EU option, and they didn’t have enough MPs standing to form a government even if everybody had voted for them.

    I agree that if we have a functioning parliamentary democracy, referendums should be rare. But currently we don’t have one. We have, instead, an unpleasant mix of EU autocracy, unrepresentative political parties, and enough corruption that the citizenry is losing interest.

    Hopefully if we leave this can be fixed, but it will take time and effort. Our problems as a democracy go beyond the EU, but that is the first hurdle to cross.

  5. Surely the “objective need” for a referendum is proved by the fact that 50-ish percent think we should leave the EU, new treaties or not. With Conservative, Labour, Lib Dem, SNP and Green parties supporting membership, there is no other democratic way for that 50% to have its support tested.

  6. There are quite a lot of issues that can be raised about this blog.

    The first is the statement that there is a problem with this referendum because it isn’t legally binding on government, to which the response must surely be why? Yes, legally speaking, it’s essentially no more than a rather large opinion poll, and it creates a political, rather than legal, imperative but it does preserve parliamentary supremacy. If politicians do decide to override it, the consequences will play out through the democratic system. Many countries have systems of non-binding referendums.

    Then there’s the implication that the referendum itself is divisive when, from the evidence we have, it was already a divisive issue, often within parties, but also within the country (why is there such a substantial UKIP vote – essentially a single-issue party).

    There’s also the statement that referendums should only be held on constitutional matters, with the implication that EU membership does not qualify as such. Given that EU law can, in many areas, over-ride and constrain parliamentary law, then this surely is a constitutional issue. (It’s not as if we’ve got a written constitution to formally define what such an issue might look like).

    There’s also the point made that you either take parliamentary systems seriously or you don’t and holding a referendum means you aren’t. In that case, there are very many countries, like Denmark or Ireland, who don’t take their parliamentary systems seriously. I think that’s simply wrong.

    I think the real reason why many politicians deeply dislike referendums is that they expose national divisions which cross party lines. In a very real sense they lose a lot of their power, and if it turns out that David Cameron has misjudged the national mood, he is surely doomed. The principle that if you vote for the party, you vote for the whole manifesto principle has always struck me as rather suspect and something that suits politicians. In any event, the referendum was in the manifesto and, very possibly, the Conservatives would not have come to power if that wasn’t the case.

    This is not a plea for a Swiss-style system, but just that referendums on fundamental issues are of value in their own right.

  7. This particular referendum may not have a point in the way you describe. But we are owed a referendum for the Lisbon Treaty at the very least, which we were promised but didn’t get.

    So it may have been a fairly incompetent PM’s response to the rise of UKIP and of his own MPs’ disgruntlement that gave rise to this referendum (which it is obvious that the PM didn’t think he would actually have to deliver). Referenda, in this time of the distancing of their political elite from the actual voters in our so-called “representative democracy” is proving that democracy to be a chimera, and the need for a referendum, if not several more in the future.

    Perhaps it would be more appropriate to view it as a well-overdue referendum

  8. Yes, if our parliamentary democracy worked. It doesn’t though when 24% of eligible voters suffice to impose a party happy, while the country remains in financial straits, to enrich further those already rich and often avoiding tax, yet ruin the lives of the vulnerable at every conceivable opportunity. As our system’s broken, expect more referenda..!

  9. There is a definitional issue in the second, general point (In would by and large agree with the specific points made in the particularised first point). A parliamentary system and a referendum are not opposed. I live and practice in a Common Law parliamentary democracy, where votes of this kind are far from uncommon when Constitutional amendments, usually for European treaties, are required. In my own case, I have, since 1992, voted on 24 different referendum proposals, yet it remains a parliamentary system (albeit one where issues are more often shrugged off to the Courts than to the vote). There may very well be a clash with a system of parliamentary sovereignty, where a parliament acts unfettered by a written Constitution as it is bound in Ireland; but that is a subset of the general. Others have no problem with using a referendum in parliamentary systems. That argues that it is in the particular accidents of that subset that has problems, rather than in the nature of a referendum itself, that the issues lie.

