Its about democracy itself.  Frances Cowell asks if there is precedent on voting trends changing in a short period of  time and if the “will of the people” should be the final say in the Brexit crisis.

In a recent interview on the BBC’s Newsnight programme, former chancellor Ken Clark referred to the 2016 EU referendum as a “daft opinion poll”.

Many people who voted for Brexit are understandably cross that their vote could be overridden by a second referendum. But their arguments are refutable. The most frequent, that the result of the first Brexit referendum should be respected, seems fair enough. But by that logic, the result of the vote in 1975 in which a majority of votes was to remain in the EEC, as it was then, should stand.

Leaving aside the practicalities of holding a third Brexit referendum, there is a case for allowing people to change their minds as circumstances demand. Although the circumstances of Brexit have remained the same since the 2016 vote, they have become much clearer, and many people have changed their minds in response. If the 1975 result can be overturned, why not the 2016 one?

Now the argument seems to shift to: What is a decent interval between votes? We have precedent here. In a 2009 referendum marred by an intensive mis-information campaign, Irish voters initially rejected the EU Lisbon Treaty, before ratifying it four months – and a clearer presentation of the facts – later. Had voters taken the view that the second plebiscite was an affront to the first, they surely would have repeated the earlier result. But they didn’t, suggesting that there was indeed good reason to ask them a second time. What is a reasonable minimum interval? There isn’t one.

In fact, voters frequently change their minds in short order: look at the UK general election results of 2015 and 2017. But that is to compare apples and pears, which we should avoid doing: a vote to change the tenant of Number 10 is one thing; a vote to change the constitution and strip the population of a big chunk of its rights is quite another.

Britons are proud of their mostly make-it-up-as-you-go constitution, and indeed this formula is in many respects formidable. Its appeal is that it has few hard-coded diktats. One is the sovereignty of Parliament, but the UK constitution is mute about what it takes to change it. So we seek guidance in other, similar democracies. Most demand some kind of super-majority of legislators or a clear majority of eligible voters, which is why constitutional changes are so rare. In parliamentary democracies similar to the UK, anything less than a clear majority of eligible voters renders a referendum result merely consultative and the Parliament can choose to ignore it. Indeed, in a representative democracy such as Britain, the Parliament has a duty to overrule a consultative result that works against the country’s interests. This is an important point that we’ll return to in a moment.

First for some arithmetic. The 2016 referendum did not result in 52% of the electorate voting to leave the EU. In a 72% turnout, just under 52% of votes were for Leave. That is, 37.5% (52% x 72%) of eligible voters: a small proportion for such a big decision. How the 28% would have voted is debatable, but one suspects that those who had thought about it assumed that Remain was a foregone conclusion, so they may have attended to other Thursday evening imperatives as shopping for family necessities. Its not unreasonable to suppose that, for most people, the status quo is de-facto the default option.

Most seasoned politicians think referenda a bad idea. A few moments’ thought and you can understand why. Direct democracy, where a country is governed by direct voting in referenda, has been tried in a number of places. In Switzerland, for example, it seems to work well. The population of Switzerland is nine million people and relatively homogeneous. By contrast, with a highly diverse population of 40 million people, direct democracy made California nearly un-governable, as the electorate voted for incompatible laws, such as to increase spending while lowering taxes, leaving an untenable hole in the budget. Britain has 66 million people and is also very diverse, so the likelihood of success for direct democracy there would therefore have to be poor.

The other sort of democracy is representative democracy, whereby voters vote for people to represent them in a parliament or congress. Most modern democracies work this way. When working properly, elected representatives use the – often privileged – information they have at their disposal to vote in their constituents’ interests. If voters are dissatisfied with their representative, they have the opportunity from time to time to throw him or her out.

Thus, were the Parliament functioning properly, a second referendum would be not only unnecessary, but quite daft. But as Ken Clark also points out, the Parliament is not functioning as it was intended to. Rather than use their judgement and information to make the best decisions, MPs seem to be slaves to their most vocal constituents, resulting in government by the noisiest.

We seem now to be in a no man’s land between direct and representative democracy. Her Majesty’s Loyal Opposition is serving as a cat’s paw for the Brexit elite, while the Prime Minister, far from leading the country, is caught in a game of piggy-in-the-middle of Westminster and Brussels.

In the absence of a functioning Parliament, perhaps the only way out of this wilderness is indeed to retrace our steps, rerun the referendum and, unless at least 50% of eligible voters vote to leave, treat both as the consultative plebiscites they are, stay in the EU – and get on with our lives.

