Wednesday, January 16, 2019

A Second Brexit Referendum Would Not Be Undemocratic

by Michael C. Dorf

Now that Parliament has resoundingly rejected the Brexit deal that PM May negotiated with the EU, a replacement deal seems highly unlikely. EU authorities could make some token concessions or give some nice-sounding reassurances, but the margin of defeat strongly indicates that nothing to which the EU could reasonably agree would come close to satisfying the coalition of (mostly Tory) Brexiteers and (mostly Labour) Remainers who voted no yesterday. Other than another vote on more or less the same deal with what most observers expect would be more or less the same outcome, that leaves two main options: (1) crash out of the EU without a deal, a chaotic process that would have very harmful economic consequences and potentially harmful political consequences at the Ireland/Northern Ireland border and/or elsewhere; or (2) remain in the EU after all. Here I want to explore option (2).

One way for the UK to remain in the EU would be for Parliament to simply ignore the result of the 2016 referendum. The UK was under no obligation to hold a Brexit referendum in the first place. When Parliament authorized such a referendum in 2015, it did not commit to abiding by the result. And even if the 2015 Act had so committed, the commitment could not bind a later Parliament, which could simply override it. Why is no one talking about this possibility? Presumably because everyone assumes that Parliament is either bound as an unofficial matter to follow through with Brexit, given the 2016 result, or because most people think that as a political matter, Parliament cannot unilaterally pull the plug on Brexit.

Accordingly, nearly all of the discussion of remaining after all assumes that there would be a second referendum. That brings me to a curious but surprisingly widespread argument one hears against a second referendum: that it would be undemocratic. Here I want to examine that argument. I'll conclude that despite some superficial appeal, it is unpersuasive.

Let's begin with the superficial appeal. Suppose that two friends decide to toss a coin to decide which one will receive some indivisible good that they share but that each one wants--let's say a concert ticket. Winifred calls "heads" and wins. Rather than immediately concede, Louise says "two out of three?" Or worse, Louise says that she really wants the ticket and demands a do-over, with the expectation that if she wins the second toss, she gets the ticket, even though the score will then be tied at one win each. Louise is acting unreasonably. She and Winifred agreed to a fair procedure, and she is now trying to undo the result of that procedure simply because she lost. Indeed, to the extent that we think of a random choice mechanism as democratic (the ancient Athenians did and, to this day, tie elections are sometimes resolved by coin toss), Louise is acting undemocratically.

But is Louise the sore loser really an appropriate comparison for those Labour MPs and other who want a second referendum? Let's consider some disanalogies.

Winifred and Louise agreed ex ante to be bound by the single toss of the coin. By contrast and as noted above, in the 2015 Act authorizing the Brexit vote, Parliament made no commitment to be bound by the vote. True, then-PM David Cameron spoke and acted as though he intended to be bound by the Brexit vote, but to state the obvious, Cameron lacked the power to bind a future Parliament or even the Parliament he led. So unlike Louise, MPs and others now seeking a second referendum would not be reneging on what was an official commitment.

To be sure, there is a fairly long tradition of Parliament treating referenda on major questions--especially those concerning the nature and representation of the polity--as effectively binding. And indeed, it would be more than a bit destabilizing for Parliament to treat every law that is nominally repealable by simple majority as lacking a strong presumption of continuity. As a formal matter, the UK has parliamentary supremacy. According to the standard formulation, the King or Queen in Parliament can make any law. Yet the UK (like England alone before it) has long had an "unwritten" constitution that accords certain fundamental acts of Parliament a de facto entrenched status. Yes, a simple majority vote in Parliament could repeal the Human Rights Act of 1998. Or, even had there been no Brexit vote in the first place, Parliament could have simply withdrawn from the EU on its own. However, for good reason, various unofficial conventions make some actions that fall within Parliament's official powers outside its actual powers, at least absent extraordinary circumstances.

Accordingly, we might concede that there was at least an unofficial commitment to treat the first Brexit vote as binding. But the key question is exactly how Parliament (informally and unofficially) bound itself.

To answer that question, consider a thought experiment. Suppose that the first Brexit vote had come out the other way. Suppose further that within a very short period after the triumph of Remain, one after another EU country elected a far-right government. (So far, this aspect of the example is not all that hypothetical.) And suppose that under the influence of these far-right governments, the European Parliament and European Commission began enacting draconian and racist policies that people in the UK found repugnant. Even though the Remain vote had triumphed just a few years earlier, it would be perfectly appropriate for Parliament to authorize a second referendum. Why? Because circumstances would have changed.

