The constitution of democracy and the pretensions of the plebiscite

weale

Albert Weale writes that the Article 50 case raised questions about which form of democracy can claim legitimacy –  the constitutional democracy established in the UK or the plebiscitary democracy now favoured by many Brexiteers. He discusses these two models and concludes that the only meaningful interpretation of democracy is the constitutional one. In this context the outcome did not represent the judges against the people, as some newspaper headlines suggested, but the judges for the people.

When the UK’s High Court rendered its decision on whether the government could trigger Article 50 of the Lisbon Treaty under the royal prerogative to initiate the UK leaving the European Union, it released a storm of abuse against the judiciary in the press and among cabinet ministers. ‘Enemies of the people’ snorted the Daily Mail; ‘The judges versus the people’ growled the Daily Telegraph. These were the crudest examples. Yet, for all that, they are representative of the Brexiteers’ critique. Had not the people spoken on 23 June and decided the issue by a majority in a referendum? How then, it was urged, could a group of unelected judges interpose themselves between the will of the people and the realisation of that will in policy?

For anyone who bothered to follow the issues in detail and read the judgement, the reality was, of course, quite otherwise. That the claim of the plaintiffs could properly go before the courts was agreed as much on the government side as on the plaintiffs’ side. Indeed, it is easy to see the government welcoming the challenge in order to secure legitimation for its pretension to executive authority by a court judgement in its favour. The case was not about whether Brexit should happen but how it should happen.

There are legal arguments claiming that the High Court was wrong to suppose that triggering Article 50 will alter the rights that citizens enjoy under the law of the land. Those arguments make much of the distinction between the European Communities Act as a conduit or vehicle of rights as distinct from being a source of rights. Those arguments will be for the Supreme Court to decide. But what is certainly prompted by the reactions to the judgement is a broader question of constitutional politics. As well as questions of constitutional law, there are important questions of constitutional and democratic theory. For what is at issue in the controversy was which form of democracy could claim legitimacy – the constitutional democracy established in the UK or the plebiscitary democracy that Brexiteers now favour.

The principles of plebiscitary democracy can be expressed in three claims. Firstly, the people is sovereign. Secondly, the people expresses its will on matters of public policy through a referendum in which a simple majority is decisive. Thirdly, the function of the government is to implement the will of the people as decided by the referendum. As a corollary of these claims, it is said to follow that anything that frustrates the will of the people is simply anti-democratic.

Scholars since Max Weber have pointed out that something like this theory of democracy has been used to legitimate executive domination. It was used by Napoleon III to acquire autocratic power in December 1851, in the events that Marx famously described as The Eighteenth Brumaire of Louis Bonaparte. Similarly, the referendum was used by Charles de Gaulle in 1958 to cement his accession to the French presidency. In Latin America a variant of plebiscitary democracy was labelled by Guillermo O’Donnell as ‘delegative democracy’, an ideology in which directly elected presidents were seen to embody the higher interests of the nation over the claims of competing political parties.

By contrast, the fundamental principle of constitutional democracy in its parliamentary variant says that the people’s elected representatives should be decisive on all important matters of law and public policy. Put simply, parliament is sovereign. Governments acquire their authority from their ability to maintain parliamentary support. There are areas of government action, most notably those involving the conduct of international relations, where governments are accorded freedom of action, sometimes with significant consequences as in the declaration of war. However, in matters that affect the rights and duties of citizens, the executive cannot effect changes change without the agreement of parliament. By the accident of history these principles were established in England and Wales in the seventeenth century. In its Miller judgement the High Court laid out this constitutional history and the legal judgements that subsequently cemented them in a brilliantly lucid account.

To say that there are two theoretical or ideological alternatives is not to determine their respective merits. You might think that either could be adopted depending on your viewpoint. Yet, there are three arguments – one logical, one technical and one political – that show that the only meaningful interpretation of democracy is the constitutional one. Plebiscitary democracy cannot be the basis of legitimate government.

The logical argument depends on noting that modern democracy is not simply a matter of transferring ultimate authority from absolute monarchs to the people. The story of the rise of democracy, particularly in Europe, is sometimes told as enacting the principle that where once stood the will of the king, there now stands the will of the people. Democratic sovereignty now means that the people governs itself. Yet, as H.L.A. Hart pointed out many years ago in The Concept of Law, this storyline makes no logical sense. Citizens as members of a people cannot give orders to themselves, unless we assume that there is a set of accepted rules by which the results of elections and the processes for making laws are deemed valid. Self-government can only be defined by those constitutional rules. The very idea of popular self-government presupposes constitutional rules. It is the only basis on which the idea of popular self-government makes sense.