    I have seen many referendum campaigns, voted on many, canvassed in some. Some have been fraught, as on abortion, some have been in the nature of going through on the nod, as with the Good Friday Agreement. Some have approached a celebration against those trying to drag the campaign downwards, as in the single-sex marriage referendum campaign. None have approached the terrifying levels of vitriol, of open hate, visible in this referendum. I do not and would not suggest this is due to some inherent grace of this polity, that we are a soggy Socratic Athens, but there are differences that may go to explaining this.

    First, there is a strong Referendum Commission, chaired by a serving High Court judge or retired Supreme Court judge, that sets out the issues on the vote, prepares information on this, and sends it out to all voters. This neutral arbiter means that a campaign trying to make unsupportable claims that the vote is about something else will have truly neutral, authoritative information in the hands of voters showing them up. In and of itself, this is a powerful restraint on excess; it will be wasted effort to try to go too far when one remains tethered by the Referendum Commission information.

    Second, the statutory and Constitutional provisions mean that there are clear, defined rules, to which all have become accustomed, and respect for those (and while politicians may not be respected, the Constitution is) ensure that anyone going past those bounds can be shown to have gone past them, with all the consequences of that.

    Thirdly, the conduct of this particular campaign itself. There is a strange tendency to use the passive tense about this referendum campaign; “it has become”, “it has gone”. This is to take the trope of politician as spineless, and extend it to the point where a campaign become something like a Portuguese Man’o’War, an aggregation formed into a mindless creature blown hither and yon by winds over which neither it, nor that comprising it, has control. The effect of this, of course, is that the wounds, the agony caused by the stings trailing far behind this hapless creature are accidents, for which no-one is responsible.

    To suggest career politicians, intelligent men with a nose for power, are so passive as this is to give them a fool’s pardon they cannot hope for. The campaign has not “gone”; say rather – it has been made.

    This campaign has been made into a vote on immigration. It has been consciously so made; Farage was demanding this happen. There was a choice to make that the primary issue, and it was a option willingly taken, one that could have been rejected. That was not due to it being a referendum, it was due to the people who made that political choice, for which they are responsible. This was their chance to win, either for their obsession, or for power, and when given an option for victory that would break the bounds of decency on which an unwritten constitution uniquely depends, they chose, freely, to break those bounds. Everything stems from that choice. A referendum campaign is merely a vehicle, and will go where it is steered. When a decision is taken to go down the anti-immigrant road, a crash is inevitable, no matter what vehicle – parliament or referendum – is so steered. The problem is not the vehicle, but the choice.

    That choice was made, freely made, and has polluted British politics. Whether or not it can be cleansed again, I do not know. But to think that the effects of that choice will not remain in British politics, like a long-term toxin that has built up over many years and now, having reached a certain level, begins to poison, is too fond an imagining. It won’t be cured by going back to a Parliament when those who made that choice will still be there, long after this or any referendum is over.

    1. To describe it as terrifying is, surely, just a little over the top. It’s not as if there are riots on the streets or the threat of civil insurrection. Not much in British politics is terrifying.

      What I would agree with is that the debate has been unedifying and it’s certainly been divisive within parties. However, I really don’t see any evidence on the streets that it’s being taken that way. I see far more raised emotion in the social media where people seem to be quite happy to repeat things about those on the opposing side which I doubt (in most cases) they would say in person.

      One of the reasons for this is surely that British politicians are simply not used to exposing differences of opinion within parties (rather than between parties) in this way. The natural preference is to settle such differences behind the scenes. Famously, British electorates don’t tend to vote for parties which have obvious divisions (although John Major scraped in on his first election as PM despite the undercurrents).

      In reality things will surely settle down. If those who have been making ridiculous overstatements would just work on the basis that the referendum was a clear statement of the people’s wishes and would work within that (at least for decent length of time) it would help. I don’t think the country will fall apart whatever way the decision goes, and if some politicians have so nailed there colours to the mast that they must fall with the resultant decision, well so be it.

      I should also add that those politicians (including some in the EU) who appear to make threats should the UK leave are probably not doing their case much good. Indeed it may even be counter-productive. Threats often don’t bring out the best in people. What would be a more mature approach is explicit statements that this is a decision for the people and, whatever the result, EU and UK politicians would do whatever will be best for all concerned. That doesn’t mean there won’t be conflicts of interest of course, but that’s what politicians are meant to deal with.

