‘Bewitched, Bothered And Bewildered’

January 15, 2017 Picture: Dylan Martinez/Reuters.

“This article is part of The Critique’s January/February 2017 Issue “Stick It To The Man: A Year Of Anglo-American Populist Revolt Against A Changing Culture And An Obtuse Political Establishment.”

‘Bewitched, Bothered and Bewildered’[1]

The United Kingdom’s (U.K.) ‘Brexit’ referendum of 23 June 2016 was more interesting than most, though mostly for the wrong reasons, and not simply because of the unexpected and wholly indeterminate outcome. My approach here is to start with the logic of the referendum within democratic practice, and rather more importantly, democratic principles. I will then briefly reflect on the indeterminacy of the outcome to date, and conclude with some mordant reflections on ‘how to do better next time’.

Democracy: principles and practices

Democracy is rather unfortunately referenced by politicians, voters and even sometimes political scientists as a singular entity, well established in ‘Western’ countries and for that reason well understood. Those at the sharper end of civil conflicts all over the world, however, will have a more nuanced understanding of the complexities of principle and practice involved in constructing, reinstating, maintaining, and defending a polity which rates at least a decent place in the various league tables of democratic standing. The 60-or-more ‘indicators’ through which these tables are typically established and compiled annually make instructive but sobering reading.[2]

Rather than tour through these exhaustive data-points (and extensive data-sets) I propose to offer an analytical overview that might be helpful in considering what a referendum is and how it operates. This discussion will also work as a guide to thinking critically about the headline-claims and sound-bytes that politicians and pundits offer on the subject. The cast of characters in this discourse should sound quite familiar: ‘the will of the people’, ‘the majority’, ‘the electorate’, ‘the voters’, ‘the decision’ and, rather more abstractly, ‘sovereignty’.

Referendums are an interesting but far from universal practice within polities that self-describe, or are generally known as, democracies. This cuts out regimes which are self-confessedly autocratic, non-constitutional, absolutist, theocratic or otherwise monolithically authoritarian, where the concept would make no sense. We are thus considering a ‘republican’ constitution, in the sense that it is overtly non-monarchical (or in the later sense that any remaining ‘constitutional’ monarch acknowledges its ultimate supremacy). Or to put it the other way, for the concept of the referendum to make sense there must be some acknowledgement of popular sovereignty, such as ‘republican’ constitutions came over time to provide.[3]

The point of the principle of popular sovereignty, however, is not specifically to license ‘popular’ voting as the only way to make laws, or indeed the way to make any decisions whatsoever about constitutions, laws or policies. The point of the claim that ‘the people’ are ‘sovereign’ is instead to license a set of ‘republican’ institutions and practices (rather than named individuals and their hereditary or divinely sanctioned successors) as legitimated in the first instance, and legitimate after that, subject to continuing ‘consent’.[4]

Of course in any particular historical (or indeed current) circumstance, it is debatable (generally with civil violence and often ‘foreign’ interventions) who ‘the people’ are, what constitutes ‘consent’, and what exactly is being consented to by way of constitutional provisions such that government is legitimated to act in the ‘public’ (i.e. popular) interest. My point here is that there is no necessary connection between the principle of popular sovereignty and any use of the referendum at all (even to legitimate a constitution – though this is sometimes the practice).

The resolution of this puzzle – i.e. if the people are sovereign, why don’t they make all the decisions? – comes through an analysis of the ‘republican’, ‘mixed’ constitution as it has been operationalized since the late eighteenth-century. This development can be tracked from the world’s first written constitution, that of the United States of America (1787), and successor constitutions during the French Revolution (1789-93), but also through the development of monarchical devolutions of power to parliaments with or (as in the case of the UK) without a singular formal document (to date).

The ‘mixed’ constitution, as legitimated in opposition to monarchical or other authoritarianism, importantly made government ‘limited’ in its operation, as a foundational criterion, to ‘the public good’.[5] Besides separating law-executing from law-making powers, the ‘mixed’ constitution also provided – in eighteenth-century developments – for a diverse set of ‘representative’ institutions instituting ‘checks and balances’ within the apparatus of ‘representative’ assemblies (and eventually between those assemblies – at whatever level – and the independent judiciary, whether ‘supreme’ or ‘constitutional’ in remit, or both).[6]

The ‘mixed’ constitution evolved through a principle of representation and a practice of rule by assemblies of law-makers, coupled with an executive power of enforcement (and – most difficult to maintain of all – an independent magistracy or judiciary). This foundational principle of representation, and the ubiquitous practice of ‘indirect’ democracy, of course obviously contradicts the simple notion of ‘people’s rule’ (a literal translation of ‘democracy’).

