The Referendum now poses a serious threat to Parliamentary Democracy

Forget about the online petition. We do not have government by petition, particularly not when we don’t know how many of the online signatories are even British, or are duplicates, or computerised bots or in some other way bogus. No matter how many signatures the petition garners it will not result in a re-run of the referendum, and nor should it.

Forget too about Members of the Scottish Parliament metaphorically flooding down from the Cheviots, sgian-dubhs flashing in the pale northern sunlight, rushing to save the Sassenachs from the consequences of their folly. The argument – publicised and explained here by the ever-lucid Jolyon Maugham – is rather complex and explained better by him than by me but essentially it’s this:

02-2012 - The Battle of Prestonpans - AWEN
Bonnie Prince Charlie addresses his Highland warriors shortly before defeat at Culloden

The Scotland Act 1998 contains a provision that the Scottish Parliament cannot do any act inconsistent with EU law. Under what is still called the Sewel Convention (even though Sewel himself is only slowly recovering his reputation since he was photographed wearing an orange bra and snorting cocaine in the company of a prostitute) and is now S.28 (8) of the 1998 Act:

it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

Withdrawing from the EU would affect “devolved matters,” thus any legislation to do so would (normally) require the Scottish Parliament’s consent. Nicola Sturgeon today said in very clear terms that she would encourage it not to give this consent, and indeed it seems inconceivable that Holyrood would do so if asked. Accordingly, runs the argument (if I have grasped it correctly), the UK Parliament could not lawfully pass the legislation that would be necessary for it to leave the EU.

(As a strict matter of law legislation is not needed to “leave the EU.” Britain is a member by virtue of treaties, and making and breaking international treaties is a matter of Royal Prerogative, exercised by the Prime Minister, not by Parliament. On the other hand legislation would be necessary to repeal the European Communities Act 1972, otherwise Britain could conceivably find itself in the bizarre position of being outside the EU yet bound to follow EU law.)

Maugham himself does not think much of the Sewel Convention argument: he points out that S.28 (8) contains the weasel word “normally,” and withdrawal from the EU would be a highly abnormal state of affairs. I am sure he is right, and there there is surely an even more fundamental objection. A cardinal principle of British constitutional law is that a Parliament cannot bind its successors. The Sewel Convention, embodied in statute though it now is, is still just a convention. Should the Westminster Parliament decide to pass a statute inconsistent with it, it could certainly do so. At most the legal effect of S.28 (8) might be to create some sort of rebuttable presumption that Westminster does not intend to legislate on devolved matters unless it does so expressly; but of course any Act effecting withdrawal could, and no doubt would, make that intention express. It could, for example, include words such as “without prejudice to S.28 (8) of the Scotland Act 1998 ….” It could even repeal the Sewel Convention.

That said, Holyrood’s refusal to consent to withdrawal legislation might have some political effect. Pro-EU Westminster MPs could perhaps argue that imposing this unwanted legislation on Scotland was constitutionally improper because it ignored the Convention. I suppose that might encourage a few of them to vote against withdrawal, notwithstanding the referendum result.

Similar arguments apply to Northern Ireland which also voted to Remain. There might even be constitutional arguments for saying that, in the absence of consent from the Northern Ireland Assembly, Westminster ought not to impose withdrawal on the province. Ultimately, however, there is no doubt whatever (in my mind at any rate) that it has the power to do so.

So neither Scotland nor Northern Ireland will, on their own, be able to keep Britain in the EU if the UK Government decides to leave.

A completely different, and much more powerful argument has been advanced by David Lammy, the Labour MP for Tottenham. He points out, as have many others including the doyen of legal bloggers David Allen Green, that the referendum itself has no legal force. It was advisory only. Ironically, given that Parliamentary sovereignty has featured so prominently in the Leavers’ arguments, he invokes that principle to argue that MPs are under a duty to make up their own minds, and in his case ignore the referendum result:

Wake up. We do not have to do this. We can stop this madness and bring this nightmare to an end through a vote in Parliament. Our sovereign Parliament needs to now vote on whether we should exit the EU.”