  10. 1. Yes, we don’t need this particular referendum. Cameron called it to try to pacify the backwoods Tories – perhaps hoping that he would be in coalition with the LibDems who “would” block it, or else out of office. Moral; never hold a referendum you can’t win.

    2. No. MPs in the UK are representatives, not delegates. That is, to some extent they can do their own thing – they aren’t obliged to do what we want. Of course, they can act in advance of public opinion on, say, social matters; though in N Ireland politicians seem to try to hold back, Canute-like, any such progress.

    In Ireland there is a written constitution, and this includes the requirement for a referendum to be called if the constitution is to be changed, for example after the Good Friday Agreement.

    In Switzerland, the people are sovereign as any reading of the newspaper will tell you. So, as the (absolute) sovereign power they must vote in a referendum; this isn’t in the power of the parliament or the executive.

  11. I think what was special re the GFA referendum was exactly that many of the people directly concerned did not accept Parliament’s legitimacy. There were few genuine alternatives to a referendum. In the Scottish/Welsh devolution case, I guess the benefit was more about letting the new assemblies set sail with the blessing of the people they would govern.

    Tim O’Connor’s points about the difference it makes when referendums are part of a system with rules and neutral arbiters, rather than just ad-hoccery, are very good (and I guess something similar must be true in Switzerland?) – if we are going to keep having referenda a stronger role for the Electoral Commission might help them be less awful.

    1. There are referendums and ‘popular initiatives’ in Switzerland. A referendum, whether at local, Cantonal or Federal level can be triggered if enough voters sign a petition. Such petitions are often about a future change in policy rather than approving or not a decision of the executive.

      All voters receive a booklet setting out the positions of those proposing the referendum and of the executive (with their recommendations as to approve or deny).

      For example, there was a recent referendum on a ‘national wage’, that is a payment to all Swiss which would take the place of welfare and benefits for some, yet be paid for all. This was defeated, not because the idea was bad, but because it hadn’t been properly costed.

  12. The assertion that “having referendums means you are not taking a parliamentary system seriously” is plainly a silly one. Many people (myself included) are both in favour of holding this referendum *and* take our parliamentary system seriously. Indeed, the proposal was in the 2015 Conservative manifesto. Many decisions taken by the executive are done for party political advantage (a good example being the FTPA).. The 1975 referendum was another example. As Jim Calahan presciently observed in 1970, the referendum idea was “a little rubber life raft into which the whole party may one day have to climb” (http://www.newstatesman.com/politics/2015/01/back-future-britain-s-1975-referendum-europe ). To try and stop this type of decision making strikes me as being a little politically naive.

    You say that “there was a choice to make [immigration] the primary issue”. But this ignores the fact the immigration has been one of the main concerns for UK voters for quite some time now ( http://www.telegraph.co.uk/news/uknews/immigration/11816808/Immigration-is-the-publics-biggest-concern-poll-says.html ). Politicians from all sides may wish this wasn’t the case but that doesn’t deal with the world as it is. One can’t keep ignoring an issue that voters themselves rank as one of such importance. However, that doesn’t mean to say that I’m not appalled by the dog whistle politics of Farage et al. But he doesn’t represent the main vote leave camp, although he certainly does demonstrate how dangerously unpleasant ‘populism’ can prosper when ‘mainstream’ politicians continuously ignore genuine and persistent concerns of the electorate.

  13. Yes indeed, Jack, you’re right. There’s something else too. If they had consulted an astrologer, this date would never have been chosen. The chart for 23rd June is dreadful for a referendum. If you’d asked me, as a political astrologer (which you haven’t), I’d have suggested 1st October, a newmoon – a date which would have given a clearer outcome that is much more connected with emergent reality and leading to outcomes that would be more doable.

  14. We live in a Parliamentary democracy where Parliament is sovereign.

    So if Parliament decides it wants a referendum, it can have one. If Parliament decides to determine legislation by applying to Mystic Meg it can do that too. That’s what Parliamentary sovereignty means.

    You can argue that using referendums, or Mystic Meg, suggests that parliament is not performing its function very well. And I wouldn’t disagree. But it is still sovereign, and a referendum is a much more direct way to find out what a population thinks than by asking a group of whipped members to speak on behalf of them…

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