The reality is something like the mirror image of my hypothetical example. When UK voters chose Leave in 2016, they likely expected to leave in an orderly fashion. Just as the voters in my hypothetical did not vote to Remain forever in a fascist EU, so the actual voters in 2016 did not vote to Leave the EU amidst chaos. In both the hypothetical and real cases, going back to the voters is a way of saying now that we all have a better idea of how it's going to work, do you want to reconsider?

We can acknowledge that authorizing a third, fourth, and fifth Brexit referendum because the voters chose "wrongly" would be simple sore-loser-ism. But Parliament is not (anywhere near) there yet.

Furthermore, there is something perverse about invoking democratic principles in order to deny voters an opportunity to change their minds. The phrase one person, one vote, one time describes undemocratic regimes that come to power using democratic means. It is inherent in democracy that laws can be changed.

There are exceptions, of course. Article 79 of Germany's Basic Law disallows amendment of the Basic Rights set out in the first 20 Articles. Article V of the US Constitution makes amendment of the Senate effectively impossible. But these extraordinary provisions are controversial precisely because they violate the default democratic principle that in a democratic system, ongoing consent legitimates government.

Finally, a second Brexit referendum would be consistent with democracy in another sense. Voters who think that Parliament was disrespecting the first Brexit vote by authorizing a second could vote Leave. And regardless of the outcome of a second referendum, voters who thought that Parliament acted improperly by authorizing it could cast votes for different MPs in the next parliamentary election.


Michael C. Dorf said...

Roger Cohen makes the policy case for a second referendum @

David Ricardo said...

Up until yesterday's vote a second referendum would not have been appropriate, as the elected body of Parliament had a duty and obligation to negotiate a Brexit and approve it. However once that effort failed then the public should be given an opportunity to vote again on whether or not they wish to go forward with a Brexit, as the effort to reach an agreement with the EU has failed and the public now knows much more of the issues, problems and impact of both staying and leaving.

Regardless of one's position on Brexit or like/dislike of Ms. May, no one can deny that she made a monumental effort to implement the will of the voters (she was a Remainer). She failed and so the process can legally, morally and ethically begin again.

tjchiang said...

"We can acknowledge that authorizing a third, fourth, and fifth Brexit referendum because the voters chose "wrongly" would be simple sore-loser-ism. But Parliament is not (anywhere near) there yet."

I don't really see much difference between authorizing a second referendum and a third in terms of the sore-loserism problem. Right now, the second referendum will solve absolutely nothing unless the voters choose the "right" answer of remaining in the EU. If they vote to leave again, it is not as if the Remainers are all of a sudden going to accept defeat on their first-best outcome and vote for May's deal as the least-bad alternative. If you think a third referendum is sore-loserism, then so is a second.

Even a 10th referendum would not be "undemocratic", but voting again and again until the pro-EU elite gets its way is fundamentally about the elite telling the masses to eat it and like it, so "elitist" might be a better label for what the basis of the critique is.

tjchiang said...

Or, to bring out the point that I implied but failed to articulate concisely, the second referendum is not being used to actually gauge voter sentiment. Nobody calling for a second referendum actually wants to know what the voters want. In that sense it is not a "democratic" instrument, though I agree that it is also not "undemocratic" to overturn a prior referendum with a second one.

tjchiang said...

Actually, after more thought, I think there is a valid case for saying that there is something "undemocratic" about the Remain process.

There is a famous British sitcom called "Yes, Minister." The rough plot of most episodes begins with the Minister deciding on a new policy. The chief bureaucrat in the department (who opposes to the policy) then ostensibly works to implement the policy, while pulling various behind-the-scenes machinations to make sure the policy change fails. At the climax of the episode, the chief bureaucrat's machinations come to fruition and he presents the Minister with an iron-clad case for why the policy cannot be pursued. The Minister then grudgingly reverses his initial decision, to which the chief bureaucrat says "Yes, Minister." The overarching point of the show is that, while the Minister (and the people who elected him) is ostensibly in charge, it is really the chief bureaucrat who makes all the decisions.

At least from the point of Brexiters, that is a pretty decent description of what has happened the last three years. We had a referendum that made a policy decision. Theresa May is the chief bureaucrat who is supposed to implement the decision but was always opposed to it at heart. And now we are just at the climax where the voters are being given the iron-clad case why their policy decision is impossible and they must reverse themselves. This is not the only interpretation of what happened and where things stand, but I don't think it is an unreasonable one. And so interpreted I can see why Brexiters say there is something undemocratic about the whole situation.