The technical argument against plebiscitary democracy was noted by Max Weber who coined the term. The mandating of representatives and governments by the people lacks technical sense in situations in which circumstances change and unforeseen events occur – in other words always. Unlike parliaments, the people is not in a state in which it is either in session or available for emergency recall. The negotiation and compromise that is at the heart of good legislation and policy is not something that can be conducted by the people. This is not to say that negotiation and compromise are always done well by parliaments. It is to say that only representative bodies are capable of attending to detail and circumstance.

The third, political, argument against plebiscitary democracy is that no incentive should be given to executives to misuse their agenda setting powers where referendums are concerned. The referendum of 23 June provides a perfect illustration of the inherent dangers. The referendum presented a simple binary choice to the electorate: remain or leave. However, ‘leave’ is not one alternative but a set of mutually incompatible alternatives. By presenting a binary choice the Cameron administration clearly aimed to present remaining as a less fearful choice than leaving. It not only failed in this respect; it failed also to present realistically the choices that were implicit in leaving. The fog of manipulation and incompetence muffles any sense of the will of the people.

None of this is to deny that referendums can play a unique and valuable role in democracies, particularly in matters of secession or political union. It is to say that their role can only be defined through the representative institutions and constitutional procedures by which they are established. In this sense they are creatures of statute, and they derive such authority as they have from the authority that bestows their powers. Their reach and significance is never self-interpreting.

This is particularly true in the case of the EU Referendum Act, the key clause of which simply stated that ‘a referendum will be held’. It would have been perfectly possible for parliament to have stipulated some minimum threshold turn-out or a minimum super-majority. A referendum in a constitutional democracy is always a product of the law. Legal safeguards are needed for the interpretation of its constitutional significance, just as legal powers are needed to establish it.

Someone may argue that the case for constitutional and against plebiscitary democracy is over-stated. Is not the sovereignty of parliament ultimately founded on the sovereignty of the people? Why can the people not use what is sometimes called its constituent power to determine the ground-rules for its own constitutional ordering? Why can it not order itself in a participatory way, going on to use the plebiscite as its instrument of self-government? The prospect may or may not be attractive, a critic might allege, but it is at least logically possible. After all, Germany’s Basic Law announces in its preamble that it has been adopted by the German people exercising their constituent power. If this is so, then are the people not truly sovereign? Yet the example of the German Basic Law proves just the opposite of what one might think from the language of the preamble. The Basic Law was adopted in May 1949 by a Parliamentary Council, a representative body of parliamentarians and jurists, not the German people acting collectively. Of course, no constitution will be legitimate if it ultimately fails to secure sufficient popular support. Yet this is a far cry from saying that a people can constitute itself by its own actions.

In Miller the High Court asserted the principle of parliamentary sovereignty as a way of limiting the ability of the government to act in an unaccountable way. In particular, it reasserted the principle that no government on its own authority could alter the basis rights and duties of citizens. In making its determination, the court maintained one of the fundamental interests that has traditionally animated democratic thought, namely securing protection for individuals from arbitrary government action. This was not the judges against the people; it was the judges for the people. Only a misunderstanding of the principles of constitutional democracy could hold otherwise.

This post was originally published on the UK Constitutional Law Association blog and is re-posted with permission.

About the author

Albert Weale is Emeritus Professor of Political Theory and Public Policy at UCL.

9 thoughts on “The constitution of democracy and the pretensions of the plebiscite

  1. “Put simply, parliament is sovereign. Governments acquire their authority from their ability to maintain parliamentary support. ”

    Indeed. Parliament decided to give the people the choice by voting in a referendum. True it did not state this explicitly in the Act. But ultimately, in interpreting the law, one goes to the will of Parliament and that was clearly to give the decision to the people.

    Pray tell, did parliament intend that in the event of one of the two possible outcomes it would then refuse the government permission to act on that result? How disingenuous. Is this what is meant by post-truth politics? If parliament thinks this is a proper way to conduct its relationship with the people then the people need to find an alternative to parliament. In any case, I believe it is incorrect to state baldly that Parliament is sovereign over the people. It is sovereign among the institutions of the state, not the people, and is now itself directly subordinate to the EU, having no power to oppose either EU directives or EU regulations.