The classical advocates of the ‘mixed’ constitution were overtly anti-democratic, since they regarded the ‘representative’ character of the assembly (or assemblies) involved as itself a bulwark against decision-making that could not, and should not, be trusted to ‘the people’ en masse (and until quite recently, of course only male people, and with further exclusions as well). Law-makers and day-to-day executors of the law – as well as the electors of these office-holders – were ‘representative’, by design, of only a slice of the population.

This slice of superior persons was distinguished in various ways and through various means from ‘the rest’. Since the eighteenth century mistrust of ‘the people’ has however been relaxed, and the various modes of qualification (for office-holding and electoral participation) have been largely dismantled – typically property, class, (lack of) education, race/ethnicity, religion, sex, age (in various degrees and for various purposes) and the like.

Mass electorates, though, have nothing in principle to do with referendums, or with the initial or subsequent ‘consent’ required to make or keep institutional regimes ‘legitimate’ through ‘popular sovereignty’. Rather the practice of having mass electorates (in some plausible – if generally flawed – sense of ‘mass’) has licensed the use of referendums to make decisions.

Referendums have come into play within this complex ‘mixed’ set of institutions in a way that cites ‘direct’ democracy as opposed to the ‘indirect’, ‘representative’ principles and practices described above.[7] Classically ‘direct’ democracy was despised and feared as the ‘rule of the uneducated’, who were variously parsed as unreliable, unprincipled, untrustworthy, unwashed and the like.

Moreover ‘the people’ in reality (as opposed to their invocation through the ‘representative’ principle)[8] were said to be easily swayed, particularly by orators and demagogues. Notable classical theorists and historians (from Aristotle to Machiavelli via Polybius and Livy) offered telling tales of chaos and slaughter that testified to this risk.

Counterbalanced to this tradition was a restiveness among modern mass electorates (‘represented’ by various politicians along the way) with the local track record of their assemblies and other institutions of these ‘mixed’ constitutions. Referendums (and/or plebiscites – the distinction isn’t a clear one) grew in favour as a short-cut and cut-off mechanism. And ultimately, and importantly for this discussion, as ipso facto an invocation of ‘popular sovereignty’.

Contrary to the historical and analytical discussion above, how could it be otherwise? What could be clearer, and more ‘direct’ democratically, than asking ‘the people’ a question, and getting their ‘sovereign’ answer?

The Logic of the X-Factor: votes and decisions

Here is where the logic of the referendum really kicks in. On the one hand the governmental structure which makes most extensive use of the referendum (known locally as ‘putting a proposition on the ballot’ or ‘voter initiative’) is probably the U.S. state of California. A ballot confronts the elector as a list of questions (with a helpful booklet explaining the terms and the consequences of a ‘yes’ or ‘no’ vote by electoral plurality on the given wording).

Since the logic here is one of ‘direct’ democracy, propositions can reach the ballot via the collection of electoral signatures to a qualifying number, and according to the state constitution the result is final: a legislative act is passed (or not) for enforcement by the executive and adjudication by the courts.

While there are a number of problems here already familiar from electoral procedures (e.g. campaign financing both to collect signatures in order to register the proposition and also to advocate either side of the question through the media), the problem specific to referendums as an institutional practice of ‘direct’ democracy arose over time. This was the problem of inconsistent results and resultant (further) frustrations within and without the ‘representative’ assemblies through which the state government was supposed to operate (at least with some efficiency, credibility and accountability).

Anyone, whether within or without a ‘representative’ assembly, can draft a badly worded, ambiguous or unworkable ‘proposition’ or ‘bill’ which can ultimately (or in the case of referendums, instantly) become law, or at least a decision to recommend a law to a ‘representative’ assembly to pass (or perhaps not?). What is interesting and pertinent in the case of the ‘Brexit’ referendum in the UK is the extent to which – elsewhere, evidently – there are services, advice, procedures, checks and scrutiny available to avoid such circumstances.[9]

Moreover the format for a referendum question isn’t – as a point of practice – fixed: various referendums in various countries have offered options, and the voting involved has been subject to various decision-rules in such cases.

And, again importantly, referendums may be binding in the constitutional sense of generating an instant law authorized by ‘popular’ sovereignty, or advisory in the sense of generating an obligation on a sovereign law-making assembly to take due notice of ‘the will of the people’. All previous UK referendums (only three country-wide since 1975, and eleven regional ones) have been of the latter sort, though the ‘sovereign’ parliament has never defied ‘the will of the people’ (but it hasn’t explicitly substituted ‘popular’ for parliamentary sovereignty, either).