Frances Cowell
Australian-born and European by adoption, Frances Cowell writes and speaks at conferences about investment risk and governance, financial market stability and business ethics in financial markets – and the implications for the wider political economy. She believes Europe must urgently assume the lead in protecting and preserving liberal democracy, the rule of law and the multi-lateral institutions and alliances that it depends on.

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    1. Recently my wife put a voting form in an envelope then sent it. Since then she has been thinking seriously about French naturalisation. She is Swiss. She does not believe referendums work, but that they are prone to the same kind of disingenuous campaigning Brexit was. See this: https://www.operation-libero.ch/fr/iad-udc-extraflyer?ssuid=53441988%3Aanto_invernizzi%40yahoo.com . The story is this to make the picture whole. A referendum was held on 6 December 1992. 50.3% of the Swiss people with voting rights voted against joining the EEA. The pending application to follow through by applying for EU was postponed and remains so today. The Swiss People’s Party was the main proponent of the initiative thus celebrated the referendum outcome as a major victory. In 2002, the Swiss People’s Party (again) launched a federal popular initiative ‘against asylum abuse’ that was rejected by 50.1% of voters, which was a difference of only 4,208 votes. At the beginning of 2014, 23.4% of Switzerland’s population were foreigners compared to 9% in Germany. It is now nearly 25%, Germany is the same as it was then. The net immigration was around 80,000 people per year which was 1% of the total population and every year 30,000 to 40,000 receive Swiss nationality which is a per capita rate of about three times that of both Germany and the United States).However, according to the European Commission roughly one million EU citizens live in Switzerland, another approximately 230,000 cross the border for work every day, while ‘only’ 430,000 Swiss live in the EU. So the Swiss People’s Party raised it head again, petition for a referendum on a federal popular initiative ‘against mass immigration’. They raised the signatures, thus the vote was held on 9 February 2014 with 56.57% of the electorate turning out to vote 50.33% in favour of the motion. It looked like they would have to leave the Schengen Area, lose the newly agreed Erasmus participation and other essentially humiliations. Again it was celebrated as a major victory. Thus it passed into the hands of legislators.
      There was serious fear about a slowdown in economic activity due to the enforcement of the initiative. Business and industry groups had been opposed to the initiative during the campaign. They expressed serious concerns about its impact on their ability to attract and retain top talent from abroad, which Switzerland cannot survive without. The Swiss Bankers Association expressed extreme disappointment and worries about the result, demanding constructive talks be held with the EU to explain their position. There were protracted discussions between Switzerland and the EU, the Swiss Federal Council climbed down from the initial referendum proposals by adopting what they called a ‘light national preference’ to implement the referendum.That was denounced as a failure to properly implement the referendum by the Swiss People’s Party because it failed to put the desired curbs on immigration. Its leaders immediately considered a new referendum, thus began a new petition that reached the required threshold within the required time so that on 25 November, less than three weeks from now a referendum to end freedom of movement is being held. That is what my wife put in the envelope, sent and is now thinking about French citizenship. Look at the link, choose a language then feast your eyes on shades of the big red Brexit bus, ukip, Trump then look at the same party’s other campaigns that went to referendums ‘against the construction of minarets’ in 2009, 57.5% in favour of the ban, and ‘for the expulsion of criminal foreigners’ in 2010, which 52.3%supported and think about Switzerland. Is it the ideal model? One party packs in the so-called people’s initiatives by easily achieving the threshold for a referendum then takes a leaf out of the Joseph Goebbels book of usual tools for manipulating minds. Put your hand on your heart and say ‘By Jove, there is the kind of democracy we need. It works chaps’ (feigned Boris Johnson spoken style required).
      Referendums, fast and furious Swiss style. Ken Clarke was not so far off the mark.

      1. Hi Brian,
        Thank you for another excellent comment. The Swiss experience you describe just emphasises the point: even when direct democracy appears from the outside to be working, a closer look can reveal quite another reality. I had read about the series of results re the Swiss reationship with Europe (which I understand drives the EU nuts), but I wasn’t familiar with the underlying debates. Many people are similarly misled about the Australian referendum in 1999 about whether to stay with the monarchy or become a republic. Despite about 75% of the population favouring a republic, the country voted to stay with the monarchy. And this illustrates another point you make: referenda are disastrously easy to manipulate – not least by how the question is framed. The question framed in this case, by a monarchist prime minister, gave a non-choice to Australians – a non-offer they could only refuse. So Australia still tugs the forelock – in contradiction of the wishes of nearly all Australians. Don’t mention 1975….

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