Of course he is right as far as the constitutional role of an MP is concerned. He or she should listen to the advice of the electorate, but is not obliged to follow that advice. On the other hand, he is unlikely, for the time being, to persuade many MPs to join him in voting against the clearly expressed wishes of the country as a whole.

A more typical line has been that taken by Guy Opperman, the Conservative MP for Hexham.

The people have spoken and we must accept the result. I wanted to remain in the EU, and campaigned hard locally, regionally and nationally on the issue, but fully accept the result. My job is to work day and night to make sure the country comes together, that the government gets on with the business of running the country, and we sort out the business of the renegotiation with the EU.

Referendums have a legitimate place where popular endorsement is sought for a decision that Parliament has made. They are far more problematic when they are used as a tool to force Parliament to do something that it would not otherwise do.

The difficulty here is that the people have said only that they want to leave the EU. They have not agreed to any particular exit agreement. For this reason Mr Opperman’s line cannot hold very far into the future.

For example, some of the Leavers appear to want a Norwegian style arrangement involving access to the Single Market, accepting (and in some cases even welcoming) the freedom of movement that comes with that. Daniel Hannan, for example, startled many at the weekend when he said that even after Brexit there might be similar numbers of EU immigrants coming to Britain.

For others, getting rid of freedom of movement is the very reason that they voted to Leave. They would certainly accept exclusion from the Single Market as a price worth paying to keep lots of foreigners out.

Boris Johnson this morning tried to reconcile this contradiction. He called for “access to the single market” and a Europe where:

British people will still be able to go and work in the EU; to live; to travel; to study; to buy homes and to settle down.”

At the same time, he said, the British Government would

take back democratic control of immigration policy, with a balanced and humane points-based system to suit the needs of business and industry.”

In other words Brits would be able to move freely around Europe but Europeans won’t be allowed to move freely around Britain, unless they qualify under his, er, “balanced and humane” (and no doubt also “arbitrary and bureaucratic”) immigration system. Good luck with that one, Boris.

There is no possible Brexit deal that can possibly satisfy both camps, and certainly not Boris’s fantasy. Their objectives are mutually exclusive.

For this reason many Leavers will feel somewhat aggrieved, and probably betrayed, by any possible leaving agreement. It is at that point that Parliamentarians will face a true dilemma. Does an MP like Guy Opperman simply vote in favour of any agreement, no matter how poor he thinks it is and no matter how much he disapproves of it, merely because an advisory referendum a year or two (or four) earlier had narrowly supported the principle of leaving? Does he do so irrespective of the fact that circumstances will have changed, and in the belief that to do so will bring misery to his constituents; does he do so in the knowledge too that it is directly contrary to the wishes of half the countries of the United Kingdom, and that as a result it may well lead to the disintegration of the Kingdom? If he does, it will be an abdication of what he was elected to do: to use his own judgement in order to best further the interests of his constituents and the country as a whole.

The duty of an MP in a Parliamentary Democracy was never better put than by Burke in his speech to the electors of Bristol in 1774:

Edmund Burke picture

It ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiassed opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion….

To deliver an opinion, is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience, these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution.”

That, of course, is the constitutional principle upon which our Parliamentary democracy is based. MPs betray their constituents if they vote against their consciences. For many, that is the crowning glory of the British constitution.

When Boris Johnson, or Theresa May or whoever it is, returns from Brussels waving a piece of paper containing what may be a very bad deal for Britain, we shall see then whether we live in a Parliamentary democracy. If we do, MPs should vote it down.

On the other hand, if – on what will be perhaps the most important vote of their political lives – MPs feel constrained to keep quiet, to set aside their consciences, their backbones and their self-respect to vote in favour of something they oppose, merely because of the results of a referendum, then we will know that British Parliamentary democracy is dead, its throat slashed by a referendum.

It will be scant consolation that the razor responsible will have been an all-British blade, originally unsheathed to defend that very democracy from foreign attack.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

24 thoughts on “The Referendum now poses a serious threat to Parliamentary Democracy”

  1. I think it’s quite likely that the “deal team”, which might well be *led* by Boris Johnson (for example), should contain cross party representatives, and not just Tory leavers.

