If public opinion had shifted as much as many proponents of a second referendum claim, or certainly would like, there would be little question about the legitimacy of a second Brexit referendum. Faced with an overwhelming change of heart, few would claim that a previous vote should be considered forever binding on ourselves and future generations. Unfortunately, we probably do not find ourselves in such a situation. Rather, we find ourselves in one where demographic shifts and subtle but significant changes in particular voting blocks make a second referendum increasingly politically feasible and winnable, albeit likely by a narrow margin. This understandably leaves many remainers feeling uneasy: increasingly tempted by the idea, but still with some residual feeling that a second vote may be undemoractic. This piece aims to allay such fears. It will not claim that a second vote is politically possible (though this does seem increasingly likely); it will, however, claim that such a vote is both legitimate and consistent with the underlying principles of a pluralist liberal democracy.
The first question we might ask is where the legitimacy, validity or usefulness of an election or referendum comes from. Possible answers would be some combination of the following: representation of individual and collective interests, government accountability, legitimate exertion of political power coming through consent and facilitation of popular political participation or empowerment. Let’s leave aside the question of how convincing these ideas are individually, how they combine or should be prioritised. The point is that none of them arise from a single voting process, and all of these can be hindered, rather than served by any particular vote, depending on how the electorate is constituted, the legal and constitutional framework of the vote, and the question or policies on offer.
Why is this? Imagine a vote on explicitly whether to disenfranchise some portion of the electorate, which happens to be in a minority. This is not hard to imagine, as it is has happened historically. Clearly we would see such a vote as (at least potentially) illegitimate, regardless of the size of the majority. It is for this reason that whether or not we believe in an explicit and written constitution, most people have some idea of the legitimate realm of political power and the realm of personal choice and freedom. At the very least we see certain decisions as better taken individually rather than collectively, and certain actions of a majority as oppressive rather than emancipatory. In a less dramatic way, we see this when thinking about the location of political decisions; it seems perfectly reasonable that some decisions are taken by the Scottish government rather than in Westminster, some by local councils rather than a national government, some by trade unions or school boards rather than distant parties who may happen to cast a vote in a putative election and indeed some not taken collectively at all. If we did want a more extreme example of the location and constitution of the electorate mattering, we might imagine the following: what if the government of the People’s Republic of China decided to hold a referendum on the annexation of Taiwan? One would scarcely argue that a billion votes in favour made it a fair or good course of action, even if Taiwan’s 23 million inhabitants were in fact given a vote.
Does this mean that election results can just be disregarded if they are deemed to be illegitimate? No, not at all. It means the meaningful question about what a democracy should look like is a systemic question, not one concerning an individual vote or some mystical notion of a popular will. It means that the real questions (and they are real, and difficult) are about the location of decisions, the constitution of the electorate, the realm of legitimate political action (should, as some left wingers argue, there be a ‘democratisation’ of the economy?).
Crucially, any functioning system will require in all or almost all cases that results are implemented. The point, however, is the reason for this is systemic rather than moral or specific: it is about having a system based upon rules which are respected, predictable and viewed as (at least partially) legitimate. The 2016 referendum had no such systemic status. There was no meaningful legal status of the referendum, what it meant for it to be implemented, or how this was to be done. This has a number of implications.
Firstly, it means that the usual reason to respect the result is simply not there. Not implementing the result would have no obvious systemic implications, would interfere with no future parliamentary elections, would set no legal precedent and would set little political precedent other than the one that legally undefined referenda do not have to be implemented. Unless we want to make the case that referenda are a good idea in general, the negative implications are not clear.
Secondly, it means that the significant democratic implications of the referendum flow from its practical consequences. These are anything but positive. Because of parliamentary arithmetic and the absence of a legally defined implementation process, Brexit has understandably led to an executive power grab, albeit one partially checked through legal challenged such as Gina Miller’s. Moreover, this absence of a clearly defined legal implication of the referendum means that the typical separation of opinion about a result and opinion about legitimacy of a result is not there. Brexiteers are not entirely wrong when they argue that criticism of Brexit may result in it not being implemented, in a way which would not be true of a normal parliamentary election result. It is in light of this that demogogues can envoke “the Will of the People”, and opponents as treasonous saboteurs. This is extraordinarily corrosive and damaging to the countries political culture and ultimately to any form of democratic pluralism.
Finally, we might consider the process itself. This was one where many of the most affected stakeholders were precisely those who were disenfranchised (EU citizens in the UK, UK citizens abroad), and where we might well even question whether their acquired rights could legitimately be up for question anyway. There is of course then the nature of the campaigns, dominated by flagrant lies, demonization of outsider groups, at times reveling in the thought of harm that might be brought to them (albeit with enough assurances to allow for the kind of cognitive dissonance we all face when wanting something somewhat morally transgressive), not to mention outright campaign finance violation etc.
These would not normally be sufficiently convincing arguments to do something which upended a system of repeated elections, but given that here this is not in question, a different question arises. Do we want these strategies to be rewarded politically, not just as effective, but as things we treat with deference? Do we wish that so much as to bind ourselves in future, in a way we would never normally do with a parliamentary election held every few years? Practicalities may well mean that in reality many decisions are irreversible. But this should not mean that we artificially impose additional moral restraints where practicalities imply no such necessity. Whether in reality a second referendum is achievable or desirable is a difficult question. But it should not be regarded as illegitimate; indeed, to fail to have one may well be uniquely corrosive to the political norms which make democracy worthwhile.
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