    Parliament ratified the Lisbon Treaty including Article 50 and gave unqualified authority to the government to act by royal prerogative to execute every article of the treaty. That includes Article 50.

    Parliament does not claim to conduct the negotiations with the EU and neither does the Government intend to deny parliament oversight. The Government intends an Act of Parliament on any future formal/treaty relationship with the EU. The Government intends to legislate to bring current outstanding EU law into UK law at an appropriate time. There would be no loss of rights to UK citizens whatsoever, once that is done. The Government intends the withdrawal agreement to be laid before Parliament – presumably following the 21 day convention.

    So what is the problem?

    The problem is indicated in Albert Weale’s sneering use of the word pretension: “Indeed, it is easy to see the government welcoming the challenge in order to secure legitimation for its pretension to executive authority by a court judgement in its favour.” Albert Weale wants UK to remain wholly or partially a member of the EU and is looking for some legal or constitutional mechanism to obstruct Brexit.

    The age old argument about whether MPs are mere delegates or in office to act in the true interests of their electors, even though their electors see things differently, is irrelevant because Parliament – bar 6 MPs – decided to give the decision to the electors. The Government’s election promise was to “let the people decide”. The Act itself does not say that it is advisory. At no point did ministers in their public statements either to Parliament or outside say that the referendum result would only be advisory. On the contrary, they repeatedly said that the referendum would allow the British people to decide the question of whether we remain or leave the EU.

    In opening the second reading debate on the Referendum Bill on 9 June 2015, the Foreign Secretary said:-
    “This is a simple, but vital, piece of legislation. It has one clear purpose: to deliver on our promise to give the British people the final say on our EU membership in an in/out referendum by the end of 2017. …. .. we surely should all be able to agree on the simple principle that the decision about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber. The decision must be for the common sense of the British people. That is what we pledged, and that is what we have a mandate to deliver.” Parliament agreed.

    But of course many Remainers who make the argument that the referendum is only advisory also argue for a second referendum on the same question or on the terms of the withdrawal agreement or on the treaty formalising a new relationship with the EU. If it was ever intended to be merely advisory and not a decision why did not a single Remainer object to the Government’s statement in its publicly funded campaign propaganda that the referendum is the voting public’s decision? Should Remainers now admit that was (another) lie?

    En passant because it is irrelevant anyway, Albert Weale refers to the 18th century about an MP’s duty to exercise his own judgment and not simply follow the will of those who elected him. That was when an MP represented all his constituents but was elected by a fraction of them (excluding all women).

    It should also be borne in mind that the High Court did not hear all the relevant arguments, only those put by the Plaintiff and, what some consider a feeble, Government legal team. Since the Government has no intention to remove any UK citizen’s rights and invoking Article 50 does not of itself do so, how else could the High Court arrive at the conclusion that a Government intending to restore sovereignty to Parliament by rectifying its subordination to the EU as exercised through Royal Prerogative, is what Albert Weale sneeringly calls a “pretension to executive authority”?
    Perhaps the Remainers really want to have a Parliament that does not in practice govern and thereby avoids accountability to the ignorant, multi-prejudiced great unwashed proletariat that is the English.

    • The following is perplexing: “It should also be borne in mind that the High Court did not hear all the relevant arguments, only those put by the Plaintiff and, what some consider a feeble, Government legal team.”
      It is the nature of court hearings that only those represented get to speak. How do you suggest “all the relevant arguments” are heard and who would decide which they were? Maybe you would prefer a European model?

      I considered that the status of the referendum was addressed by the court, albeit not to your liking. I also considered the difficulties of the binary choices offered in the referendum were well explained by professor Wheale. Not even the government suggested the way forward was clear. Indeed it was the difficulties of developing a negotiation strategy that led the government to want to keep to itself the right to trigger article 50.