The wording of the ‘Brexit’ referendum was announced and then revised after scrutiny. The initial question was posed as yes/no as to whether the UK should remain a member of the European Union (EU). It was revised to reflect what was argued to be a more neutral wording to sit next to two boxes (but only one ‘cross’ or ‘tick’ was allowed): ‘remain’ or ‘leave’. The official leaflet from HM Government that went out to households was explanatory on both sides of the dichotomy, but framed as argumentative: HM Government urged voters to choose ‘remain’.[10]

On the one hand this framing was truthful to the practice of parliamentary sovereignty, and of the executive’s role in parliament and in the executive agencies of government. On the other hand, and in other places, voters receive – after suitable scrutiny by independent agencies – an objectively worded and fair-minded phrasing of the terms and consequences of voting either way.

While civil service and parliamentary scrutiny of the relevant enabling act (and indeed press comment) may have raised these issues, it is evident from the final documentation that such options were rejected at the highest level (where records will be secret for at least 30 years, unless there is a public inquiry authorized by parliament – which is highly unlikely). Moreover a referendum-based but more thoughtfully – and prudently – organized procedure was certainly possible: an initial ‘testing of public opinion’ on the question. In the event of a ‘leave’ vote on this basis, then public debate, deliberation and scrutiny could have been set up for a limited period. After that, a definitive (albeit advisory) referendum could have been conducted, offering various options (and a decision-rule to determine a clear outcome, however the vote was set up and whatever the actual results). But as mentioned above, there is no public evidence to date that this kind of arrangement was considered.

The relationship between political campaigning and electoral decision-making is increasingly fraught with questions of personality and finances all over the world, and inevitably these questions arose during the ‘campaign’ period. What is interesting here, in terms of the logic of the referendum, is that the outcome is – in some sense – an act or acts of legislation (or in the cases, for instance, of Quebec and Scotland, a continuation of, or change in, a constitutional basis for state and government), rather than a ‘representative’ person or executive officer within the governmental structures of the time.

On the one hand, in the UK’s ‘campaign’ period the press and media attention swiftly focused on persons as ‘representative’ of either side (‘remain’ or ‘leave’) and on gradations within these supposed camps and coalitions. On the other hand, perhaps public anxieties expressed through the mainstream media – and particularly through social media – reflected an appetite for ‘facts’, and a frustration with the ‘lack’ of them, on both sides. (I myself signed an open letter to the Daily Telegraph to this effect – not something I generally do.)[11]

While HM Government could have claimed that its official leaflet was ‘factual’ (enough), the argumentative, parti pris framing was such that claims to factuality would not be credible, given the discursive line commonly drawn between partisan advocacy and impartial objectivity.

In fact … the whole issue of ‘facts’ within the ‘Brexit’ debates is interesting, because in a sense, there weren’t any. The facts of remaining were already in place, hence already familiar, unchanged by posing the question, and probably not much changed if the answer had been ‘remain’ (i.e. all the same issues would arise in the same way as they already had been doing over 40 years). In other words there was no new commitment to, or specific disengagement from, any EU procedures or policies outlined in HM Government’s leaflet promised by ‘remain’.

The facts to do with leaving were ‘factual claims’, which could be more or less plausible, given evidence-based argument and reasonable lines of speculation. Or in other words, the consequences of a ‘majority’ vote to ‘leave’ were wholly speculative.

While the consequences of voting for a person or a party certainly have a speculative component about a possible future – as indeed will any political judgement, decision or activity – the available materials from which to construct such a vision for the ‘leave’ side of the question were unusually (and necessarily) vague in the extreme. Campaigners for ‘leave’ constructed an array of potent but empty signifiers: ‘Take control!’ was perhaps the most notable and powerful, but ‘sovereignty’, ‘get our money back’, ‘£350 million a week on the NHS’, ‘no more Brussels red tape’ etc. all figured in press headlines, leaflets, posters and hashtags.

This phenomenon contrasts quite starkly with the previous UK-wide referendum (held in 2011) on changing ‘first past the post’ elections for MPs to the House of Commons to the ‘Alternative Vote’ (AV) system. That voting system can be objectively described, various factual consequences can be readily drawn out if the voting rules were to change, and the presumed outcome can be stated quite factually – Parliament would (most probably) take the advice from ‘the people’ and pass an act to put the system into place. The consequences of not changing could also be easily listed, simply because it was those evident consequences of the current system that led to various long-term campaigns to make a change (even if not necessarily for AV).

