There are five fundamental points that have to be repeated without cease until the folly of ‘Brexit’ is reversed and the United Kingdom’s membership of the European Union is reaffirmed. Each point is obvious to Remainers, and has been clearly stated and restated already: but the point is to keep stating them all until everyone – but especially our parliamentarians – is repeating them in his or her sleep.
The first is that the June 23 referendum was not a democratically binding decision on EU membership. It was held under the terms of the (poorly drafted) 2015 Referendum Act as an explicitly advisory referendum – a test of opinion – only. The fact that a number of MPs regard the decision as binding is astonishing for a number of reasons, but the first of them is that not only was the exercise intended as advisory, it is also obvious from a consideration of the numbers involved that it provides no mandate for the UK government to take the country out of the EU. For: 51.9% of those who voted, in a turnout of 72%, represents 37% of the electorate, and less than a third of the UK population. Let us leave aside the fact that in all other mature democracies a referendum considered as having mandating status would require a supermajority – typically a two-thirds majority – and ask whether a Remain vote of that size would have put an end to Leave aspirations. We know from the record that it would not; Nigel Farage of UKIP publicly committed himself to regarding so small a majority of those voting as by no means settling the matter. As that correctly suggests, the referendum result is in no way a mandate.
The second point follows. Prior to the referendum it was known that 76% of MPs and 85% of members of the House of Lords were in favour of remaining in the EU. This was presumably because they thought the best interests of the UK are served by so remaining. Given this, given the extremely important fact of parliamentary sovereignty, and given the advisory-only nature of the referendum, it is an open and shut case that if members of parliament are to act in the best interests of the whole country and its future as they say they see it, it is clear that they should determine that the UK is to remain in the EU.
Of course the various and often contradictory reasons motivating different groups on the Leave side of the equation should be studied and addressed, but not by accepting Leave’s own ‘solution’ to those various concerns, viz. the inchoate and plan-less abandonment of EU membership.
The third point is that this is not only the logic of the majority view of parliamentarians in both Houses, nor that it is in the obvious best interests of the country, as those parliamentarians themselves think, but more: it is their democratic duty and responsibility to reaffirm continuation of the UK’s EU membership because they so think. They subvert our representative democracy and our constitution if they choose to treat an advisory referendum as usurping their duty and the sovereignty and duty of the parliament in which they serve. There is a powerful justification for this claim, as follows.
A representative democracy has two fundamental features: First, those elected to serve in parliament are representatives, not delegates; they are sent to think, examine, debate and decide on behalf of their constituents, and they have plenipotentiary powers to do so. Representative democracy is structured to ensure that decisions on complex and consequential matters are not arrived at in uninformed, hasty, emotional and populist ways, such as you expect from a referendum on a simple yes-no question. A representative democracy is precisely not a ‘direct democracy’ because the latter is too likely to behave as an ochlocracy.
Second, MPs and the decisions they reach are recallable. This is of the essence of democracy. It is this that constitutes the electorate’s continuing control of the democratic process. At the next election, if an MP has not done well in the eyes of his or her constituents, or if the government has not done well in the eyes of a plurality of the electorate, they can be replaced at the ballot box. They have given explicit undertakings on policy and legislation, and can be held to account for the outcomes. Elections are held periodically, at no greater interval than five years. The time frame and the recall principle are essential to the democratic process.
A referendum is utterly different. It is not recallable, at least within a generation. What follows a referendum is therefore not under the democratic control of the electorate. It is a one-off throw of the dice. This is exactly why, even in the poorly-drafted 2015 Referendum Act, the reservation was made that the outcome would be advisory only.
The final decision belongs to parliament. If it resigns its power to decide, yielding it to a mistaken view about a ‘mandate’ having been given by the June 23 referendum, it would be failing in a serious and historical duty.
The fourth is that the extended period of uncertainty which faces the UK given that no-one had any idea of the consequences, complexities, timescale and impacts of Brexit, is already damaging the economy, with great risks to the financial and services sectors, manufacturing, and specialist sectors such as higher education and scientific research and development. A responsible government would seek to remedy this. Knowing the view of both Houses of Parliament and of almost all expert opinion in the country, it has it entirely within its competence to state that, as the referendum was a test of opinion only, it is not minded to take the UK out of the EU, and that it therefore affirms the UK’s continuing membership of the EU.
The fifth is that in examining the circumstances of the referendum, the government and Parliament should take very seriously the following considerations. Those who (like the majority of Parliamentarians themselves) were for Remain had a clear idea of why they were so: the facts, the realities, are open to view. However imperfect the EU, however much a work in progress it is, membership allows contribution to that work in progress, and the fact that the UK is affected by the EU whether it is in it or out of it makes it plainly rational to be in it and so to continue to influence it.
This point leaves aside the very many and palpable benefits of membership, and the importance of continued membership to the future of the UK. But those who were for Leave had many and various reasons for taking their view, reasons that are contradictory and paradoxical. There was no single, informed, worked-out and prepared view; there was mere demagoguery and sentiment, and alas much of that sentiment was xenophobic verging on racist.
The Leave campaign left a great deal to be desired in the way of honesty and probity, and the distorting influence of 40 years’ worth of hostility to the EU on the part of the tabloid press, are material matters.
Added to this, the small Leave majority was achieved by English voters, thus placing many constituencies – Scots, Ulster, Gibraltarians, to say nothing of the younger and more educated demographic everywhere in the UK that championed Remain – in the position of having to argue the rational case against a non-rational one. And as everyone knows it is a challenge to reason people out of views that they were not reasoned into.
The poor drafting of the 2015 Referendum Act is a material factor likewise. If there was any risk of it being misunderstood that it was advisory only, a supermajority should have been stipulated. For a massively consequential constitutional change such as Brexit involves, nothing less than a two-thirds majority should be mandatory. The voting age should have been 16, since the younger generations are the most affected. British ex-pats should not have been disenfranchised on the grounds that they had lived abroad for longer than a certain period: that is an assault on their right as nationals. As it was indeed an advisory referendum, there should have been a variety of questions exploring whether further discussion with the EU on key issues would have satisfied some concerns about the nature of membership. In short, the simplistic ‘in-out’ question and the restricted nature of the permitted constituency represent major problems.
It is precisely the point of representative democracy that it exists, and is so structured, to take these considerations into account, to apportion proper weightings to them, to see the bigger picture – and to decide accordingly. It is without question that judiciousness of this kind would conclude that an affirmation of the UK’s continued membership of the EU is both right and necessary.
Professor Anthony Grayling, is a philosopher and Master of New College of the Humanities
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