As the British government continues to flail ignominiously between different Brexit options, one wonders whether this is primarily a saga of political incompetence or a symptom of a more serious democratic flaw. While I lean more towards the former than the latter, there are nonetheless important institutional lessons in this woeful episode of British history.
There is a strong case that Brexit is a tale of political misjudgment. The Conservative leader, David Cameron, badly miscalculated in 2016 when he referred the question of whether the UK should remain or leave the EU to the voters in the form of a national referendum. Believing that the people would resolve his party’s internal split on the EU in his favor was fatal.
No doubt, he was misled to some degree by the “success” of the precedent set by Prime Minister Harold Wilson in 1975. Faced with a similar Labour party split over belonging to what was then called the Common Market or European Communities (EC), Wilson took the membership issue to the people and won the vote with broad support across the political spectrum and the mainstream press.
The apparent political lesson: When necessary, you can turn to the people to quell internal party resistance and resolve important policy issues. But this “lesson” turned out to be a dangerous illusion that falsely assumed that the people would either always follow the Prime Minister’s lead or know what was in their best interests.
Fast forward to 2016, and Wilson’s strategy backfired on Cameron. The voters did not follow Prime Minister’s lead and voted narrowly to leave the EU. Instead of resolving the problem and quieting the critics, Cameron’s appeal to the people made it worse. The Prime Minister immediately resigned and handed the whole matter over to Theresa May. So now we have a revised political lesson: Don’t ask for a popular vote unless you are sure you will get the answer you want from it.
But this discussion begs the deeper question of why one of the oldest and most stable representative democracies has not only ceded a critical policy decision to the public twice but is now contemplating doing it a third time? We Californians have certainly done our best to demonstrate to the rest of the world the folly of letting the people decide complex matters of policy and public finance. Did the Brits not get the memo?
Prior to 1975 in Britain, the idea of letting the people decide important policy matters was never taken seriously. Since then, there have been three national referendums in the UK, eleven major referendums within the separate UK nations on matters such as devolution, and a number of local government referendums under the terms of the 1972 Local Government Act. It brings to mind the work of Professor Russell Dalton, who in tracking the recent rise in the number of elections in advanced democracies found that the fastest growth category was direct democracy contests. The pressure to consult with the people is growing among many modern democracies, not just the UK.
Even so, it was not preordained that British referendums would or should be taken as seriously as they apparently are. National referendums in the UK are only advisory. The doctrine of parliamentary sovereignty still holds, which means that the government is not bound to follow the people’s advice.
Moreover, the people’s advice regarding the EU has at no point been clear or stable. Neither the leave nor remain position has ever achieved 50 percent approval in public opinion polls, and the number of “don’t knows” or “would not votes” on the matter hovers near 16 percent despite nonstop coverage of this topic. Nonetheless, the latest idea is to have yet another referendum and let the people give their ambiguous advice once again in the hope that it will rescue a government that has tied itself in knots over this question. Good grief!
In some ways, the EU crisis resembles the U.S. health care debate. Like the Tories, the Republicans cannot agree on how to replace what they are committed to opposing. Despite having control over all the branches of government after the 2016 Presidential election, Republicans were unable to come up with a bill to replace Obamacare.
This would be less problematic if the Republicans were not concurrently using the courts to dismantle the health care system before they even devise an alternative. So just as the Tories invoked a withdrawal process with the EU before they had any serious plan for how to deal with the consequences of getting out, the Republicans are planning on withdrawing from the ACA without any consensus on how to replace it.
Even if political stupidity is the core Brexit problem, there is still at base an important institutional question about whether advisory votes and other forms of direct democracy have a role in representative democracy systems.
The British version of direct democracy differs from the United States in several ways. First, the United States does not have any direct democracy options at the national government level. Americans can thank the high barriers to U.S. constitutional change for that blessing. But at the state level, there is a wide variation in the types of permitted direct democracy measures, including legislatively referred statutes that resemble the British referendum.
At the same time, many states also allow citizens to put both state statutes and constitutional amendments on the ballot, and these typically preclude or constrain the ability of their state legislatures to overturn a citizen-initiated measure without going back to the people again.
So, in some respects, the British referendum looks less dangerous to representative democracy than the U.S. citizen initiatives. However, if the British governments act as if their referendums are binding, then the distinction between the U.S. citizen initiatives and the UK referendums blurs. In a political system that relies on norms, customs, and established practices, a precedent can become a democratic custom without much discussion or debate. To riff on Rumpole of the Bailey, parliamentary sovereignty has surreptitiously been ceded to they “who must be obeyed.”
I discuss this dynamic in my book Democracy More or Less. The evolution of modern democracy is toward expanding citizen opportunities to observe and participate in many levels and branches of government. In the U.S. states, the expectations of more direct democracy have mostly been imposed on elected officials in the wake of scandals thanks to the ease of altering state constitutional structures. In the UK, as deference to leadership has eroded, the tactic of using the people to tame political opponents is a risky business at best, and will likely have the unintended effect of ratcheting up future expectations of direct democracy.
As we have learned in California after a century of direct democracy experimentation, citizen capacity and attention is limited. Asking citizens who do not know even basic facts about the state budget to determine specific matters of appropriation and taxation leads to serious structural fiscal dysfunction. Similarly, there is no reason to think that many members of the British public will have studied the complex matters related to EU membership deeply.
If the Brits are destined in the future to tread ever more deeply down the direct democracy path, they would be well-advised to learn a few lessons from the U.S. experience. First, do not make critical decisions with a mere majority vote. A 52 percent referendum vote is a weak mandate at best, and, as we have seen, one that is likely to wax and wane over time. Consider adopting a supermajority expectation to advisory votes to ensure that there really is a consensus about what the public wants.
Secondly, do not let referendums replace representative government. In the end, representatives need to make choices, even if it entails the risk of getting voted out of office. If the government cannot make up its mind or come up with an alternative, then the fallback position should be the last choice made by that representative democracy—in the Brexit case, remaining in the EU. If the party in power cannot find a direction away from the status quo, then so be it. Sometimes, representative government is incapable of acting competently, and citizens have to live with the consequences. But asking the people to do the job of governing for them is asking for even more trouble.