Known and unknown unknowns: through the post-Brexit looking-glass

My point here is not that a ‘fair’ campaign was impossible, or that the ‘leave’ campaigners were ‘lying’, or that the ‘remain’ campaigners were ‘weak’. My point is that all of the above consequences of a ‘leave’ vote could have been predicted, had thoughtful scrutiny of the (single act) referendum bill produced an outcome on the ballot paper(s) that had at least a chance of avoiding the now-disastrously indeterminate consequences of the vote of 23 June 2016.

While not comprehensive, this list of indeterminacies is quite fundamental. What does ‘leave’ actually mean? What does E.U. actually mean? What does ‘transitional arrangement’ actually mean? What does ‘E.U. legislation and regulation’ actually mean? What does ‘U.K. legislation and regulation’ actually mean? What does ‘Parliamentary sovereignty’ actually mean? What do ‘popular sovereignty’ and ‘the will of the people’ mean? And how many agencies are involved in (trying to) decide what all this actually means?

The involvement of the High Court, Supreme Court, devolved governments in Scotland, Wales and Northern Ireland, the international agreements relating to the Irish land border, and a further (and possibly successful) referendum on Scottish independence (given that ALL Scottish electoral districts rather predictably voted ‘remain’) are just a start on this side of the Channel. The indeterminacies on the other side of the Channel are actually business as usual, given that political horse-trading to make compromises over legislation, regulation, adjudication, ‘integration’ (or not), trade, business, taxation, and the like are what the EU normally does, and what it is for.

Political failure and ignominious downfall are not new in political history; David Cameron has lots of company. My question here is to ask how and why our UK representative (and non-representative) institutions of deliberation and scrutiny failed so badly.

Was this ‘sofa-government’ again? Sir John Chilcot drew this conclusion in his (lengthy) public Inquiry into the Iraq War fiasco.[12] But I think we’re unlikely to mount such a searching public inquiry into ourselves concerning such a domestically disastrous decision, given that we can’t isolate the disaster ‘out there’ in some foreign place. An inquiry into the ‘wisdom’ (or otherwise) of what (?) the 52% (majority?) have ‘decided’ (or at least advised) would not be a very sound idea. What is certain now is that we in the UK have arrived at a situation of bravado,[13] bluff,[14] bemusement[15] and – for me and others of ‘the 48%’ – ‘Brespair’.

Footnotes & References

[1] Lorenz Hart (lyrics), Richard Rogers (music), 1940.

[2] See, for example, http://www.eiu.com/public/topical_report.aspx?campaignid=DemocracyIndex2015 and http://democracyranking.org/wordpress/ <accessed December 12, 2016>

[3] For a brief overview of ‘democracy’ see John Hoffman and Paul Graham, An Introduction to Political Theory, 3^rd edn (Harlow: Pearson, 2015), pp. 99-117.

[4] The classic discussion is in the second of John Locke’s Two Treatises of Civil Government (Cambridge: Cambridge University Press, 1988).

[5] Locke, ‘Second Treatise’, §131.

[6] The classical expression of these views is in Alexander Hamilton, James Madison, John Jay, The Federalist Papers (New Haven CT: Yale University Press, 2009).

[7] For a historical view, see David Butler and Austin Ranney (eds), Referendums around the World: The Growing Use of Direct Democracy (Washington, D.C.: AEI Press, 1994).

[8] See the thorough discussion in Anne Phillips, The Politics of Presence (Oxford: Oxford University Press, 1998).

[9] The California Attorney General’s Office and the Legislative Analyst’s Office are both involved in vetting propositions before they go out for signature-collection.

[10] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/515068/why-the-government-believes-that-voting-to-remain-in-the-european-union-is-the-best-decision-for-the-uk.pdf <accessed December 16, 2016>

[11] http://www.telegraph.co.uk/opinion/2016/06/13/letters-both-remain-and-leave-are-propagating-falsehoods-at-publ/ <accessed December 12, 2016>

[12] http://www.iraqinquiry.org.uk/ <accessed December 12, 2016>

[13] E.g. ‘Let’s take back our Great Britain!’ https://www.scottmann.org.uk/lets-take-back-our-great-britain <accessed December 12, 2016>

[14] ‘Red, white and blue Brexit’ (Theresa May, Prime Minister), https://www.theguardian.com/politics/2016/dec/06/theresa-may-calls-for-red-white-and-blue-brexit <accessed December 12, 2016)

[15] See any of the John Crace (humorous?) columns in the Guardian, e.g https://www.theguardian.com/politics/2016/dec/14/david-davis-hopes-brexit-platitudes-pass-as-a-brexit-plan <accessed December 12, 2016>