The EU referendum and some paradoxes of democratic legitimacy

Nat-le-Roux

In parliamentary democracies referendums generate alternative, competing sources of legitimacy. This has been clearly demonstrated by the EU referendum result, with the public voting to Leave despite a clear parliamentary majority for continued membership. Nat le Roux discusses this paradox and suggests that it would not be unreasonable for some MPs to choose to vote against the invocation of Article 50.  

In a parliamentary democracy, referendums are potentially destabilising because they generate alternative, competing, sources of democratic legitimacy. A majority of elected representatives may hold one view on a matter of major national importance. If a referendum demonstrates that a majority of the public hold the opposite view, which manifestation of democratic legitimacy should trump the other?

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.

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The Brexit shambles: charting a path through the rubble

Jim-Gallagher

In a paper published this week by Nuffield College, Oxford Jim Gallagher argues that in responding to June’s Brexit vote the UK and Scottish governments must proceed rationally, on the basis of the evidence, and pursue the national interest. They should not feel bound by the Leave campaign’s promises and should seek to stay in, or as close as possible to, the single market. The paper is summarised here.

In an attempt to unite the Tory party David Cameron has split the country. He has left the governments of the UK with a shambles to clear up. It is not at all easy to see a path through the rubble, but if governments focus on the things that really matter ­­­ – the economy, the territorial integrity of the UK – then perhaps they will be able to discern a way forward.

The first thing they need to do is understand the nature of the vote. Just like the vote in the Scottish referendum, it was as much a cry of distress as a political statement. Like the Leave campaign, the Leave vote is more protest than proposal. Of course, there are those in the UK who are ideologically opposed to Europe, but what got leave over the line in the referendum were the votes of the politically alienated and economically distressed. The present setup, economic or constitutional, is not working for them, and they were led to believe (by a notably mendacious campaign) that leaving the EU would solve their problems.  Those who thought things couldn’t get any worse for them were not put off by George Osborne’s warnings about risk.

In that sense voters are like students – they give the answer to the question they would have liked the examiner to ask. But in this referendum, it was the question setters who failed.

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What role will parliament have in triggering Article 50 and shaping the terms of Brexit?

robert_hazell (1)Jack_Sheldon

Constitutional lawyers have been engaged in a major debate over whether parliamentary authorisation is needed for Article 50 to be triggered and the process of negotiating Brexit to formally begin. In this post Robert Hazell and Jack Sheldon move the discussion on, asking how parliament might debate the triggering of Article 50 and, once it has been triggered, what role parliament might play in scrutinising the negotiations that follow.

There has been an outpouring of blog posts discussing whether there is a legal requirement for parliamentary authorisation before the Prime Minister can trigger Article 50 and start the formal negotiations to lead to the UK’s withdrawal from the EU. However, it is probable that regardless of the legal position, the political realities will require some form of parliamentary consent. This post moves the discussion on, to ask in what ways parliament might debate the triggering of Article 50, and, once it has been triggered, what role parliament might play in scrutinising the Brexit negotiations that follow.

Controlling the use of Article 50

Whether the government wants it or not, parliament is likely to have an opportunity to express its support for or opposition to the triggering of Article 50. This could take the form of either legislation, which would formally bind the Prime Minister and government, or a debate on a resolution about the triggering of Article 50 and the conduct of negotiations.

Legislation

Some have argued for the passage of legislation to govern the Brexit process. A court action has been launched to test whether legislation is required before Article 50 can be triggered. Undoubtedly much primary and other legislation will be necessary over the coming years to achieve separation. To explain the different options, this post assumes the court action will fail, so that legislation prior to triggering Article 50 is optional, and not a legal requirement.

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Is a second referendum on Brexit feasible?

me 2015 (large)

Labour leadership candidate Owen Smith yesterday became the highest profile politician to date to endorse a second referendum on Brexit. But how feasible is this? Alan Renwick suggests that a referendum of the type Smith proposes, on whether or not to accept the terms of Brexit agreed with other EU members, is possible. However, much will depend on how public opinion evolves over the coming years. It is far too early to say whether opinion is likely to shift away from Brexit or not.

In launching his bid for the Labour leadership yesterday, Owen Smith said there should be a second referendum on Brexit once the terms of the deal on future relations between the UK and the EU have been negotiated.  In doing so, he became the most high-profile politician to endorse a response to last month’s vote that is attractive to many of those who would like us to remain in the EU. But is a second referendum actually feasible?

There is no doubt that it is possible: parliament can legislate for a referendum on any topic any time it wants. But whether such a vote could deliver the outcome that its advocates intend requires careful consideration. Four key questions need to be answered.

What sort of referendum are we talking about?