      • Replying to Chris V. Two arguments not heard by the High Court – in addition to what I have already cited – are as follows:

        “First, even if the European Communities Act 1972 did by implication impose a restriction on the prerogative power of the Crown to withdraw the UK from the Communities (if withdrawal was permissible under international law, which was at the time doubtful, see Costa v ENEL (Case 6/64) [1964] ECR 585, 594), the effect of the European Union (Amendment) Act 2008 (“the 2008 Act”) was to negative any such restriction on the exercise of the wholly new explicit power of withdrawal from the EU under Article 50 of the Treaty on European Union. The 2008 Act:

        (1) inserted the Lisbon Treaty, and accordingly Article 50, into the “Community [renamed EU] treaties” to which the ECA 1972 gave effect; and

        (2) in section 6, imposed explicit Parliamentary control over the exercise of the prerogative to invoke several powers introduced by the Lisbon Treaty, including Article 48(6) TEU on simplified treaty revision, but not over Article 50 on withdrawal.

        Parliament must have been aware of the important new power in Article 50 and decided by contrast that its exercise should not be subject to Parliamentary control. The European Union Act 2011 further elaborated the system of Parliamentary control over prerogative acts and thereby further confirmed Parliament’s intention not to fetter the prerogative in the exercise of Article 50.

        Secondly, and in any event, the effect of the European Union Referendum Act 2015, read against the background of the ECA 1972 and the 2008 and 2011 Acts, was to negative any such restriction which might otherwise have arisen, if the result of the referendum was a majority to leave the European Union. As Lord Dyson MR recently held “the referendum (if it supports a withdrawal) is an integral part of the process of deciding to withdraw from the EU” in accordance with the UK’s constitutional requirements as referred to in Article 50: Shindler v Duchy of Lancaster [2016] EWCA Civ 469 at [19].”

        See: http://www.lawyersforbritain.org/referendum-article-50-case.shtml

        I believe it is also the case that the failure of MPs to exercise any of the numerous ways open to them of securing a vote in Parliament since the referendum was not mentioned in the High Court case. Is this not relevant to a case that is supposed to be about the supremacy of Parliament?

        Further, the High Court judges cited parts of AV Dicey’s writings on constitutional law but not arguably relevant writings of his on referenda being binding constitutionally as the people are sovereign over parliament.

        As to method, Lawyers for Britain applied to intervene in the public interest and their intervention was approved by the Supreme Court. Scotland and Wales have also been allowed to intervene. I do not claim any expertise in court procedure but it does seem that there are channels to introduce new arguments and new representation in an appeal process.

        Parliament has not in the past objected on constitutional grounds to Ministers passing into UK law heaps of EU legislation, why does it object only when this particular article of a fully ratified international treaty is to be exercised? Leaving the EU will restore sovereignty to Parliament by removing Parliament’s subordination to the EU. Parliament now has three committees hearing from the Government on Brexit. There will be future bills on repealing relevant Acts, eg. ECA72, bringing outstanding EU law into UK law to make a clean transition. Depending on the nature of the terms of withdrawal and the terms of any new relationship, these may also be subject to votes or bills but would at least be laid before parliament for 21 days as usual.

        What is so different about Article 50? A common sense view is that nobody would attempt to hinder or undermine the Article 50 process unless they wanted to prevent or delay its triggering, ie., keep Britain in the EU. There is nothing relevant other than that to be gained by so doing. Don’t tell me there must be a court case because it’s important constitutionally. In anticipation of what, exactly, do we need a precedent to be set by this case? I do not believe that anybody wanting the government to get on with it, keeping parliament informed, and presenting the necessary bills and agreements to Parliament as usual would be objecting now to the Government invoking Article 50. Any MP who does is able to take the necessary action in Parliament. None has chosen to do so.

  2. Thanks Peter Gardner for your reply.

    It is odd that in its efforts to make the government more accountable over Brexit plans, Parliament has not chosen to pass a motion or seek some other method to impose its will. Backlash from the press maybe. But it’s clear Parliament wants a say and may agree article 50 is procedural.

    I think it is not . I refer you to the excellent blog by Gavin Phillipson https://ukconstitutionallaw.org/2016/11/25/gavin-phillipson-the-miller-case-part-1-a-response-to-some-criticisms/

    I agree with him that use of the royal prerogative for article 50 would frustrate the ECA and EPA.

    • Thanks for the link, Chris V, most interesting. What do you suppose that Parliament intended by ratifying the Lisbon Treaty including Article 50: that it alone could execute that Article whereas the Government could without further reference to Parliament execute every other clause?

