TCM has argued all along that the key issue in the EU referendum was democracy. We have argued that the EU is a transnational, multilevel governance regime dominated by inter-elite networks through which the governments of its member states evade accountability to their own populations for the decisions they make. This way of governing presides over a void in society where a democratic public life ought to be. Leaving the EU is a precondition for reviving democratic political life in British society. Other issues dominated the evasive campaigns mounted by both the Remain and Leave camps – notably the economy and immigration. The aftermath of the referendum, however, has forced the question of democracy, of who rules and how they rule, to centre stage.
Nowhere is this clearer than in the response of those many Remainers who are seeking by hook or by crook to frustrate or to reverse the referendum result. What is immediately at stake is not economic or migration policy, or even who runs the Conservative or Labour parties, but whether popular sovereignty and democracy still have any meaning in Britain. If the answer is negative, ordinary citizens will be the losers – regardless of how we voted.
While some honourable Remainers have accepted their defeat with dignity, calling for reconciliation and cooperation to ensure that Brexit works in the interests of as many British people as possible, the dominant response in the intellectual wing of the Remain camp has been denial. Denial that Brexit voters have the intelligence, information or basic decency required to determine the country’s future. This is most viciously expressed in rants about ‘old people’, ‘the regions’ and the working classes, who are routinely derided as selfish, idiotic and/or racist. This is anti-democracy pure and simple. It implies that these voters should not have the vote or at least that their votes should not count. If the people are unfit to decide this time then surely they are unfit every time they vote, including in local or national elections. If politicians lied and ‘conned’ the people in the referendum, what’s to stop this happening in every general election? These arguments are not simply opposed to the referendum, but the very principle of elections.
This elitist sentiment is nothing new: it has been used by tyrants and patricians since ancient times to justify the exclusion of the masses from decision making. However today the most militant anti-democrats are not drawn from the traditional ‘conservative’ elites but from what we have been used to calling the ‘left’, those who claim to stand for the interests of the excluded and those disadvantaged by racism and other forms of discrimination and disadvantage. This ‘left’ has no power itself to overturn the referendum. Perhaps for that reason, left-leaning Remainers are investing much of their intellectual energy in devising ways to present the result as non-binding or simply as anti-democratic. Three main attempts stand out, none of which stands up to analysis.
The legal-constitutional case against the referendum
Constitutional lawyers have pointed out that, from a legal point of view, the referendum is only advisory. Parliament is sovereign and any change to UK law, such as repealing the European Communities Act 1972, is a decision for parliament. Legally there is nothing to stop parliament from ignoring the referendum result. Some MPs have already aired this view. According to leading human rights lawyer Geoffrey Robertson QC:
It’s the right of MPs alone to make or break laws, and the peers to block them. So there’s no force whatsoever in the referendum result. It’s entirely for MPs to decide.
No ‘force’ in the referendum result? Robertson, being a lawyer, may be suggesting there is no legal or constitutional force. But surely it has political force. Parliament asked the people to vote in a referendum, voters did that and the majority decided to leave the EU. If Britain is a democracy then you might think MPs are bound to carry out the mandate they themselves asked for. Not according to Robertson: ‘Democracy in Britain doesn’t mean majority rule. It’s not the tyranny of the majority or the tyranny of the mob….’ On the contrary, if a bill was brought before parliament to enact British withdrawal from the EU: ‘MPs are entitled to vote against it and are bound to vote against it, if they think [that is] in Britain’s best interest.’ In other words, it would be tyranny for parliament to concede to the will of the majority on Brexit simply because that was the will of the majority, even when that will was expressed in a fair, secret ballot after an open political debate.
This neatly encapsulates the technocratic view of government held by many of the EU’s supporters. Democracy in their view is when the people do what the majority of their intellectual betters tell them to do. When the people don’t do that, it’s mob rule. What is denied here is popular sovereignty: the idea that in the final analysis the authority of the state is created and sustained by the consent of the people over whom it rules. Where the EU presides over a void between the rulers and the ruled, legal experts now advise that this void should be converted into a naked opposition between rulers and ruled.
The legislation calling for the referendum passed by 544 votes to 53 (only the SNP was against). At that time, all parties agreed that the referendum was legitimate and agreed to respect the outcome. If parliament now rejected the outcome, it would be rejecting its own authority in a political betrayal of epic proportions. And it is no answer to this to say, after the referendum, that the constitution ought to require supermajorities for constitutional changes like this to be decided by referendum. Perhaps it should, but that was not the basis on which this referendum was called. Parliament itself called for the referendum to decide the question on a simple majority, and the result delivered the largest popular mandate in British electoral history. Parliament could only reject the result on legal grounds but in doing so it would base its authority on something other than the will of the people.
