It is a striking fact that Brexit has been swept into existence by a Parliament made up mostly of members who believed, on their election, in the principle of remaining within the European Union. The fact that so many have voted against their expressed opinions is a clear and disturbing departure from the principles of parliamentary sovereignty, by which Parliament is the sovereign body. The referendum of 23 June, according to this system, was purely advisory. In reality, it was opportunistically invented to manage a cleavage in the Tory Party. However, following its shocking and unintended Brexit result, the referendum has since been crudely advanced by its supporters as the embodiment of ‘the will of the British people’. A glance at the history of referenda shows why it remains so contentious a tool.
The first serious modern discussion of referenda occurred during the French Revolution and concerned the most sensitive of all the political questions: what to do about the King. In 1791, Louis XVI attempted to escape from France, having reneged upon his acceptance of all the revolutionary measures enacted since the fall of the Bastille in 1789. Once he was recaptured, the king was tried and condemned by the Convention. But opinion was then divided between those who supported the King’s execution (the Montagnards) and those who believed that this decision should be made by the ‘people’ through a referendum (the Girondins) – the hope being that the rural population would be more merciful towards the King. The English radical Tom Paine, a member of the Convention, opposed the proposal to use a referendum. He argued that it contradicted the principle of representative government. Instead, Paine suggested that rather than face execution, the royal family should be banished to America.
Although the Girondins failed, the potential use of the referendum as an instrument of power was revealed. Subsequent uses of referenda or plebiscites in France were designed to legitimate actions outlawed by the Constitution. After the coup of 1799, by which Napoleon became the sole Consul, the Senate rejected his ambition to be declared Consul for life. In 1802, therefore, he held a national plebiscite, which endorsed this claim, and in 1804 enabled him to declare himself Emperor of the French.
Similar uses of the referendum as a means to legitimise unconstitutional changes of government were employed in France in the aftermath of the Revolution of 1848. By these means, Louis Napoleon, nephew of Napoleon Bonaparte, was able first to remain President for ten years, and then declare himself Emperor. In order to evade the new Republic’s constitutional requirement that the president stand down after one term, Louis Napoleon mounted a coup on 2 December 1851. The National Assembly was dissolved, its attempt to restrict the suffrage rescinded, and universal male suffrage was restored. By means of a referendum on 22 December 1851, Louis Napoleon was able to secure the supposed support of 92% of the voters for his action. In January 1852, a new Constitution was endorsed by a referendum which extended his mandate by ten years. In November of that year, the Constitution was further modified to enable the re-establishment of the (Napoleonic) Empire with a hereditary crown to be assigned to Louis Napoleon and his heirs. In the plebiscite which followed, the change was alleged to have been ratified by an astonishing 97% of the electorate.
Now designated Emperor, between 1852 and the Franco-Prussian War of 1870, Napoleon III resorted to several further referenda to buttress his power. By the 1860s, despite a move towards liberalism, opposition to his regime had grown, supported by Republicans, Socialists and Catholics. French foreign military adventures had foundered; and Napoleon’s partial support for Italian independence was attacked both by Catholics and nationalists, while the Prussian defeat of Austria had undermined French pretensions to European hegemony. In the 1869 election, more than three million voted against him. In desperation, on 8 May 1870, Napoleon III turned to another referendum, in which he secured more than 7 million votes in support of his liberal reforms. Just a few months later, caught up in a foolish and unnecessary war against Prussia, he was defeated and forced to surrender at Sedan on 2 September 1870, and his Empire came to an end.
In Europe, the next major resort to the politics of referenda occurred in Germany in the years following its defeat in the First World War. In a referendum of 1929, 94.5% of voters supported the bill that renounced Germany’s assent to the 1918 Treaty of Versailles, and refused to make further reparation payments to the victorious powers, as laid down by its terms. But the turnout was only 14.9%, well below the 50% required by law. The referendum had been put forward by an alliance of right-wing nationalist parties, and first brought the Nazi party into national prominence. Its appeal was then further magnified by the Wall Street Crash of 1929, and the collapse of the German economy. In the Reichstag election of 1930, the Nazi party won 107 seats, and therefore became the second largest party in Germany. Since at this point, no stable majority was attainable in the Reichstag, other parliamentary parties were forced to negotiate with them. The stance of ‘the National Socialists’ did not look so extraordinary in a situation where successive German Chancellors felt compelled to rely on emergency powers to bypass the unpredictable behaviour of other Parliamentary parties. By 1933, the Nazis, while not possessing a majority in the Reichstag, had become its largest party, and Hitler became Chancellor.
Hitler quickly acquired plenary powers. He legitimated his illegal merger of the offices of Chancellor and President by a referendum held after the death of President Hindenburg in August 1934, and secured the supposed support of 88% of the voters. This result had been assisted by widespread intimidation including the stationing of Brownshirts at polling stations. Groups of electors belonging to particular associations were marched to the polls and in some areas, the result was a victory by more than those on the electoral list. Subsequent referenda approved the military occupation of the Rhineland, the adoption of a single party list for the 1936 Reichstag and withdrawal from the League of Nations.
As in the case of the Empire of Napoleon III, referenda were used as the means by which an unscrupulous and unconstitutional regime secured a supposed democratic legitimacy. It is not surprising that the post War German Constitution declared that referenda were illegal.
