The people’s will
Thomas Maissen and Ernst-Ludwig von Thadden discuss why it is difficult to understand why the UK's referendum on EU membership must be understood as binding parliament today.
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The central question for the future of Brexit, and thus for the UK, is that of the meaning and implications of a referendum in a democracy. Unfortunately, but understandably, in the current public debate in Britain this question is mostly discussed from a tactical perspective and no longer conceptually. In this article, we want to come back to some of the latter aspects.
In her resignation speech, Theresa May stated that “in a democracy, if you give people a choice, you have a duty to implement what they decide”. This is a remarkable sentence, and to a foreign observer it is equally remarkable that the “if” clause seems to have raised no public discussion. Democracy is the rule of the people (the “demos”). Whoever this “you” in the Prime Minister’s speech may be, you do not just offer such a choice if and when you want to. In a democracy, the people always have the choice – perhaps not at every point in time explicitly, but their will always matters.
Nevertheless, many supporters of Britain’s separation from the EU insist on the “people’s will” and the importance of delivering “what the people want” with exclusive reference to the 2016 referendum. If one looks at its numbers, a fraction ranging from 25.5 % (in Scotland) to 38.7% (in England) of the electorate voted for leaving the EU (percentages of participating voters times participation rates). All the others either did not know what to make of the question, were indifferent between the two alternatives (as they understood them), or rejected the proposal. These numbers even ignore the many British citizens living abroad who were not allowed to vote. There was a strong minority – and in fact a narrow, very heterogeneous majority of those who participated in the referendum – in favour of an unspecified Brexit, but not more. A priori, it seems quite questionable to interpret this as the “will of the people”, but this obviously was the position of Parliament when it voted to trigger Article 50 on 1 February 2017. But it seems even more questionable to conclude from it that the only solution of the current crisis in Britain must be the implementation of a three-year-old unspecific manifestation of the people’s will.
To foreign observers, it is difficult to understand why the referendum must be understood as binding parliament today. Either parliament is sovereign - this is the notion of parliamentary sovereignty usually associated with the British political development since 1688; then, by definition, parliament is not bound by the will of any other institution, and in particular has the right to change or amend its earlier decisions – or the people (or rather the nation, i.e. all citizens) are sovereign, which is the literal translation of democracy. Then the sovereign people can take and review their decisions when and as often as they wants to; and their agents (the politicians) better consult them when major developments require a new assessment of an earlier decision.
To find out what the people really want in fundamental issues takes a long time and careful, repeated discussions. Unlike the UK, Switzerland is an example of a country with a long tradition of direct democracy where the sovereign nation (i.e. the majority of the voters) decides on about a dozen issues per year in various referenda. As a prominent example, in Switzerland it took decades and many referenda on different constitutional levels to let a part of the Catholic, French-speaking Jura split off from the Protestant, German-speaking canton of Bern in 1978. Thanks to these referenda, the Southern part of the Jura – French- speaking, but Protestant – eventually decided to stay with Bern. This is, after all, democracy: that as many citizens as possible have their will. Such a procedural understanding of democratic participation is one of several important tools to avoid the tyranny of a majority, a major risk inherent in democratic rule.
Of course, a further referendum in Britain on the basis of what has been learned in the last three years may yield a different result from the previous one. For exactly that reason, most supporters of Brexit disqualify anyone demanding a further referendum as violating the will of the people. But if the will of the people mattered in 2016, it matters also in 2019 – even if the people might have changed their mind. And just like the will of the people in different districts of the Jura mattered in Switzerland, the will of the people in Northern Ireland or in Scotland may be voiced in the future and would then have to matter.
But unlike in Switzerland, British democracy is not based on a system of proportional representation or direct democracy, but on majority voting and delegation, i.e. the representation of the electorate by locally elected members of parliament. In such a system, a referendum can at best offer a snapshot of an average sentiment within the population. The democratically legitimised vote is that of the elected members of parliament. Their duty is to talk to their voters, assess their wishes, reconcile them with their knowledge of facts, constraints, and consequences, and make a personal decision accordingly. This is a heavy duty, and much of the world’s admiration for the British democracy traditionally rested on the conscientious exercise of this duty by MPs. Demanding from an MP to simply execute the majority view in a national referendum does not follow from the principles on which British democracy is built.
Democracy is a complex and demanding concept, and it has been implemented in different ways in modern societies. It would therefore be wise not to insist on an absolute or all-or- nothing “people’s will”. Democracy, in its direct or in its parliamentary version, is a process, and whoever is entrusted with the execution of the “people’s will” is well advised to review his or her decisions regularly. Otherwise, the remains of the day may be much more unpleasant than just a few percentage points off the national GDP.