What kind of democracy?

By the editor, Sep 26 2019 04:00PM

Imagine that the Conservative Government had decided to campaign for Leave in the 2016 Referendum, and imagine also that the Liberal Democrats and the Labour Party had voted against calling the referendum in the first place, and campaigned for Remain. Imagine that the vote had gone exactly the same way: a 52:48 win for Leave.

It’s not fanciful in that scenario to imagine that we’d still be in the EU, following years of disagreement over what sort of exit should be pursued. David Cameron would have issued a notification under Article 50 (despite votes against by the opposition parties), and secured a withdrawal agreement very similar to Theresa May’s, which had been opposed by many in his own party. He might well have called an election at some point to strengthen his hand, only to find that he had weakened it. He might well have been toppled by a more avowedly hard-line Leaver from within his party, like Mr Johnson.

If all that had happened, and if either the Liberal Democrats or the Labour Party were now suggesting a policy of revoking Article 50, what would the reaction have been?

I doubt there would have been very many commentators claiming that such a policy was anti-democratic, unconstitutional, unprincipled, or extremist – as they are now. After all, these parties were clearly against the referendum in the first place, and campaigned against leaving. The referendum was legally advisory only, even though the Government committed to implementing the result - no one else did. The referendum and the implementation of the result would have been seen as “owned” by the Conservative Government (or both Governments, assuming the intervening general election). The fact that the Government had won the vote, but failed to implement the result after several years, would lay them open to the charge that they’d had their chance, and blown it – and it would now be entirely fair for other parties to propose cancelling the process entirely, following a new general election, which could give a new Government in a new Parliament a mandate to that effect.

What then is the difference between this scenario and the current situation that causes many people, including Remainers, to denounce the revoke position as anti-democratic, unconstitutional, unprincipled, or extremist?

I think the difference is that a referendum called and won by a Government, and opposed from the outset by opposition parties, would have been seen as having a much more limited mandate. It would have fitted more comfortably into our system of parliamentary democracy. If the Government had failed to implement the result by the time the next general election had occurred, the electorate could have chosen to give that party another chance to implement it, or chosen to give another party a chance to implement it in a different way, or voted for one of the opposition parties that would call a halt to it – and that would have seemed to be “business as usual” politically.

The 2016 Referendum, by contrast, is seen as having in some way transcended the normal constraints of parliamentary democracy. This is, I think, at least partly because the opposition parties agreed to the referendum being held, and initially agreed to abide by the result, even though it wasn’t legally binding. It isn’t considered as something wholly “owned” by the Conservatives.

The Labour Party and the Liberal Democrats were mistaken in supporting the referendum, and MPs in those parties who agreed that the result must be implemented, and voted for the Article 50 process to be initiated in March 2017, were mistaken too. But we all make mistakes, and learning to admit and correct them is a part of growing up – and ought to be an accepted feature of a mature democracy. MPs and parties can change their minds, and ought to do so if they become aware of facts that warrant it. Parliament is able to undo laws made by a previous one. That is a fundamental feature of parliamentary sovereignty, and there is nothing undemocratic about this: indeed it could be said that a prohibition on changing course is in itself intrinsically undemocratic.

I don’t wish here to minimise the enormous political difficulties of revocation, or the extent of the resentment that it would cause. What I am saying is that there is nothing constitutionally improper about it. The political difficulties have come about because of the particular nature of this referendum, and the way the political parties handled it at the time.

For those who think that the 2016 referendum has transcended parliamentary democracy, and consider that, as a matter of constitutional principle, either the referendum must be implemented, come what may, or requires another referendum to reverse it, then I think they need to answer some further questions. Firstly, what constitutional principle is being relied on to override the long-established principle of parliamentary sovereignty? Secondly, why is the 1975 referendum not respected in the same way – or, if it is, what constitutional principle allowed that referendum to be overturned, and how should that principle apply regarding this referendum? Thirdly, what is to stop Governments using other referendums in the future as a means of significantly diminishing or even destroying parliamentary democracy, as has happened in authoritarian regimes in the past?

Perhaps a lot of people simply don’t care. The mood of ugliness that has developed recently, which is being channelled by the Government - open contempt for the law, hints of violence, and appeals to the “will of the people” - signifies that parliamentary democracy is under threat, and sickening.

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