At the beginning of April, Switzerland’s Federal Supreme Court declared void and ordered a rerun of a February 2016 referendum after ruling that voters were informed erroneously and incompletely before being asked to make a decision on whether married couples and cohabiting partners should pay the same tax. It was rejected by a margin of 50.8% to 49.2%.
Two years after the referendum, the government revised its original estimate of the number of couples who being penalised by the existing system up from 80,000 to 454,000. As a result, the Supreme Court ruled that the ‘…incomplete detail and lack of transparency in the information provided by the Federal Council violates the freedom of vote of citizens… Given the tight outcome of the poll and the seriousness of irregularities, it is possible that the result of the voting could have been different.’ It is not entirely clear what will happen next, but the Federal Council said it will examine the consequences as soon as possible to determine how to proceed. However, since the Supreme Court has ordered the referendum be rerun, therefore that will happen, information will need to be correct and complete this time, therefore it is only the outcome since 2016 that has to be resolved by the government if the new referendum reverses the original decision, which is highly likely.
Is Brexit comparable?
This has been compared to the UK government’s dilemma with the Brexit impasse and the fact that numerous irregularities have been established as a probable influence on the outcome, including false information. The 51.89% to 48.11% margin has also been compared as a close call. The significant differences were turnout in Switzerland was 63.2% of 5.3 million voters whereas the UK saw 72.21% of 46.5 million voters. In the former that was quite normal whereas the latter was an exceptionally high turnout.
Despite the obvious, apparent similarities do not compare well when examined in depth. I have talked about this with my Swiss wife and what she says does not tally with some of the media reports in the UK. This is not as, for instance, both the BBC and The Guardian reported, the first ever overturned referendum. The ones overturned in the past have been far less newsworthy and done by the government in the form of amendments, revisions and reforms at a later stage, some of them subject to further referendums. All referendums are governed by the constitution and are binding. There are three kinds: mandatory and optional referendums and popular initiatives. All constitutional amendments approved by the Federal Council must be voted on in a mandatory referendum via a popular vote. Thus in 2001, around 77% voted against joining the EEA (not the EU, that is usually misreporting, joining the EEA was considered to be the first step before the EU would be considered with a later referendum). The next year, nearly 60% voted in favour of joining the UN.
The optional referendums work thus, when 50,000 Swiss citizens (or eight cantons) request an optional referendum to contest a new or revised law, they must gather the signatures within 100 days. If the referendum goes ahead, the new law is either passed or rejected by a simple majority of voters. However, it may be amended or revised by the Federal Council. Popular initiatives were started in 1891 so that citizens can demand changes to the constitution through referendums by launching a popular initiative which must be launched by at least seven citizens and then be backed by 100,000 signatures within 18 months then passed or rejected by a referendum. A double majority of the people and the cantons is required for this kind of referendum to be passed.
Legislative referendums are only permissible regarding laws passed by the Federal Council rather than cantonal legislatures. Citizens cannot initiate actual changes in the law through legislative referendums, although they can petition for government to hold such a referendum.a law, Once a new law is passed, citizens must collect the 50 000 signatures within 100 days of the official publication of the new law. If a majority of voters reject the law, it is cancelled.
The electorate only has the right to initiate constitutional legislation with a federal popular initiative, a petition that becomes a referendum. For the latter, the above minimum of 100,000 signatories within 18 months is required, which given the population is 8.5 million, thus with 5.4 million voters is somewhat less than one-eighth of the UK population, therefore a petition of around 800,000 specifically asking for a referendum would oblige the UK government to allow one. The petition in the UK in excess of six million signatories that the withdrawal of the UK from the EU in accordance with Article 50 of the Lisbon Treaty be withdrawn would have triggered a referendum in Switzerland. There is no threshold, simply a clear majority but minimum participation has to be higher than 40%. That is to say, it would have to be more than 50% of the popular vote, also succeeding in at least half of all cantons and half cantons with a minimum turnout of 41%, both federally and in cantons. In 2016, not only was there a small majority, but the vote was carried in 18 cantons and half cantons with only eight against. In equivalent terms, that would mean that in the case of the devolved parts of the UK voting against in 2016, there would have been no majority as required by constitution at two to two, therefore either revote or annulled referendum. If the margin is only one or two percent then either the Federal Council or citizens demanding a revote can ask for the result to be declared void. Since the constitution was promulgated in 1848 there have been over 550 referendums, around 440 of them federal, there are four sets of them each year. My wife has had up to six arrive by post in a single batch, some of them incredibly banal like subsidising farmers who do not dehorn their cattle last year.