    Much of that written is contrivances designed to frustrate the vote of the country. Most of those writing those contrivances do not understand why we are where we are. I was born 10 miles from Hartlepool, so I’ve a pretty good idea why 70% of them voted leave ; it’s not racism, austerity protests, poverty or any of the other excuses. Many of those caterwauling – for example the asinine Telegraph article bemoaning the Italian owners of some cafe in London, probably haven’t been outside the M25 for years. Either that or they have zero understanding or empathy.

    My first thought actually was it was like a child in a tantrum through being ignored who acts out “Okay, maybe you’ll listen to THIS”.

    In many ways it is. But it’s been coming a long time. A political body (especially Labour) who weren’t completely up their own rear ends could have seen this coming in 2015.

    They’ve only themselves to blame.

  2. David Lammy is a nasty elitist who wants to ignore the will of the people. To ignore the result of the Referendum would be deeply tyrannical and would be seen as an outrage across the whole world.
    We have heard far too much about what that jumped-up Nicola Sturgeon thinks. She actually got very few votes – the population of Scotland is less than that of Yorkshire, and it has far too many MPs. Time for it to lose its Barnett Formula handouts and its seats at Westminster.
    It is dictatorship from Brussels that “Poses a Serious Threat to Parliamentary Democracy”. To pretend you care about parliamentary democracy, then suggest that we should accept rule by unelected Brussles bureacrats is, frankly, absurd. We never chose to enter a superstate, and we have now voted to leave it. If politicians try to ognore the will of the people as expressed in this referendum, they will face anger, incredulity, global disapproval and mass civil disobedience.

  3. I think it’s good there has been a shake up so that constitutional issues and the meaning of parliamentary democracy need to be aired. But just as many leavers were not sure of what they were voting for, so it is that many remainers were unsure of what they wanted from the EU. There was little argument as to endorsing anything other than an advantageous trade agreement. Thus if it transpired that a deal could be negotiated with the EU and other states that satisfied advantage without prejudicing student exchanges, work permits for Brits and retiring on the Costa del Sol I don’t see that a large number of remainers would not so agree. And this would be reflected in in the voting patterns of MPs.
    The real problem lies with the future of the EU with its structural rigidities centred on the Eurozone and the inability for individual states, on the one hand, to control their own currency, while having the freedom,on the other, to dictate public sector spending even though this might be wildly out of kilter with their own economic reality and other states who have to bail them out.

    Thus Greece’s unaffordable debt that restricts its own recovery cannot be written off by the German paymasters because it would be politically unacceptable to saddle Germans with the burden of Greek profligacy when they have played by the rules, paid their taxes and have not seen living standards or pensions rise in proportion to their actual output. And so the can is constantly kicked along the road in the hope that nobody will complain too much – ‘for fear of finding something worse’. But if the political problems are being exacerbated by this procrastination the worse option may be visited within.

    I have never seen the brexit option as a purely British problem . I am European too with extensive cultural and linguistic affinities to the continent. The wider picture must be addressed, and brexit is an important brave step on this way.

    1. No-one was being asked what was wanted from the EU. That was not the point of the referendum. The constitutional change being offered for public vote was not even supported by the Government or the majority of members of parliament. It was not a vote on the issues raised by the Prime Minister in his renegotiation, or any other set of proposals for reform. It was quite simple. Do you wish to leave or to remain? How can such a vote be held to be binding on Parliament when no-one knew what they were voting for by coming out? The only logical follow-up is to have a further referendum when we know what ‘out’ actually means and looks like.

