By Andrew Katz
I just had a long conversation on twitter with a Brexiter. He was polite and civil, but he was pretty aghast at my suggestion that the referendum was too complex a question to be put to the electorate. This is counterintuitive to many people, and I want to set out my reasoning.
The starting assumption seems to be that referendums are the purest form of democracy, and, as such, any suggestion that they should be regulated or questioned is anathema. There’s no constitutional basis for this view, and for good reason.
The point of our representative democracy is that MPs are able to make the complex decisions better than us, because they have resources and information available to us that we don’t, and they are paid to have the time to consider and debate issues properly. And all this is in the context of their overriding duty (above self, above party and even above their constituencies) to act in the best interests of the country as a whole.
To effectively say that the “people decided and I have to follow their decision” is an abrogation of that responsibility. It’s not permissible for MPs to delegate their decision making powers, but that’s essentially exactly what they did. (There’s a legal phrase for this: ‘delegatus non potest delegare’: a delegate does not have the power to delegate further.)
That the electorate is a bad decision-making body in these circumstances doesn’t help.
The referendum was, of course, advisory, which is why the protections and safeguards you’d expect were not put in place. And voters are not under an obligation to act in the best interests of anyone, so blindly following the result means no protection for many people: disenfranchised expats, children, disenfranchised EU27 people who made their home here, and even those who voted to remain. So why should the question not have been put to the electorate in the first place?
For one thing, “Yes” and “No” are hugely asymmetric in these circumstances. Remaining means retaining a direction of travel we understand, even if we don’t like it. There’s no credible argument that the EU is about to implode (especially since we are not in the Eurozone), and you can sensibly extrapolate from the effect of our years of membership, and the experience of other EU countries, to see that, maybe it’s not so great, but it’s not so bad either.
Leaving is an entirely different matter.
Let’s look at the 700-odd treaties we will immediately lose the benefit of on Brexit day. Now, logically, if the referendum question had been “shall we unilaterally withdraw from 700 treaties in March 2019?”, people would have considered it bonkers. How on earth could anyone, even dyed-in-the-wool experts, be able to answer that question sensibly? But that question was, essentially, part of the question actually asked in the referendum, along with countless others, similarly complex.
So it’s pretty clear that, even if you believe in referendum-based democracy, there are questions that should not be asked of the electorate. Which is why sensible countries like Ireland and Switzerland have procedures to test and assess the questions.
But our referendum was advisory. So Parliament should take it into account, and give it the (serious) consideration it deserves, taking into account the interests of the country as a whole (including the disenfranchised) and taking into account that it was tainted by fraud.
And that is what they are signally failing to do. I don’t regard myself as anti-democratic: I am pointing out that the referendum itself was anti-democratic, and its elevation to a totemic act (someone called it ‘reification’) has been the core of this disaster.
This is not special pleading. This is not sophistry. This is what I genuinely believe. And when this whole shitshow is over we need to take a good look at our constitutional arrangement to make sure that this sort of thing can’t happen again.
Thanks for listening. I had to get this off my chest…
Also published on Medium.