Another point about the Swiss referendums is that those that are raised by petitioners have the question posed in the petition carried over in the referendum, the counter argument is set by the government, the ‘don’t know’ option that is always included is a standard, neutral question. The notion is that by having a question that will take in undecided voters, there is a chance that at the moment of casting their vote an affirmative decision, thus choice, will be made. The information for each the ‘people’s choice’ and the government counter is fully explained, and whilst the petition was most certainly accompanied by some very one sided propaganda, the constitution forbids any kind of leading information that is not established fact in the lead up to and accompanying the actually referendum.
The UK campaigns for Leave and Remain options were in the main misleading. The government’s own information and that of the Remain lobby was weak, incomplete and in some respects incorrect. The Leaver lobbies all used the kind of argument that was convincing although widely declared as untrue propaganda. Since June 2016 we have come to see how the Leaver campaigns were funded using amounts above the legally proscribed limits, also that some of that funding was from Russian sources and, in some cases, dark money. It is may well be coincidence, but the mahatma propagandhi of the Third Reich, Dr Joseph Goebbels, used the expression ‘Gesundes Volksempfinden’, often together with ‘Volksgemeinschaft’, whereby the former is ‘the healthy will of the people’, thus adding ‘healthy’ to the anaemic Theresa May version that became the parole to express what had been a narrow margin that was also later shown to be dubious because of many exclusions. The latter expression Goebbels used makes that ‘will of the people’ appear to be that of all people, except those who are disqualified by their religion, race, political beliefs and other indicators that justify exclusion. The parallels are striking, then when it comes to ‘We the people’ in the preamble to the constitution of the USA that has been cleverly scripted into UK government post referendum justifications, ‘Wir, das Volk’ was also carefully inserted in the right places with the intent of making totalitarian rule appear a great deal more democratic than it could in any sense be. It appears that early 1950s copywriters of the kind Vance Packard was writing about in ‘The Hidden Persuaders’ simply adopted the manner in which Goebbels had created what became a marketing method to suit politics, which over the course of time has simply been refined whilst holding on to the same principle of telling the people that the diktat from above actually comes from them. Brexit has been entirely built on that kind of propagandism in that it not only claims the people have expressed their will as a body, but that because of that the government is fully exonerated from any responsibility. That is legitimacy that ignores lies, exaggerations and innuendo, yet fails to hear the responses of others who denounce those flaws because the result is ‘the will of the people’. Clever!
How Brexit was sold
One of the ‘best sellers’ of the Brexit campaign was immigration, which is exactly what the right in Switzerland used to gain a narrow victory in a referendum. A census published in 2012, showed that 23.4% of Switzerland’s (legitimate) population were foreigners with 25% expected by 2018. A popular initiative ‘against mass immigration’ was launched by the right wing Swiss People’s Party that was accepted by a majority of the electorate and cantons in 9 February 2014 with a narrow majority of 50.33% to 49.67% on a 56.57% turnout and 12 of 20 full cantons plus five of six half cantons. To give an example, my wife’s canton, Ticino, voted 69.2% to limit freedom of movement as proposed. Overall it meant that all single market agreements with the EU and membership of the Schengen Area would have lapsed unless a compromise was found. In the end, after amendments by the government, it does not limit the free movement of EU workers to Switzerland. There is always a generous period of time for the Federal Council to amend or introduce new laws as part of change to the constitution. Thus in 2016 the new vote that legislated for Swiss employers to give priority to Swiss based job seekers, thus Swiss nationals and foreigners already registered in Switzerland but does not limit the free movement of EU workers to Switzerland. Last year, there was a referendum on ‘sovereignty’ (which will be familiar to Brexitologists) which may have ended dozens of international commitments Switzerland has signed up to on human rights, trade and other matters. The 2014 referendum had included limiting immigration from the EU along with others, but the proposals were not enacted as rigorously as the Swiss People’s Party had wanted because the Federal Council acted to save the treaties with the EU, EEA and EFTA (of which they are a member). In 2018 66.2% voted against and 33.8% for, virtually two to one against, with 20 cantons against and only six for.