To begin with, we need to ask what sort of second referendum we have in mind. Three sorts have been suggested in the course of recent discussions of Brexit:

  1. The first is simply a rerun of the referendum that we have already had. Over four million people have signed a petition saying that – because the result of the referendum was tight and, given turnout, only 37 per cent of those eligible to vote backed Brexit – a second vote should be held before confirming the decision. It is clear anecdotally that many of those taking this view are Remain supporters who are angry that Leave won last month on the basis of what they see as a deeply mendacious campaign. They hope that, now the stakes are somewhat clearer, a second vote would yield a different outcome.
  2. The second option is that last month’s result is taken as showing general dissatisfaction with our current EU membership rather than a specific desire to leave the EU altogether. Rather than triggering the withdrawal process, the government could seek a deeper renegotiation of our membership terms, then go to the country arguing for continued EU membership on those revised terms. This approach was apparently advocated by Boris Johnson last year, and he seemed to toy with it again after announcing in February that he would campaign for Leave.
  3. The third option is that we go ahead with triggering Article 50 but hold a second referendum once the negotiations have been completed, on whether to accept the deal that has been struck. This is the sort of referendum that is now advocated by Owen Smith.

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Brexit and Northern Ireland: key issues and possible consequences

Alan_Rialto2

In this post Alan Whysall sets out the key issues for Northern Ireland in the upcoming Brexit negotiations and examines the likely consequences. He suggests that, if things do not go well, there is a risk of the unwinding of political and social progress. It is urgent that the options for Northern Ireland are quickly and honestly analysed, and that the Executive takes coherent positions on them. But there has been little such analysis in Northern Ireland so far: Brexit reinforces the need for policy development capacity outside government.

On 23 June, Northern Ireland’s voters preferred by 55.8 per cent to 44.2 per cent to remain in the European Union.

Northern Ireland is in many ways in the front line of Brexit: the part of the UK with a land border with an EU state, where a large proportion of the population identifies itself with another EU state, considering itself Irish more than British. But the debate started very late, despite the efforts of an NGO established to develop it. Little analysis of the questions involved has emerged – the Northern Ireland Affairs Committee of the House of Commons produced a useful report but nothing comparable was undertaken locally. Once again, the Northern Ireland system – Executive, Assembly, media, civic society – has found it hard to move beyond the traditional issues of Northern Ireland politics.

Key issues for Northern Ireland in a negotiation

Northern Ireland will need to have analysed the impact of various outcomes from a negotiation, and decided which to press for, and what special treatment it would be looking for, so far as those outcomes leave flexibility.

The most obvious issues are around the border: does it become ‘hard’? So, if the UK is not in the Single Market, can customs duties be avoided – is it feasible that Northern Ireland should have any sort of special status? If not, are customs controls on the border inevitable?

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Will Theresa May call an early General Election? And would it resolve things if she did?

robert_hazell (1)

Theresa May has ruled out an early general election, but that has not stopped predictable calls for her to trigger one on the grounds that her elevation to the premiership without a general election is undemocratic. Robert Hazell suggests that in saying that an early general election is not necessary she is entirely correct: the idea that Prime Ministers need a personal mandate is a misunderstanding of our parliamentary system. Were she to want to hold an election it would not be impossible for her to do so, but the Fixed-term Parliaments Act makes this more complicated than it has historically been and, in the context of Brexit, it is unclear what an early election would resolve in any case.

Does a new Prime Minister need a democratic mandate?

As soon as it was announced that Theresa May would be elected unopposed in the second stage of the Tory leadership race, and so would become Prime Minister, the predictable cries went up that this was undemocratic. No one had voted for her, it was said, other than the 35,000 electors in Maidenhead who voted for her at the 2015 general election, and the 199 MPs who voted for her in the final ballot amongst Tory MPs. The 150,000 members of the Conservative party had been deprived of any choice in the matter, let alone the 46 million electors in the country at large.

Theresa May has herself ruled out the need for an early election. Constitutionally she is entirely correct: the idea that prime ministers need a personal mandate is based upon a fundamental misunderstanding of our parliamentary system. Only in presidential systems is the head of the government directly elected. In parliamentary systems we elect a parliament, not a government. Parliamentary elections are a two stage process: after we have elected a parliament, the new parliament then determines who forms the government. And it is not uncommon for the head of government to change part way through a parliament, and not to call a general election.That has happened five times since the Second World War: when Harold Macmillan succeeded Eden in 1957, when he in turn was replaced by Alec Douglas-Home in 1963, when James Callaghan succeeded Harold Wilson in 1975, when John Major followed Margaret Thatcher in 1990, and when Gordon Brown succeeded Tony Blair in 2007. So far as I can recall, only in the last case was it suggested that the new Prime Minister needed to call a second election.

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