  4. The Sewel convention alone may not be enough to allow Scotland to block Brexit, but a lack of political will to deal with the consequences of overriding it might do the trick. Both Conservative and Labour parties are in turmoil and are unlikely to have much appetite for tackling this issue in the foreseeable future. The lack of a clear Brexit strategy will also discourage this action – it would be hard to justify forcing Scotland to agree to an exit when they can’t know what that would involve.
    It’s a bizarre situation. I would argue that it’s not acceptable for Scotland to block England’s exit from the EU, but it’s also unacceptable for England to force an exit on Scotland that Scotland decisively rejected. My personal bet would be on England leaving the EU and Scotland remaining in it, but whether that would be as part of the UK (the “reverse Greenland” approach) or after declaring independence is uncertain.
    Meanwhile, I’m in England and being dragged towards an exit from the EU that I don’t want and voted against. I’m having to give some serious thought as to whether I want to stay here or move somewhere with a more agreeable political climate.

    1. I have no problem with Scotland having another referendum, possibly when Brexit becomes clearer.

      Sturgeon does not want it. She pretends she does to keep her fanatical voters on side, but even if the UKs EU membership can be “sideways transferred” – something that seems to be at least debatable, the SNP have the problem that their economic position is non existent.

  5. Thanks for the post Matthew, really interesting read.
    I’ve been thinking a lot about that Edmund Burke quote since the result came out, and what it can tell us about Parliament’s quandary. My view is that Burke’s words are precisely the reason why we shouldn’t have referendums in the first place – because you are right, we are a representative, not direct, democracy, and reasoned debate of elected representatives is an enlightened way to decide matters of national import. But having legislated for a referendum, I think that Parliament have, politically speaking, waived this right to act against the people. The duty of voting with their conscience was given to the people, and they duly exercised it, for better or worse (almost certainly the latter).
    Instead of debating, calling in evidence and using the variety of tools at Parliament’s disposal to decide on whether it would be in the national interest to remain in the EU, they delegated it to an overly simplistic referendum question, with no clear understanding of what happens now. Stupid, yes, but surely that was the exercise of their conscience?

    1. Yes, it was a bad mistake although I can well understand why it seemed like a reasonable gamble at the time. I think referendums can occasionally have a role to play in a representative democracy, perhaps to “entrench” (politically, not legally) an important constitutional change. A referendum on the Lisbon treaty (as many other countries had) would have been much better and clearer than this, and whatever the result it would not have caused this chaos of MPs having to do something, no-one knows what, but whatever it is most of them think they shouldn’t be doing it.

      1. Indeed. Brown famously refused to be photographed signing it with everyone else , because he knew what many of his own voters, let alone right-wing Tories, thought of it.

        I know virtually nobody who was impressed by the “this is a treaty, it’s not the same as the thing I said you could have a vote on”. It’s obvious sophistry.

        The problem is the hugely unrepresentative Labour MPs. Tory MPs are not too far from a split on remain/leave, whereas Labour appear to be almost entirely pro remain.

        The problem for them is outside inner London a lot of their voters are. I *think* this is the reason for the Benn-sacking led stuff over the last few days. Northern Labour MPs have suddenly clued in that they might end up being the Scottish Labour MPs in the next election. They have a harder job than the Tories, they’ve got to find a leader that people in Nuneaton might consider voting for, and that can keep the potential UKIP vote going.

        There are parallels obviously between UKIP and the SNP, and I think there is a thought process that is verging on the religious there, once you’ve kind of “bought the candy” then you are very difficult to shift.

  6. “rushing to save the Sassenach’s from the consequences of their folly.”

    The Apostrophe Police will be paying you a visit.

  7. One problem I have with the idea of MPs ignoring the referendum resultcomes down to this:
    -Many MPs campaigned in their constituency on a eurosceptic platform in order to fend off UKIP and get elected. Having got elected, they then ignored the views of their constituency in order to further their political careers. If you don’t accept this or believe this happened, please at least go and look at two maps widely available on the web: the map of the UK showing which MPs backed leave by region, and the map of the UK showing the results by region. There is a large discrepancy.
    So to favour what MPs think above the electorate is in some way to me saying you prefer to let narrow minded career aspirations trump representation.

      1. If MPs don’t represent the popular vote or their constituency it doesn’t seem to me like there’s much representation going.
        But then I suppose a lack of representation is a major reason why people voted to leave in the first place.