Ignoring the referendum to save the United Kingdom
A more subtle approach is to use the devolution settlement as a form of political blackmail against a Tory government. The claim is that the United Kingdom is now a ‘family of nations’. Looked at from that point of view, the referendum result was not 52:48 but 2:2. England and Wales voted to Leave, Scotland and Northern Ireland to Remain. Given the constitutional reality of devolution, any attempt by Westminster to act on the referendum result would therefore legitimise breakaway votes in the two nations that voted to remain: an independence referendum in Scotland and a referendum on Irish unity in Northern Ireland. A Tory government that moved on Brexit would therefore be vulnerable to the charge that it was breaking up the United Kingdom, and this might be an effective argument for Tory MPs to use to ignore the advisory referendum result.
On this more subtle argument against popular sovereignty, the small minority of British voters who are Scottish and Irish are being deployed to frustrate the will of the majority of the whole nation. Although it apparently prioritizes the survival of the Union, it is really subversive of the Union’s political meaning. Acting on this approach would only show that United Kingdom is not a political union of its peoples. Indeed it would turn the UK itself into a transnational, multilevel governance regime not unlike the EU that the British people just rejected.
The chief practical problem for this approach is that the SNP’s threat to the Union looks less credible in the context of Brexit than it did at the time of the last referendum. If the SNP is forced to negotiate Scottish re-entry into the EU after Brexit, as EU leaders appear to be making clear that it must, it will very likely be forced to accept the Euro as a condition of entry and there is no enthusiasm for that in Scotland.
The call for a second referendum
A third and more plausible means to frustrate the referendum result is the call for a second referendum on the outcome of the Brexit negotiations. The second referendum technique has already been deployed in Ireland to reverse the Irish electorate’s rejection of the Lisbon Treaty in 2008. Some 4 million frustrated Remainers have signed a petition asking parliament to ignore the Brexit vote. Although there is obviously only minority support for it, this proposal takes advantage of the time it will take for Brexit negotiations to take place, of the complexity of the negotiations and of the likelihood of new events in Europe shifting the position of the other member states. The outcome of any eventual negotiations can be presented as a whole new set of questions requiring a new vote. The second referendum relies on the elite’s control of the process to wear down popular hostility and present remaining in the EU, in one form or another, as inevitable. Crucially this route avoids any outright denial of popular sovereignty, and this has been the preferred method of European governance all along.
The manoeuvering required to frustrate the first referendum has begun. Cameron reneged on his promise to invoke Article 50 of the Lisbon Treaty immediately, Theresa May has said she is not in a hurry to do it, unnamed business interests have already begun legal action to try to prevent any prime minister doing so without new legislation. Nothing is certain in the politics of Brexit because the unexpected result has caused an unprecedented political crisis in Britain, at a moment of great stress in the EU more generally. Nevertheless, the can of political decay in the relations of government to the governed is already being kicked down the road again in classic Euro-style.
The most important advantage of the second referendum route for those who would frustrate the popular will is the absence of any significant organised political force with a deep commitment to popular sovereignty. If government and parliament take their time over the negotiations and hope that events in Europe turn something up that changes EU arrangements in a way that they can sign up to, then they will be relying on the fact that their manoeuvres against popular sovereignty will go largely unchallenged. The Tory Eurosceptics have had their day. As we pointed out before the referendum, they were nostalgic ideologues with no idea of what the true problem was, and therefore vulnerable to the antics of an opportunist like Boris Johnson. UKIP will no doubt make some hay with this evasion of the popular will. But UKIPs opportunism weakens their political position. UKIP’s focus is on immigration because they think it wins them votes, but controlling immigration has no intrinsic democratic content and allows them to be outmanoeuvred by changes in policy. That should present few problems for Theresa May, a pragmatist with an instinct for ruling, in the classical mode of Tory prime ministers. The populist right has no real interest in filling the void in democratic public life in Britain, and that creates space for Westminster to try to paper over it once again.
Democracy versus its enemies
The only way to ensure that government remains accountable to the people, and that the state does not continue on its gradual decay towards real tyranny, is to defend the will of the majority as the ultimate source of political authority. We need to move past the binary of Brexit-Remain; the real dividing line is urgently becoming that between democracy and its enemies. The only way to defend democracy and ensure the elite is compelled to respect the principle of popular sovereignty is to force the government to invoke Article 50 without delay. Otherwise, not only will elites be continually tempted to neutralise Brexit, democracy itself will suffer.
Democracy only functions if we accept that sometimes we will lose, and our opponents will succeed. Democracy reassures us that losing will not be a permanent condition; we can rally support and try to win next time – which relies, in turn, on our opponents being willing to accept their defeat. Without that acceptance, democratic governance collapses into a no-holds-barred power struggle. The only groups empowered in such a struggle are the elites who control the power, resources and institutions necessary to participate in it. This is where real tyrannies come from.
Remain voters should realise that the silver lining of their defeat is that the result will be a gain for accountable, democratic governance, which empowers all British citizens, including themselves, to play a bigger part in the country’s future. British political leaders will no longer be able to make policy and laws in secret with their European counterparts, then present them as faits accomplis, hiding behind EU institutions to avoid having to justify themselves.
Above all, if democracy is to survive in Europe, we need a political outlook that puts the cause of popular sovereignty at its heart.