The EU referendum and some paradoxes of democratic legitimacy

In Britain, Parliamentary Sovereignty is the governing norm of the constitution: it would seem to follow that a Parliamentary majority can always overturn a referendum result. The reality, at least in the particular circumstances of the EU referendum, is less clear-cut:

• The referendum result will be implemented, effectively irrevocably, if Britain invokes Article 50 of the Treaty on European Union. It may be that the Prime Minister can do this without consulting Parliament. If that is so, it can be argued that we now have a new constitutional principle under which, at least in particular cases, popular sovereignty as expressed in a referendum trumps Parliamentary Sovereignty.
• On the other hand, if the invocation of Article 50 does require legislation, we should ask under what circumstances, and by what arguments, MPs can overturn the directly expressed views of the electorate without severely damaging the democratic legitimacy of Parliament itself.

The problem of competing legitimacies does not apply equally to all types of referendum. It is sometimes asserted that, because of the principle of Parliamentary Sovereignty, all referendums in the UK are advisory only. That is misleading. The AV referendum of 2011 sought popular endorsement for an AV voting system for which Parliament had already legislated in the Parliamentary Voting and Constituencies Act 2011. If the referendum result had been in favour of AV, the new voting system would have been introduced without further recourse to Parliament. Parliament could of course have legislated subsequently to repeal or amend the Act, but a post-legislative referendum of this type cannot properly be described as advisory.  Such a referendum may be held to lack legitimacy because turnout is very low, or the margin of victory very narrow, but there is no conflict of democratic legitimacies because MPs have determined in advance the exact legal consequences of both possible referendum results.

By contrast, advisory referendums such as last month’s EU referendum and the 2014 referendum on Scottish independence are by their nature capable of generating irresolvable paradoxes of legitimacy in the event of a vote against the status quo.

In these circumstances, those who voted with the majority will understandably assume that, while the referendum may have been merely advisory in law, Government or Parliament will nonetheless act to implement the ‘will of the people’.

Despite this, politicians may legitimately take the view that a referendum won by a very narrow margin is an insufficient mandate to change the status quo on an issue of major constitutional importance.  In the aftermath of the EU referendum, the great majority of politicians have expressed the view that a 51.9 per cent vote for Brexit should be accepted as decisive. That is understandable: a significant part of the Leave vote represented a generalised protest against the political elite, and it would be unwise for that elite to reject the outcome too readily.  However nor would it be surprising if this consensus begins to erode over the coming months. (It is also interesting to speculate whether the same consensus would exist today if Leave had won with – say – 50.5 per cent of the vote.)

The problem of legitimacy is compounded in referendums about sovereignty because the consequences of the two possible outcomes are not symmetrical.  A ‘Leave’ vote, if implemented, is effectively irreversible: a ‘Remain’ vote leaves open the possibility of future referendums on the same issue. For this reason, many constitutional commentators believe that sovereignty referendums should require some form of super-majority – 60 per cent of votes cast is the threshold most commonly suggested – to overturn the status quo.  The legislation which provided for the 1979 referendum on Scottish devolution set a threshold for implementation of 40 per cent of the registered electorate, a deliberately high hurdle which was not achieved. To date, all advisory referendums in the UK have been winnable by simple majority.

In retrospect, it might seem sensible from a constitutional perspective to have applied threshold provisions in both the Scottish independence and EU referendums. However from David Cameron’s point of view that would have jeopardised their political purpose, which was to neuter demands for independence and Brexit respectively.

There is then the topical question of whom the electorate was ‘advising’ in the referendum: the Prime Minister and his Government, or Parliament? Before polling day, in so far as the matter was considered at all, it was generally assumed that in the event of a Leave vote the Prime Minister would in due course use his prerogative power to invoke Article 50 without consulting Parliament. That view was challenged last week by three academic lawyers in an influential post on the UK Constitutional Law Association website, arguing that the decision properly belongs with Parliament and requires legislation. Leading constitutional experts including Lord Pannick and Sir Malcolm Jack, former Clerk of the Commons, take the same view.

At the time of writing, three separate groups of litigants have announced their intention to initiate judicial review proceedings to compel the Government to place the matter before Parliament. The legal arguments around this issue are not considered here, but will be the subject of a forthcoming Constitution Society paper by Dr Andrew Blick and Richard Gordon QC.

Let us assume for the present that the Supreme Court holds that invocation of Article 50 requires legislation, or alternatively that the new Prime Minister decides that it is right to refer the matter to Parliament in any event. How should a principled MP decide which way to vote, assuming a free vote is permitted, as it was on the first two occasions that Parliament voted on the principle of joining the European Economic Community (on the third occasion in 1971 Labour whipped against)?

Liam Fox recently expressed the view that any MP who tries to block Brexit:

‘I don’t think deserves to have a place in the House of Commons. Their voters should want to ask whether they have a right to represent them if that’s the opinion they take.’

A more balanced assessment would suggest that an MP who felt it right to vote against the invocation of Article 50 could justify his position on at least three types of ground. None of these arguments is decisive, but nor are they evidently unreasonable:

• The referendum result is an insufficient mandate to implement a major, irreversible constitutional change:  the result was very close and showed the country effectively split down the middle; the Leave campaign told significantly bigger lies than Remain; many voters did not properly understand the consequences of Brexit.

• The situation has changed fundamentally since 23 June:  we are in the midst of a balance of payments crisis and the economy is heading into recession; the international security situation has deteriorated over the summer; the polls suggest that Remain would secure a decisive majority in a second referendum (assuming any of this so transpires)

• An MP’s duty is to his or her constituents. Burkean purists will take the view that an MP should vote according to her conscience in what she believes to be the interests of her constituents.  An alternative argument is that an MP should vote to reflect the views of a majority of his constituents (‘their voters’, pace De Fox). Certainly it would seem odd if a London MP felt obliged to vote for Article 50 because of the national referendum result when a significant majority of her own constituents voted Remain. The case of Scotland seems especially clear: all SNP MPs would vote against Article 50, and it is difficult to argue that they would be wrong to do so.

What if Parliament declines to invoke Article 50, a not unlikely outcome given that a substantial majority of sitting MPs are Remainers by personal conviction? The constitutional position would be that Parliament had sought the advice of the electorate in a referendum and decided, on reflection, to reject that advice. Politically, the matter would clearly not end there. A general election or –  horrific to contemplate – a second referendum would seem unavoidable.

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Note: This article first appeared at the Constitution Society blog. It represents the views of the author and not those of Democratic Audit or the LSE. Please read our comments policy before posting. 

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Nat le Roux is Strategy Director of The Constitution Society. He writes here in a personal capacity.