So, the nature of referendums is very different. The Swiss legal experts have said that the Brexit referendum is in no sense legal, which was said before the overturned vote happened as well. For all of the differences, what it proves is that the UK has ‘cheated’ but then one thing stands out. In each Swiss referendum there are three choices, yes and no with clear information on both options rather than propaganda that is inaccurate, plus a ‘don’t know’/‘undecided’ option, which their experts on referendums believe would have changed the UK vote to an indecisive one that would have been used as purely advisory but could never have been acted on. Furthermore, referendums raised by popular initiatives use one of the options as the question but the government sets the counter argument, the no decision option is always entirely neutral. Now the matter of false and lacking information has seen them seriously analysing the legitimacy of the UK vote in the light of their own discrepancy It is no wonder that my wife is far more interested in Brexit than she has ever been in any of the ones she is asked to participate in, 10 of them last year alone!
Wheel on Magna Carta
There is one particularly significant difference. The way the constitution is used is part of democratic process. Whilst Switzerland has had a written constitution since 1848, the UK has never had one, whatever romantic views are held by ‘constitutional experts’, historians and a few lawyers. Magna Carta Libertatum better known as just Magna Carta, is not a constitution. It was a peace accord between King John and a group of rebel barons in June 1215. It was for the ‘free men’ of England, in which it promised the protection of church rights, the protection of the barons against illegal imprisonment, swift and accessible justice and limits placed on feudal payments to the crown. It was intended to be implemented through a council of 25 barons, but neither side upheld their commitments, then it was annulled by Pope Innocent III, bringing about the First Barons’ War.
Initially it was a failure, so that when John died in 1216, it was reissued in the name of Henry III with a number of notable omissions relative to the defence of national liberties and restrictions on taxation. It was reissued with more changes in 1217, again in 1225 which was incorporated into British statute law in 1297. In 1300 it was translated and publicly proclaimed in English for the first time. Over time it became a symbol of the supremacy of the constitution over monarchy as opponents of capricious royal power extracted supposedly ‘democratic’ interpretations from the text. This inclination reached its apex in the 17 century when apologists for parliament as Sir Edward Coke made such claims as the charter forbade taxation without representation, it guaranteed trial by jury and, most absurdly, that it even invested the House of Commons with immense powers, although it did not actually exist until 1341, then in something more like its present form after the Acts of Union with Scotland in 1707.
James I and Charles I both tried to restrain discussion of Magna Carta. The English Civil War and the execution of Charles ended that. The political myth of Magna Carta and what was claimed to be protection of ancient individual liberties lasted beyond the Glorious Revolution of 1688 well into the 19 century. Then historians showed that the original 1215 version concerned the relationship between the monarch and barons rather than the rights of ordinary people. Even then it remained a highly influential document, although most of its content was repealed, thus removed from statute books during the 19 and 20 centuries.