Shag from Brookline said...

Check out the NYTimes: "The Malign Incompetence of the British Ruling Class - With Brexit, the chumocrats who drew borders from India to Ireland are getting a taste of their own medicine." By Pankaj Mishra (Jan. 17, 2019, for a critical view of the Brexiteers, comparing to "independence" for India and Ireland. Here's the closing paragraph:

"Humiliations in neo-imperialist ventures abroad, followed by the rolling calamity of Brexit at home, have cruelly exposed the bluff of what Hannah Arendt called the “quixotic fools of imperialism.” As partition comes home, threatening bloodshed in Ireland and secession in Scotland, and an unimaginable chaos of no-deal Brexit looms, ordinary British people stand to suffer from the untreatable exit wounds once inflicted by Britain’s bumbling chumocrats on millions of Asians and Africans. More ugly historical ironies may yet waylay Britain on its treacherous road to Brexit. But it is safe to say that a long-cossetted British ruling class has finally come to the end of itself as it was."

There's a lot of history on British imperialism in this article.

By the way, while Parliament had the duty and obligation to vote on Brxit, it was not involved with the negotiation of the terms for Brexit; that was undertaken by the PM and the government, presented to Parliament, which rejected it. PM May has invited members of Parliament to join in negotiating a new Brexit arrangement. Mishra's article suggests a failure on the part of the Brits, which suggests a second referendum. "Hear, Hear!"

Michael C. Dorf said...

Thanks for the interesting comments. I want to focus on TJ's, which strike me as theoretically right but questionable in application in two ways: (1) As David Ricardo's comment notes, PM May has made a good-faith, indeed, heroic, effort to implement Brexit, despite her having favored Remain. Thus, the analogy to Yes, Minister seems highly inapt. (2) A second referendum under current circumstances really would be a way to clarify the voters' intent in a way that a third or successive one would not. Let me give another analogy.

Suppose Tracy is the treasurer of her college chess club. The club has an annual budget of $1,000. In a typical year, most of that money is used to pay for snacks at meetings and to subsidize travel to nearby tournaments. The club's five chess sets are in bad shape, however. Pieces are missing or damaged. At its first meeting of the academic year, the members consider buying replacement chess sets. During discussion, someone asks how much a chess set costs. One member says "you can get a decent one for about $50." Someone else says that will only leave them with $750 for their other expenses. There is debate back and forth, followed by a vote narrowly in favor of authorizing the Treasurer to go to the local hobby shop and purchase five new chess sets. The motion that carries does not mention price. Tracy is authorized to spend the chess club's money on its credit card. She goes to the local hobby shop, where she is surprised to discover that the shop is out of "standard" chess sets (which sell for about $50 each) but has five expensive "specialty" sets, which would cost just under $1,000 including tax. The purchase would not be refundable. What should Tracy do? I suppose one could argue that she should buy the expensive sets anyway, but it would certainly be reasonable and respectful of chess club democracy for her to go back to the club members and explain the situation, giving them other options, such as ordering cheaper sets online. QED.

tjchiang said...

Personally, I agree that May has done her best to implement Brexit consistent with the result of the first referendum. I don't think pro-Brexiters see it that way, however. Moreover, May is not in complete control, and much of the rest of the British "establishment" probably hasn't done its best to implement Brexit. As a television show, Yes, Minister personified the bureaucratic establishment in one character, which is not reflective of real life, but the overarching point that those charged with implementing a democratic policy can subvert it and then "guide" popular opinion to the desired outcome remains valid, and I think it fair to label that kind of subversion "undemocratic."

As for Mike's analogy, of course on those facts it would be perfectly democratic to ask whether people want to reconsider in light of new circumstances. But the key point here is that Mike is positing new circumstances entirely beyond anyone's control and also unknown at the time of the initial decision; Tracy is clearly not subverting the initial decision.

I'm sure Remainers think that the difficulty of Brexit is an inherent fact of the world and thus not attributable to May or anyone else's subversion or lack of effort, making Mike's chess club analogy apt. I'm pretty sure Brexiters do not share the same interpretation, however. And I took Mike's initial argument to be that the Brexiters' argument that a second referendum would be the capstone of an undemocratic process is wrong even given the Brexiters' general premises; not that, if one took the Remainers' view of the world, a second referendum is not undemocractic. If it is the latter proposition, it becomes a rather trivial one.