Over the last two centuries, more cautious and defensible forms of referenda had also developed. They have been employed in Switzerland; and they are employed at a state, but not at a federal level, in the United States. Generally, in these cases, the questions posed have been precise and amenable to simple answers; questions like ‘should teenagers be allowed to purchase alcohol under the age of eighteen’? The context for such questions has also often been local, like the desirability of a particular planning proposal or traffic scheme. In democratic states based upon representative government, the use of referenda to answer large and complex questions of governance has generally been avoided.
In Britain, there was never any serious support for the direct sovereignty of the people such as was proclaimed in France, or for the referenda these were meant to legitimate. From the settlement of 1689 following the Glorious Revolution, there had been broad support for a Mixed Constitution. This meant that parliamentary sovereignty now encompassed a constitutional monarchy and a representative system of government. Representative government, both in Britain and America, was celebrated as the accepted alternative to the attempts by the followers of Rousseau to vest sovereignty directly in the people by other means. In Britain over the course of the nineteenth century, there were repeated struggles around the extent of the suffrage – who should be entitled to vote, and on what terms. There was also – and still is – opposition to an indefensible second chamber consisting either of hereditary peers or government appointees. But given a proper democratic mandate, there has been no significant opposition to the idea of a second chamber, as the examples of many Commonwealth countries testify. Nor has there been serious opposition to the idea of a constitutional monarchy, providing the office is not abused. In Britain, from 1689 to 1975, there were no referenda, nor any pressure to employ them.
Britain’s employment of referenda began in 1975, when it was used to gauge support for continued membership of the European Community, which the United Kingdom had joined in 1973. The incoming Labour Cabinet was split and ministers campaigned on both sides, but 67% supported continued membership, and so the deep divisions which might have ensued were avoided. The pressure of nationalist parties upon the slender majority upholding the Callaghan government led to the holding of referenda to establish devolved assemblies in Scotland and Wales in 1979. But these failed and the government was defeated in the ensuing general election. There were further referenda on devolution in 1997, 2011 and 2014, and one or two on other issues ranging from the Northern Ireland Good Friday Agreement, to the adoption of a mayor for London. But there were no further national referenda until 2011, in which a complex and ill-fated Liberal proposal for an alternative voting system received scant support.
The Brexit proposal was a different matter. As the history of referenda in France and Germany suggests, referenda have rarely been conceived as a means of resolving fundamental questions of democratic legitimacy, but rather as a quick-fix to shore up political support. In 2016, it was a clumsy way of silencing an irritatingly vocal Tory right; and it was opposed both by Osborne and by Clegg. But Cameron’s proposed referendum was not supposed to happen, since his party did not expect to win the election of 2015 outright – and his previous coalition partners, the Liberal Democrats, would have vetoed such a move. For this reason, little thought was given to the warnings against the idea that complex questions might be resolved by a swift and decisive expression of ‘the will of the people’. The referendum went ahead without regard to the danger of lies, exaggerations and misinformation. As it turned out, all those warnings proved more than justified.
At stake are not just the dire economic or geopolitical consequences which Brexit is likely to bring. Supporters of Brexit will no doubt dismiss parallels between Britain and Bonapartist France or Weimar Germany. Nor is the nation facing the prospect of an Erdoğan-style dictatorship. But this is no reason to be complacent. A referendum is little more than an opinion poll taken on a particular day. All sorts of immediate and contingent factors might affect the result, and it is for that reason that in most contemporary parliamentary democracies, a two thirds majority is generally required when constitutional changes are proposed. What is worrying is the way in which the referendum has already subverted the normal functioning of parliamentary democracy. In so far as deliberation occurred in the national media in the weeks before the referendum, argument on both sides was generally sensational, irrelevant or inaccurate.
Furthermore, following the referendum, in place of active parliamentary discussion, the most MPs have behaved, not as representatives, but as delegates. They cited the will of their constituents or of the ‘nation’, rather than employing their own judgement and voting according to their own estimation of the common good. At worst, their behaviour has resembled that of communist congresses or mass assemblies, in which the emphasis is upon unanimous and unqualified assent. Yet, as Ken Clarke has stated, following Edmund Burke in the Article 50 debate, ‘if I no longer give you the benefit of my judgement and simply follow your orders, I am not serving you: I am betraying you’. MPs have been cowed into silence by intimidating pressure groups or fobbed off by fatuous tautologies such as ‘Brexit means Brexit’. Parliamentary democracy is in danger.
Moreover, there has been an appalling abdication of responsibility on the part of those supporting Remain in both parties. The result is worse than a defeat in an election, which can be reversed a few years later; it is the passive acceptance of a course of action with long term or permanent consequences, a course of action which will diminish the chances and opportunities of their children and grand-children.
The Brexit process is already far developed, but it is not too late to change. This is an issue which goes beyond the conventional boundaries of party politics. Those who believe in Remain should rally around the position adopted by Keir Starmer, to oppose any measure which leaves Britain in a worse position than it enjoyed as a member of the EU. In that situation, MPs from all parties must grasp the opportunity to bring this dangerous and thoughtless experiment in populist democracy to an end. Failure could result in Britain’s very own experiment with unscrupulous or unconstitutional government.