The myth of the UK constitution
Historiographers now contest the supposed antiquity of parliament and belief in the irreversible continuity of law. They have shown that liberties in Magna Carta were only ever limited and that they were granted exclusively by the monarch. This historical context casts doubt on any contemporary political relevance. The belief that the Glorious Revolution saw ancient liberties as they were described reclaimed was reinforced by concepts described by John Locke, through the Whigs’ belief that England’s constitution was a social contract based on documents such as Magna Carta, the Petition of Right and the Bill of Rights. In fact they were highly idealised, perhaps nostalgically recalling something that had never been other than in the minds of those who wanted to believe in the political model. In 1716, the Septennial Act was passed, thus showing that Parliament ceased to consider previous statutes irrefutable. It greatly extended the powers of parliament by decreeing that monarchical absolutism was replaced by parliamentary supremacy. Those who believed in the supremacy of monarchy saw that Magna Carta stood in the same relation to the ‘king-in-parliament’ principle as it had to ‘king-without-parliament. The supremacy of parliament over monarch was challenged by Granville Sharp who considered Magna Carta a fundamental part of the constitution, thus argued that it was treason to repeal any part of it. Thomas Paine, entirely ignored Magna Carta and the Bill of Rights in his ‘Rights of Man on the grounds that they were not a written constitution devised by elected representatives. Thus, the debate continues. However, the fact remains that a charter written in 1215 as a peace pact between a king and rebel barons in England and furthermore only stated its application for those it considered free, thus only those who owned land and on through to nobility and royals, most certainly to the exclusion of all women and presumably those who were not yet considered adults, is a universal constitution in any sense. Indeed that it is even the basis on which a constitution could be built is questionable.
The fact remains that the UK does not have a written constitution that provides structure and guidance for the means and practice of governance, the rights and duties of citizens and such further instruction as the role and function of laws and those who administer it. In the 21 century this makes the UK look absurd, an archaic political union in which in theory a royalist government could restore the absolute powers of monarchy and all but drive the nations of the union back toward feudal structures.
The notion that it was some kind of constitution endured until well into the 19 century when a view that Magna Carta was entirely reactionary, rather than progressive, merely guaranteeing the continuation of some basically feudal rights into the modern age challenged it. On its own Magna Carta would be of little real significance, but it has been firmly implanted into Common Law, of which the roots of some laws are said to be found in Saxon and Danish laws prior to the Norman invasion and occupation of England. Furthermore, it is only actually valid in England and Wales, although the latter is not mentioned, but has never had validity in Ireland or Scotland. Indeed, the respective acts of union of 1707 and 1800 did not implant Anglo-Saxon common law into either country or validate Magna Carta into their laws. If anything the Belfast Agreement, also known as the Good Friday Agreement, and the Scotland Act 1998, gave Northern Ireland and Scotland something closer to some semblance of constitutions than the rest of the UK, whereby England has no such political structure and Welsh devolution only offered a relatively small degree of autonomy.
The UK is structurally unlike Switzerland
Thus, the very idea of a constitution that would direct such matters as referendums across the entire UK is more of a flighty notion rather than an actual fact. Using the Swiss example, for the UK to be what it claims to be would require it to be a federation in which all members made and upheld their own laws with a federal constitution and legal framework that held them together. Switzerland’s union began in 1291 when Uri, Schwyz and Unterwalden joined together as a confederation. Over time cantons have joined, some left, some rejoined; in 1648 they gained legal independence from the Holy Roman Empire under the Treaty of Westphalia. This continued until the creation of the Cisalpine Republic by Napoleon in 1797 that became the Helvetic Republic the next year. Under Napoleonic control several cantons joined them. The 1814-15 Congress of Vienna established Swiss independence, European powers recognised permanent Swiss neutrality and three cantons, Valais, Neuchâtel and Geneva joined to make up modern Switzerland. The UK notionally began with the Norman invasion in 1066 then incursions into Ireland, Scotland and Wales but really began with Edward I’s invasion and conquest of Wales between 1277 and 1283. Whilst ongoing invasions of Scotland and Ireland continued over the centuries, it was not until a group of Scots landowners and nobles bankrupted their country that it was effectively sold to England in 1707, thus becoming the United Kingdom, finally adding Ireland in 1800. There is no actual comparison. Until, Irish independence, then devolution in 1998, each acquisition became an English vassal region that has fought to preserve its identity and integrity with a seat at the ‘high table’ of governance. Not that after those unions the UK was peaceful. There were the Jacobite rebellions between 1688–1746 in Great Britain and Ireland, Irish risings in 1798, 1803, 1867, the Easter Rising in 1916 then the Irish War of Independence 1916-21. One might argue that since 1922, the part of Ireland still in the UK has fairly consistently been in a state of conflict.