    1. Am i correct in the assumption that neglecting the fact that a referendum is advisory only opens up
      any outcome to possibly be contested in court. e.g. european court based on Lisbon treaty art 50. “constitutional requirements”. Lets presume a polish immigrant seeks justice in Strasbourg
      would any notification of intent as per art 50. be invalid. ?

      1. No, that isn’t right. Even if the referendum was shown to be entirely fraudulent with ballot boxes stuffed by underground Faragists that wouldn’t have any legal effect on the Government giving Art 50 notice. The referendum is just advisory, no more, no less.

  8. The whole mess boils down to Cameron failing to think through the consequences of an ill conceived knee jerk reaction before he opened his mouth and promised a referendum. This has ended with him falling on his sword with a toxic legacy to rival Blair’s albeit it for different reasons. I very much doubt he had this in mind as his legacy when he proposed the referendum. I also fail to see what the point was in holding a non binding referendum. I am also alarmed that absolutely no one on either side has any kind of plan to deal with what happens if we voted for Brexit as a nation which was just as likely as a vote to Remain. Talk about dumb, idiotic and short sighted although very much in tune with the current way of doing politics. It’s also reprehensible for the Brexiters not to have had a concrete plan for what to do if they won. They appear to have expected Dave to tidy up their mess for them which is really immature and irresponsible.

    1. I’m not sure that’s right for two reasons, one a pressure group (which is what the two sides are) can’t actually dictate government policy. Boris Johnson, who is actually a backbench MP (I think) and certainly not a senior cabinet minister can’t dictate that, and obviously people like Kate Hoey can’t.

      The government should have made contingency plans as to what would happen if the vote was to leave, if only a holding position. Basically “what do we do while we figure out what to do”. The complaint that there should be a fully worked out plan isn’t valid.

      For example, it was obvious that shares would drop and the pound (partly because they were priced for a remain boom), I actually thought they would drop a lot more.

      The other reason is that we are likely to be entering a negotiating period soon, and you don’t want to tip your hand early. If you have a position you will settle for, then you don’t want the opposition to know it. You may be conflating not having a plan with not telling you the plan.

      It’s rather like telling a car salesman what your budget is (one of the first things they ask often) because they then price up to and oversell that.

      The thing that is responsible, bizarrely, is the SNP. Cameron did not expect to win the 2015 General Election, and there were two likely outcomes, a Lab/SNP/others coalition or possibly a Con/Lib coalition again. In event (1) obviously what Cameron promised doesn’t matter, in event (2) it would be blocked by the Liberals. What they underestimated was firstly the size of the SNP swing, and also the dislike that the English had of what they perceived as a weak Ed Miliband manipulated by the SNP. Virtually all analyses of the election point to this (and the “in pocket” poster) as the move responsible for the Tory majority and a swing away from UKIP (why Farage didn’t win in Thanet – they hated the SNP/Lab idea more)

      Then he was stuck with it.

      He then screwed it up by adopting scare tactics. This was copied from ScotRef 2014 and GE2015 (threat of the SNP) but just came over as implausible – like yelling “you’re all going to die” repeatedly.

      It also is partly down to at least 10 years of “Gillian Duffyism”. Telling your voters (basically) that you don’t give a s**t what they think, and ignoring their concerns, because you think they’ll vote for you whatever. This is the real driver, not immigration per se, though not addressing immigration concerns is a strong part. But most actually don’t want them to go home, they just want to feel that there are some sort of limits.

      If the solidity of Dave C’s “promises” he got from the EU had been remotely plausible – I don’t think even Remainers felt they would actually be kept as they were not exactly cast iron – then the vote would have been 75/25 minimum. Even a fair chunk of the UKIP vote would have voted Remain.

      Many of the people caterwauling about the decision don’t know how the people in the North feel about it, or didn’t care (it’s finally dawned on them, hence all hell breaking loose in the last 3-4 days), because they don’t ever bother with places like Hartlepool (I was born 10 miles away, even though I’m a Tory). I wasn’t surprised the Labour vote abandoned the party position.

