Over at the FT the other day I did a post about mandates and sovereignty. Many people seemed to find the points in it interesting, and so (outside of the paywall) I will set out here in more detail the argument I made there about mandates.
The proposition I advance is in essence:
a mandate can be either democratic or irreversible, but it cannot be both.
The argument in support of this proposition goes as follows:
1. To say a referendum result provides a mandate for an issue once and for all is to say it is irreversible.
2. The position in (1) contrasts with mandates from general elections. Usually in UK politics, the result of a general election does not mandate any MP to vote for anything. The only real constitutional effect of a mandate from a general elections is that, by convention, any mandated measure cannot be blocked or delayed by the House of Lords (the “Salisbury doctrine”).
(Something is said to be mandated from a general election if it is set out in the manifesto of a party which obtains an overall majority.)
3. Following from (2): (a) opposition MPs can vote against measures in the winning party’s manifesto, (b) no government is obliged to follow its own manifesto (and often does not), and (c) in certain circumstances, a government can abandon and reverse policies where there is a mandate without waiting for a general election.
(A classic illustration of (c) is the poll tax, for which a Conservative government had a detailed mandate from the 1987 general election. Few sensible people, if any, would have argued that the Tories were bound to keep this tax in 1990 because of “democracy” when it came to be seen widely as wrong in principle and unworkable in practice.)
4. Following from (2) and (3), mandates in UK politics are usually reversible, if they are followed at all.
5. In any case, anything “mandated” by a general election result will always (and logically) be reversible at another election.
(In the case of (3)(c), there would not even be the wait for a general election. For example, nobody in 1990 was saying about the poll tax: “let’s wait for the next general election for a mandate for something else”. The policy was rightly ditched mid-parliament.)
6. Following from (2), (3), (4) and (5) if a policy is (a) wrong in principle and (b) unworkable in practice then it is difficult to see how any perceived mandate from a general election can override that.
7. Mandates also can come from referendums. The questions to now ask are: What should be the position with mandates from referendums? Should such mandates have an irreversible quality which a mandate from a general election does not? And if it has an irreversible quality, would such a mandate still be “democratic”?
8. In respect of whether such a mandate would be democratic, one can apply the famous tests of Tony Benn. He suggested five tests for anyone with power: What power have you got? Where did you get it from? In whose interests do you use it? To whom are you accountable? How do we get rid of you?
9. It is the last one that is problematic about referendum results, and prompts the following questions: How do you reverse a referendum result? Can an electorate at one point in time bind all future electorates in a way that no parliament could ever do? Why should a majority at point A have more inherent power than an electorate at point B? These questions all point to one plausible answer: to say a referendum result is mandatory for all time and not reversible in any circumstances is to rob future electorates of their power.
(As a side note, no Brexiteer – rightly – seems to believe that the UK was bound for all time by the 1975 referendum result.)
10. If the position at (9) is valid, then for a referendum mandate to be democratic, it must be capable of being revisited (either to affirm it or reverse it), else it cannot be democratic. One electorate would have dictated a measure to all future electorates.
11. If the position at (10) is valid, this is not to suggest a second referendum (see my post here – my view is that any such decision in a parliamentary democracy should be made, well, by parliament). Instead, if the position at (10) is valid then it means that referendum results (or anything else) should not be given the status of an absolute mandate in a democracy, for to do so would thereafter render that polity as undemocratic. This is because something will have been done that cannot be undone, whether by voters directly or through parliament.
12. And so on the basis of the positions above, a mandate – whether by means of a general election or a referendum – can be either democratic or irreversible, but it cannot be both.
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