Despite the view that Switzerland is a peaceful country, divisions among political and identity groups, four national languages, strong divisions between Roman Catholics and Protestants, with sizeable divisions within the latter and localised traditions have always been a problem. Smaller events eventual led to the brief civil war between the Catholic and the Protestant cantons, known as the Sonderbundskrieg, in 1847. However, it was the last armed conflict on Swiss territory, leading to a programme of federal reform under which a new constitution was drafted along the lines of the USA’s then still considered modern and revolutionary constitution. National issues were placed under the control of a national parliament; it was put to a vote which came down heavily in favour of the constitution by two million to 300,000 against. Any comparison with the English Glorious Revolution falls apart very quickly. Thus, in 1848 they had a federal constitution that was amended extensively in 1874 to establish federal responsibility for defence, trade and national legal issues, but leaving all other matters to cantonal governments. My wife’s canton is formally the Repubblica e Cantone Ticino (Republic and Canton of Ticino), whereby the Gran Consiglio di Ticino (Grand Council of Ticino) is the cantonal legislature consisting of a 90 member council that is elected every four years by proportional representation in a single constituency comprising of citizens resident in the canton. A president and two vice-presidents are selected by the members of the Grand Council, but not the electorate, which also appoints the canton’s judiciary. The canton has its own constitution which is tied to the federal constitution without taking away it own powers that include a right to secession that, in line with federal law, would require a referendum. The UK does not compare. With union in 1707 (or 1800 when Ireland was incorporated into the UK) a constitution for the union with each of the four parts of the political union having its own constitution would have been apposite.
In such a constitutional setting, all component parts of the UK would be equal, thus demand either a majority that included each country as cantons are, or the right to secession in the case of being unable to accept a decision that adversely affects one of the members of that union. At present, although considered debatable under the terms of 1998 devolution terms, central government must approve and obtain royal assent for an independence referendum. Swiss cantons have the right to respond to a cantonal petition demanding secession by holding their referendum without the permission of the federal government. Thus, there are cantonal and national constitutions that provide precisely the kind of ‘tie breaker’ between Westminster and the member countries of the UK.
The bottom line
The fact remains that the UK does not have a written constitution that provides structure and guidance for the means and practice of governance, the rights and duties of citizens and such further instruction as the role and function of laws and those who administer it. In the 21 century this makes the UK look absurd, an anachronistic political union in which, in theory at least, a royalist government could restore the absolute powers of monarchy and all but drive the nations of the union back toward feudal structures. That kind of romantic notion of a past that was better fits very comfortably in the popular notion of the government having promised it would be a place in which everyone would have their own unicorn. Fantasy transcends realism. There are, it would appear, those who in their drive for some kind of sovereignty gained by leaving the EU would possibly be capable of driving the UK back toward an older form of governance in which the divine powers of those ordained to rule would give them supremacy over their subjects. Although Brexit would be highly unlikely to take the UK so far, it is indisputable that royalist sentiment does exist to that extent. Yet without a constitution that sets precise parameters to how a country is governed it is not absolutely impossible. A modern constitution that would provide ground rules for all aspects of political, social and economic rights and duties of state through to individuals with a well defined set of articles to direct governance and those responsible for its exercise marks the difference between Switzerland and the UK. To compare the two referendums, no matter what the reasons and closeness of voter margins may be, is impossible because of the significant differences between the two. However, the lesson that should be learned is that what the Swiss have, itself far from perfect, the UK lacks and appears too blind and diffident to seriously consider.
Thus, the question posed, ‘Is Switzerland providing a model for how Brexit could be revoked?’ is quite simple to answer. No!