      It’s a bit like a child having a tantrum in some ways, and saying “Okay, you’ll listen to THIS”.

      If they had any brains they would have looked at Scotland and looked at the UKIP vote, and drawn a fairly obvious conclusion. They know now. The reason for the “coup” is not because of the referendum, but because its dawned on them that they might not have any seats left if they aren’t careful.

      I’ve said to one or two people that the petition is why they lost ; they say (incorrectly !) that the petition is after the election, but that approach – that mentality – basically we know better, we are ignoring everything you are saying because you are ignorant scum (which is still being repeated ad nauseam directly and implicitly) ; that is why we are on course to leave the EU.

  9. A very good contribution from Margaret Jervis above, and she is right that this vote will have repercussions for the entire EU. It may bring it down.
    Germany, Italy and France desperately need us to buy their goods. As stated so often in the debate, we buy more from them than we sell.
    Spain is in deep economic trouble, and desperately needs our holidaymakers to keep them afloat. If the EU commission tries to put any barriers in their way, tries to punish and exclude us. they will be harming their core member states and they will find more choosing to leave. Already in France 40% want to do that.
    Ms Jervis says “Thus Greece’s unaffordable debt that restricts its own recovery cannot be written off by the German paymasters because it would be politically unacceptable to saddle Germans with the burden of Greek profligacy”. Not entirely, the money Greece borrowed was largely spent on contracts with German firms who busily re-built Greece for twenty years. Germany also sold Greece a lot of arms. So it only lent money to get it back in its own pocket. And it has presumed to choose and dismiss elected Greek governments. The Greeks should rebel.

  10. Just to add this, paul says “(why Farage didn’t win in Thanet – they hated the SNP/Lab idea more)”
    It may have had a lot more to do with the fact that the Conservatives exceeded the legal expenses limits and used every possible crooked tactic to keep Farage out. Also clowns shamefully made a farce of the whole election by standing against him. The outcome is still being investigated.

  11. There is one part of this excellent article that I strongly disagree with – I believe referendums have absolutely no place in a civilized society.

    Referendums are blunt force democracy. A complex and far reaching decision has been reduced to a “yes” or “no”, with the rationale for either answer argued by a mass media machine which clearly has little to no interest in keeping people well informed but instead is trying to push a particular opinion.

    Even worse, referendums place important decisions into the hands of people unqualified to make those decisions. I know that sounds elitist, and probably anti-democratic, but bear with me for a second.

    Let’s say a man with chest pain was admitted to hospital. Three physicians see him, and make the determination he is having a heart attack and needs surgery to remove a blockage in an artery. But the “experts” in this case are only advisory, the decision on whether or not to perform the surgery falls to the public, who are asked to participate in a swift referendum via mobile app.

    The result is in – the people say “No” to surgery. The reasons are varied. Everything from “I get chest pain all the time and it’s just indigestion” to “Back in my day we didn’t have surgery and nobody complained” to “I don’t trust experts” are given for the “No” vote.

    But the experts are more or less unanimous, to not proceed with surgery will quite literally have grave consequences.

    What should we do? Ignore the referendum and operate? Or preserve the “sanctity” of public opinion?

    The argument could be made that the man himself should be allowed a say, although he is not an expert, because it is his life to lose, and this is the analogue of the referendum. I would counter-argue that a referendum doesn’t just effect the person voting, it effects everyone around them.

    We wouldn’t run a health system like this. In fact we wouldn’t run anything like this. We’re supposed to trust our experts to make decisions on whether to open up our chests and cut pieces from us. We’re supposed to trust trained professionals on whether to prosecute a particular suspect in a court, and trained professionals to hold the state to account to ensure the innocent are not deprived of their liberty. We’re supposed to trust diplomats and economists to work with representatives of other nations to secure deals to keep our economy stable.

    A referendum just overrules the judgement and experience of those who frankly know better, and subjects the entire population to a decision based upon at best the emotional state of the nation, the weather of the nation and whether anything interesting was on TV that day, and at worst outright propaganda and fraud on the part of our media.

    Schönen Gruss.

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