One consequence for me of the referendum campaign that we are currently living through is that I have discovered I am far more in favour of UK membership of the EU, and of the entire project, than I had realised. I have watched with growing alarm as polls have shown a large shift in favour of Leave. There are many things I dislike about the EU. As a lawyer, I find that the quality of law produced by its institutions is often second or third rate. Judgments of the CJEU whilst better than they were, are always terse, frequently obscurely reasoned and sometimes difficult to justify. They are also very often difficult to reverse when wrong. The European Union does not, and cannot for the foreseeable future, form a single polity, which inevitably creates a democratic deficit however perfect its formal structures may be. This in turn necessitates that the ‘European Project’ is carried out with restraint. Unfortunately it has sometimes been carried forward hubristically. The exemplar of this is the euro, a bad idea whose time had come, which has caused years of economic underperformance in the eurozone.
And yet, I find the prospect of leaving the EU to be a terrible one. In legal terms, harmonisation of the laws of member states has not only enabled the functioning of an internal market but substantively improved UK domestic law regardless of the EU. Private international law, company law, and competition law are the (politically neutral) areas that I know about where I think this is so. The UK’s relative economic performance improved almost immediately from the point the UK joined the EU, and if we wish to make ourselves poorer than we otherwise would be, leaving is the best and easiest way to do so. More abstractly, being part of a club with the Germans, Poles, Latvians, Spanish and so on has a civilising influence on the UK.
Referendums in General
Direct democracy is unlikely to work well. Most individuals do not have the time to become informed about most political issues. Given the opportunity costs involved, and the small contribution of their individual vote, it makes no sense for most individuals to become properly informed about, say, Keynesian economics before a vote.
Second there may be majorities for positions that are mutually inconsistent. There are probably current majorities in the UK for higher spending, lower taxes, and reducing the deficit for example.
Third and related, is that referendums offer a binary choice, in/out, yes/no. There is no room for “yes, but”.
Fourth referendums are susceptible to either misuse or capture by demagogues. As Plato warned, and as we are in the process of re-discovering, decisions are swayed by those best able to swing the popular mood of the mob, and not those with technical understanding of the issues.
Representative democracy seeks to avoid these and other problems. So, we elect representatives who do have time to become properly informed about a range of issues. They are responsible for selecting governments who take together issues in the round in making decisions. Independently minded MPs, such as the tragically murdered Jo Cox, will not prove as susceptible to the charms of the populist presenting easy solutions to difficult problems.
Overtime, experience has taught us that representative democracy works well in societies such as ours. Where referendums are in more general use, such as in California, they have not led to good government.
The EU Referendum
In certain limited situations, of which the EU referendum is one, referendums are not only a good idea but the only way of overcoming a democratic deficit.
First, the party system may mean that a hotly disputed issue finds all the major parties on one side, offering the voter no choice and dissent no voice. In relation to EEC/EC/EU membership all three (four?) major UK parties have long been in favour of membership, with the brief exception of Labour in its 1983 manifesto. This means that our representatives are skewed one way on the issue. Some issues, such as capital punishment or abortion, are not part of the platform of political parties so that a ‘free’ vote of representatives may take place to determine the matter. The UK’s relations with the EU is not of that kind.
Second, within the UK’s system of Parliamentary Democracy, there are some decisions that Parliament itself cannot legitimately take. This was Cameron’s original argument in favour of a referendum in his Bloomberg speech. So, just as one Parliament cannot bind its successors, or one Parliament cannot abolish future Parliaments, one Parliament cannot take the decision to hand over its powers to another person or body. These systemic questions cannot be resolved by part of the system itself. Since the last referendum in 1975 the scope and nature of what is now the EU has changed. So, legitimacy requires a referendum to resolve the issue. It is true that in the past, changes such as the Act of Union between England and Scotland, or the power of the House of Commons to overturn the House of Lords, were not validated by a referendum. On the merits however, so much the worse for the past.
Third although the angry (male) voices on social media and elsewhere during the Scottish referendum campaign and the current European one do their best to persuade us otherwise, getting the population to discuss and think about hard issues is a good thing in itself. Resolving disputes through democratic process rather than, say, judicial decision, settles the matter for the losing side in a way that allows them to accept it. The Irish constitutional referendum on same-sex marriage was a far better way of settling the question than was the decision of SCOTUS in Obergefell v Hodges.
The United Kingdom does not have a codified Constitution contained in a single document. Like all legal systems, such as the EU, it has a Constitution because that is necessary in order to determine what the laws are. Constitutions need rules for how they may be changed. The UK’s rules of change are determined by principle and convention. In principle, it would not be legitimate to have significant (meaning?) Constitutional change carried out by a bare Commons majority. Increasingly therefore a Convention has arisen since 1975 that such changes require a referendum.
In the UK’s legal system, referendums have no legal consequence. They are politically binding only. But binding they are. I fear that the result of the current one may not be to my liking, but that in itself is not an argument for not having it.