      Second, how can any statutory or EU derived rights be considered to be removed by invoking Article 50 since all rights continue to apply after Article 50 is invoked and it is the Government’s intention to invite Parliament to write all outstanding EU law into domestic law at the time Parliament actually repeals ECA72 and UK leaves the EU, with any exceptions being approved by Parliament? I guess that whereas such action addresses such a concern, it cannot be argued in court simply because it has not yet occurred.

      Common sense and the law are sometimes at odds. Constitutional issues are being raised in court on this question for no reason other than to delay Brexit, yet the motivational question whether Brexit should occur is inappropriate to consideration by the court. It is merely a delaying tactic, although, like any challenging legal case, it excites and enriches lawyers. Gina Miller’s purpose is to frustrate the carrying out of the wishes of the majority of Britons regardless of whether it is the Government or Parliament that invokes Article 50, in order to gain time while something else develops to prevent or significantly dilute Brexit. Cue Sir John Major, Tony Blair, Richard Branson arguing for a tyranny of the minority, a classic EU response when challenged by democratic votes.

      And the fundamental question remains, why would Parliament wish to reject restoration of its sovereignty by continuing its subordination to the EU? To avoid accountability to the voters? Surely, if it wants its sovereignty to be restored it would not care whether it or the Government invokes Article 50 but would instead support the Government and start proactively reviewing outstanding and forthcoming EU Directives to prepare for the big day when it must decide which to enact into UK law?

      • My personal view is that Parliament should invoke article 50 since doing so has the effect of frustrating the purpose of ECA 72 and the rights that flow from that. Parliament is sovereign not the government. It is beyond ironic that in a referendum where Parliamentary sovereignty featured as an issue, that the first thing the government, or more properly the Crown, does is seek to prevent Parliament from exercising its sovereignty. We fought a civil war to stop crown prerogatives.

        I don’t think that either House will prevent article 50. The legal arguments are about who invokes article 50 rather than whether. One’s views about the motivation of the claimants in the first hearing seem, to me, to be irrelevant to any matter the Supreme Court will consider. It’s a matter of high legal principle.

        What Parliament decides to do is not a matter for the courts, it is a matter of politics where the electorate can decide what they think at the next election. The uncertainty about what kind of Brexit deal we want and what we can get is bound to generate debate among those who voted to leave and those who voted to remain. Those issues will not be resolved by the courts.

        The website I referred you to has many articles including one about the Great Repeal Bill. It will take years to sort through all the EU law but the first step, as currently planned, is, as you observe, to incorporate all EU law into UK law, leaving the position as now, except that we will not be subject to the Court of Justice of the EU. That situation will dismay many but it’s the only practical way with a two year deadline. And as you observe, the proposal does not provide certainty about existing rights as it is prospective and so does not address the loss of existing rights. No UK law could replace rights to vote in European Parliamentary elections, what have been described as category III rights.

  3. Chris V, thank you for your reply. I am not a lawyer and, although several of both my and my wife’s family are, my personal experiences of engaging professionally with the justice system in UK has produced surprising results. I have yet to meet a lawyer prepared to guarantee the success of his or her clients in court. So I am grateful for your reference to the UK Constitutional Law Association. It is a truly fascinating area and I am currently buffing up on my history of England (compensating in retirement for a poor school record in that particular subject!) so reading about the constitutional precedents – I wish this site would focus more on these than the partisan politics – will make for interesting companion reading.

    I have to say that I am at a loss to explain Mrs May’s approach to Brexit. She seems to me to be making what in the Royal Navy we would call a pig’s ear of it. Any leader worth the name would as PM do all they could to gain the support of the House of Commons as the first step. I hark back to 1914 when, wrong or right, the government understood this and without the need for a formal vote only when it knew it had that support (eventually) made its decision to go to war. What have we lost since then? We should not have to rely on a legal battle to decide how Article 50 should be triggered. Surely there is enough goodwill and a sense of the common national interest among the Government and back benchers so that Britain can just get on with learning how to govern itself, developing its economy and so on. We really need exit to be done in short order so that businesses, organisations and individuals know where they stand. We need to think in a 10-30 year time scale. Other countries in what we consider the third world would jump at such a chance. One despairs.

    • Amazon has a good range of second hand constitutional law books for 1p plus £2.80 postage. Hillaire Barnett’s constitutional and administrative law 10th edition is clear.

      I’m afraid I think exit will be long and messy even with a fair wind.

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