Why referenda are a fundamentally bad idea
As the Brexit debate rages on, it’s important to consider whether or not referenda are constitutional, if they have a legal basis, or how democratic they really are. Much of the debate now surrounds a second referendum, but to what extent should the first referendum be followed?
Constitutionality and Legality
One of the most intriguing debates about referenda, particularly within the UK, is whether or not they are constitutional. The reason for this is that the UK’s constitution is uncodified, and as such, there is no clear indication that they shouldn’t be allowed.
However, this much is clear about our constitution: our democracy is a representative one, as are almost all democracies. This means that we directly elect people to make our voice heard, and, in the UK, this is through the First Past the Post system.
In general elections, we vote for a representative for our constituency, and they translate our views and concerns into votes on policy, using their expertise.
This is the fundamental idea of representation — electing people who are better-informed about politics than the public who make our decisions for us. With our very direct system of it, flawed though it may be, there is no real place for national referenda on key issues.
Whether or not that sits well with you is almost irrelevant, because that is how our democracy should, in theory, work. To ignore that fact is to undermine our democratic institutions — which, not coincidentally, is what referenda were actually designed to do (see “Further Proof that referenda aren’t truly democratic at all” below).
Moreover, if a referendum is non-binding, then it doesn’t actually have to be followed. It is merely advisory to the government, and has no obvious legal grounding. This generally leads to a muddled process in which no-one knows exactly what should happen.
In the case of Brexit, this was all too clear.
If the government is to hold a referendum, it should really consider setting out what the result will mean before it is actually held.
First, it should’ve been set out what leaving does exactly — is this staying in the single market, being in a customs union, or a clean break entirely? Voting Leave was essentially like a lucky dip — not particularly compatible with democracy.
Second, the legislation should’ve been clear about how many referenda there were to be: one; two (an initial mandate and then a ratification referendum); or best of three.
Instead, the government sort of picked one but didn’t make it entirely clear, so we could technically have as many as we want.
This isn’t to say we should now go out of our way to ignore the result — it happened and is now in the past — but there are some crucial lessons to be learned for the future.
Can they be reconciled with the idea of a balanced democracy?
The short answer is no, not really.
A balanced democracy means to give roughly equal power to the people, members of elected assemblies, and the executive. The reason that this is better than a direct democracy, in which people vote on all of the key issues, is that people are usually ill-informed about and lack expertise in politics and policy.
The concept of a referendum completely ignores that fact. That is why the US constitution, designed for checks and balances on the power of different groups, doesn’t allow for federal referenda. The case in which a referendum is allowed in the US is when a state wants to ratify a decision, not just gauge opinion.
The idea of a ratification referendum is far better than what is essentially an opinion poll. Ideally, they should be used in tandem: an initial referendum should provide a mandate to the government, and then a second ratification referendum.
This gives people the crucial ability to change their minds based on a changing situation — this is why we have general elections every 5 years (give or take a couple of years for other countries).
It would be slightly odd if the government decided that we were going to have one election and no more, until someone came under political pressure to call one. And yet, this is what happens with referenda. The two we have had about leaving the EU were separated by 41 years.
Who’s to say that we won’t get a chance to change for another 41 years?
Another glaring problem is that they boil extremely complex issues down to a simple Yes or No, and sometimes include one or two extra options
To use the EU referendum as an example once more, we can see how flawed this concept is by looking at the different options available to the country:
- Stay in the EU and carry on as we were
- Stay in the EU but attempt to reform the organisation more so
- Leave the EU and join EFTA
- Leave the EU but stay in the single market and customs union
- Leave the EU and join a customs union with a comprehensive trade deal
- Leave the EU and form a customs partnership with a comprehensive trade deal
- Leave the EU and form some sort of a trade deal for some industries
- Leave the EU with no future arrangement deal
That’s eight different options, and there are plenty more. Yet the ballot paper showed only two. Even worse, these two were very broad options — covering all of the eight above between them. It could’ve been made much better by having a ranking system of several different options to determine the best.
Further Proof that referenda aren’t truly democratic at all
They were popularised by Napoleon Bonaparte in early 19th century France as a way of solidifying his autocratic power as emperor — and we don’t usually consider the idea of dictatorships as “democratic”, do we?
The idea behind using referenda was to bypass any need for elected assemblies in the mission of appearing democratic, so as to not restrain the Emperor’s full and complete power.
Charles de Gaulle, the President of France from 1959 to 1969, designed the French Constitution, which allows for referenda and often necessitates them. For example, to amend the Constitution, the agreement of both houses of Parliament and a simple majority in a referendum are needed.
However, de Gaulle was a fervent supporter of referenda not because of a love of democracy but rather because he hated elected assemblies due to the constraints they put on his power. This is why, in 1962, he ignored the legislature and put an amendment straight to the people in a referendum — causing almost presidency-ending controversy.
Also not particularly democratic.
As a general rule: if someone invents something, it is probably compatible with their views. Therefore, a referendum isn’t democratic at all, and rather a tool used to settle political scores (as with the Brexit referendum) or to bypass true democracy.