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Gerard Delanty – A Crisis of Governability? Why the Brexit referendum undermines democracy and must be declared illegitimate

June 30, 2016

by Gerard Delanty

It has been widely commented that the so-called Brexit outcome of the Referendum on 23rd June has led to the most serious political crisis since 1945. The government has no clear plan and the opposition has all but collapsed. At a time when leadership is called for, it is strikingly absent. It is not with hindsight that the decision to call the referendum in the first instance can be said to be truly an example of political folly of the highest order, comparable to the equally disastrous decision of the UK government to go to war against Iraq in 2002. Undoubtedly David Cameron is now regretting his gamble to call a referendum to solve an internal conflict in the Conservative Party. The possibility of the Brexit outcome was always to be reckoned with. The result of such folly is a deeply divided country, a terrifying increase in hate crimes, a huge rift between the UK and the rest of Europe that will not be easy to reconcile, an economic and financial crisis that has massively deflated pension trusts, and above a political and economic crisis that has brought to country to the brink of a serious crisis of governability that will very likely end in the collapse of the UK with the case for Scottish independence gaining momentum. If this comes to pass – it is by no means certain – it will then precipitate a chain of events in Northern Ireland.

These scenarios have been much discussed in the past week. What has been given insufficient attention is the democratic legitimacy of the referendum. I believe there are strong grounds on the basis of democracy for the result to be, if not annulled, debated and voted on by parliament. In making this argument I am not seeking to reverse a decision that I don’t agree with by looking for new rules or seeking a second referendum, for if the first was a mistake a second would be a greater error. The criticism that a parliamentary vote is undemocratic because the people had their say is undoubtedly why many think Brexit is now inevitable. I argue this is not the case and that the Brexit outcome is democratically illegitimate. There are a number of aspects to this which I would like to highlight.

The outcome of a referendum is unlike the outcome of a general election where simple majorities determine the result. A referendum on a matter of major national importance and in which huge constitutional issues are implicated is in itself not decisive. It is consultative. Many countries have rules on the conduct of referenda, such as the size of the majority decision for it to be binding and the percentage of the eligible electorate who voted. The UK does not have such rules. However, the absence of such regulations does not mean that a referendum must be automatically enacted regardless of the consequences and the size of the majority. If the outcome is detrimental to the collective good – and in this case it is demonstrably contrary to the national interest – and leads to undemocratic outcomes, it follows that the argument of majoritarianism does not in itself hold up as the only criterion of legitimacy. The risks to the unity of the UK, the massive reduction of pension trusts following from economic turmoil, the grave implications for peace in Northern Ireland, the catastrophic outcomes for UK universities, are all examples of how the national interest is not served by the outcome. But not only the national interests; there is also the interests of individuals as individuals: Brexit would deny people of rights that they now enjoy as European citizens. In other words, the majority decision must be weighed against other factors and it must also be subject to checks and balances. This is not straightforward, but it is also not something that can be side-stepped.

Much has been said about Brexit as a democratic outcome. Democracy is more complicated than this. Democracy is not simply a matter of a majority ruling. It is one dimension, as in the electoral process. However, democracy is also about the setting limits to what majorities can decide. In the case of the referendum of 23rd June there is the problem that the majority is insufficiently large to warrant implementation. If some 600,000 had voted the other way the situation would be reversed. This cannot be a democratic mandate in view of the magnitude of the consequences that are now manifest. Referenda are blunt instruments that can easily undermine democracy if there are not appropriate checks and balances and mechanisms for establishing consensus. This can happen when there is insufficient debate informing the process and, above all, where the consequences produce undemocratic results. Democracy is also about protecting the misuse of majoritarianism where it has negative consequences for others. This was a strong reason not to hold the referendum in the first instance, since this was a possible outcome and should have been anticipated. Such folly can now be set right.

There are two things to be considered here: the matter put to referendum and the actual procedure of holding the referendum. The question of Brexit was always unsuitable for a referendum, due to the complexity and ramifications of the issue. Voters are asked to
express themselves on a whole range of matters in one single vote. The Leave case was based on several contradictory arguments. The holding of a referendum is appropriate only for singular policy/legislative matters (such as the Irish same-sex marriage referendum) and not on complex societal issues or ones that reverse the status quo in ways have major negative implications for many people. The Brexit referendum was not been set up in a way that maximised public deliberation with due inclusion of expert and political opinions and as a consequence these considerations were not taken into account. Rather, the opposite has happened. In that regard, there is much to agree with the Scottish constitutionalist Stephen Tierney in his argument that is it not the referendum in principle that is undemocratic, but rather that its application produces opposite results.

