The 2016 UK referendum poses important questions for democracy

The 2016 Brexit UK referendum has thrown Britain into an unpredented political and constitutional crisis which now threatens to engulf it. To ask whether holding the referendum was the best decision in the circumstances risks inviting political controversy, so embroiled in a bitterly divisive conflict has the issue become. Thus the political observer is treading over volatile territory. However, if we take a step back and look at the health of the body politic for a moment, it can be possible to see some vital lessons to be learned about the use of referendums within the British political system. This is especially important given that many are advocating a second UK referendum as a way out of the current impasse.

The unwisdom of the 2016 Referendum

A clue about the wisdom  of the use of the referendum device in 2016 can be seen from two areas.

Firstly the referendum question occured before detailed policy had been developed as to how Britain was to extricate itself from the complexities of Britain’s involvement in EU. This was illustrated during the campaign when there were at least three possible options mooted, the Norway model, the Swiss model, or a Canada-style free trade treaty. No coherent programme was proposed for the electorate to consider, let alone Parliament or the EU, but instead a straight deceptively simple-sounding Leave or Remain question. The government has been floundering ever since over these options: what does “Leave” actually mean?

Secondly, Mrs May called a general election in 2017, which deprived her of her majority and thus of the legislative means by which concrete policy based on the rererendum result could be developed, agreed and implemented, and within the very tight if not impossible time frame of Article 50, namely two years. This outcome has left her government almost paralysed. The election would have been perfectly normal within a representative democractic model such as the UK’s, but did not sit at all well with the prior use of a plebiscitary one. The “people” had already spoken, and had left the detailed policy making to others, who were by far not agreed as to what that should be.

What should be the role of referendums in the UK system of government?

Thus the detached observer, if such a beast exists in the current climate, must surely ask some very important questions about the role of referendums in the British political system.

We have an uncodified constitution and thus no guiding set of principles, with dispute-resolution mechanisms, within which referendums function. It’s all ad hoc. Referendums are in historical terms a very new innovation in the UK context, the first being on whether to stay in the then-EEC in 1975. Several have been held since, some usefully and some less so. None have posed the level of difficulty of the Brexit one. It should also be borne in mind that the UK referendum took place within the context of what has been arguably a major crisis of confidence in our democratic process, with very many people feeling disengaged from politics and “Westminster”. Thus this discussion must pose broader questions about how best to obtain renewal in the democratic process.

A useful report on UK referendums

Helpfully, a report by the Independent Commissions on Referendums has some useful pointers. You can read a summary here. In a very wide-ranging and thorough review, some particular points stand out.

(1) The use of a referendum, while a useful tool in government, should also be with great caution, since it can potentially undermine our core principle of representative government.

(2) Referendums should generally be post-legislative, not pre-legislative as in the 2016 case, unless there is a clear-cut and well-developed policy case as with the Scottish referendum of 2014. If post-legislative, then after the policy has been developed in detail and legislated for, a clear choice on whether or not to implement a programme can be put to voters to endorse. They would take place at the end of a decision-making process. Pre-legislative referendums are in general highly problematic.

(3) The referendum question should if possible have multiple options rather than be simply a binary one, to allow for the different options such as the Brexit one, and that it should be tested in advance

(4) The role of information-giving should be made more spohisticated, given the great difficulty many people had in understanding the complex issues involved in 2016.

(5) Campaign financing and advertising including the internet needs to be updated given the abuses that have been revealed and the regulatory bodies given more teeth

(6) Interestingly the Commission rejected notions about required higher levels of turnout or size of majority

A disastrous choice

In the case of the very complex nature of the UK’s involvement with the EU, the use of a pre-legislative referendum has been disastrous as well as politically naive. It is not helped that its biggest champions, the Brexiteers, don’t have a coherent programme but rather vague policy choices. In effect they are leaving it to reluctant Remainers to do their dirty washing, so to speak. Arguably many of the problems now being faced are due to that one single error of judgement of David Cameron to go for a “quick fix” of a long-standing and deep seated issue of the UK’s relationship with the EU, one that has massively backfired and now threatens the very integrity of the UK.