The referendum is not in itself binding for another reason. It requires parliamentary debate and approval. A peculiarity of the British political system since 1688 is the sovereignty of Westminster (rather in the people, as in the political traditions shaped by modern republicanism). This is of course an anachronistic legacy of the seventeenth century and leaves much to be desired. Yet the fact remains that the UK is a representative democracy in which parliament is sovereign and it follows that parliament should ratify the outcome. The magnitude of the proposed Brexit cannot be left to the Prime Minister to trigger. However, I think the main case is not this anachronistic institution of the sovereignty of Westminster, but the argument for democratic legitimacy. In view of the grave economic crisis and what now has all the signs of a crisis of governability, it is vital that parliament debates and votes on the outcome of the referendum.

The Brexit vote was in part inspired by the claim that the EU is undemocratic. There is some truth to that, but the UK political system is more undemocratic and if the narrow majority holds sway democracy will be yet more compromised. The existence of an unelected upper house, a hereditary head of state, a secret honours system, a political system based on elitism, the office of PM (who can act by royal prerogative), the institution of the crown in parliament, the ‘first past the post’ system, all underline the absurdity that Brexitania is more democratic than the EU. On the issue of loss of sovereignty, it should be noted that (a) national governments still retain sovereignty in almost everything and that most EU legislation comes in the form of directives that are translated into national law in ways that are dictated by national contexts (b) the UK lost complete sovereignty in 1941 when the US entered the war and saved Britain from defeat. Total sovereignty is an illusion. (c) The problem of sovereignty – the locus of power – is certainly a problem for the EU in the case of the single currency, which locks many of the weaker countries into German capitalism. This is not a problem that the UK has and thus does not suffer from the undoubted major structural problem of the EU and (d) on the vexed issue of immigration, which is demand driven, it almost certainly will not be significantly changed in whatever settlement is reached, since this almost certainly involve membership of the EEA. It would in any case require a new hard frontier between Northern Ireland and the Republic. It is hard to see how this is political feasible.

It is evident that the Brexit vote was also a protest vote and that the main target was not necessarily the EU. Voters voted leave for different reasons. Clearly one major factor was a protest against decades of neoliberalism and so-called austerity measures. Immigration has nothing to do with this. To the list of major political follies, to which one add the disastrous decision to bail out the RBS in 2008 and not retain ownership. The real target was British elites, many of whom are only partly democratic. Ironically many of those who voted Brexit will bear the worst costs of economic decline and financial crisis and in the end the elites win. In fact a cruel trick was played on them by cynical politicians who produced arguments that had no basis in fact and have already recoiled on several of their manifestos. It is therefore difficult to see how the case can be made for democracy being best served by invoking Article 50. However, simply doing nothing, sometimes a necessary option, is not the solution, since it will cultivate an intolerable level of avoidable uncertainty and with this further social malaise and political unrest.

The Referendum reveals one important sociological truth: the major divisions in Europe are not between countries or with the EU but within countries. This is dramatically highlighted by the Brexit outcome which has produced numerous fault lines. The UK is a broken country facing a severe crisis of governability.

The Referendum needs urgently to be revisited by parliament. This will be only the first step in a new settlement that will have to address the reasons why people voted for this outcome. One of the main obstacles to be overcome is the disproportional influence of UKIP and their hard-line right in the Conservative Party. The Referendum was a failed and misguided attempt of the Prime Minister to sort this problem out but made it worse. The UK political field differs from other European countries in that the populist right – anti-immigration, Euro-sceptical – have a stranglehold over the main centre right party and have now engulfed the entire political system. In fact, there is nothing more European than UKIP which uses democracy to undermine democracy. The first act of sovereignty must be to regain control of the democratic process from this movement and their few supporters in parliament in order that four decades of progress will not be reversed.

 

Gerard Delanty is Professor of Sociology and Social & Political Thought, University of Sussex. He is the author of more than 100 papers and eleven books, including Inventing Europe: Idea, Identity, Reality (Macmillan, 1995), The Cosmopolitan Imagination: The Renewal of Critical Social Theory (Cambridge University Press, 2009), Formations of European Modernity: A Historical and Political Sociology of Europe (Palgrave 2013).

 

Address:

Gerard Delanty, Department of Sociology, University of Sussex, Brighton, BN1 9QE, UK

Email: g.delanty@sussex.ac.uk

 

 

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