The other day I wrote a post-Brexit reaction which focused on the rather specialised question of how deliberative democrats ought to respond to politics in a ‘post-fact’ society.
In that piece I raised but didn’t specifically respond to claims about parliamentary action and bare majorities for issues of such significance. Here’s that response.
First, the issue of whether 50%+1 was the right threshold, or whether a super-majority like 60% or more should have been the target. Every argument about thresholds relies on a belief about what the right thing to do is, and whether justice is on the side of the bigger or smaller group. If you worry that small groups of die-hards will block progressive moves, then you don’t want to give small groups the power of veto, and should support the 50%+1 hurdle – most of us don’t want old white men preventing changes to womens’ rights, for instance, or a minority of denialists blocking climate science funding. However, if you think that smaller groups are the oppressed ones – LGBT people, indigenous people, even small states in a federation – then you do want them to have the power to block attempts to take their rights away, and super-majorities are one way to achieve that. But there are other ways too, including bills of rights, courts and ombudsmen; or regional, ethnic and gender representation quotas.
We could flip all of those examples on their heads, by the way. They assume that my readers are liberal progressives; but if you’re conservative, then the examples all push in the opposite direction – you often do want veto power over abortion rights, you do want to insist on individual liberty because of its effects on group privilege. And that’s just the point: the stance you take on the threshold question depends on your views about justice and rights, and whether they are minority or majority positions. As far as I know, this is as true of political theorists as it is of ordinary politics, by the way – send me references if you think I’m wrong.
The key here is context. What is the question and who is affected? What are the background social, political and economic circumstances? What is the communication environment like? What are the power relationships? What checks and balances are there? Simple majorities might be best in a society with lots of different groups, all of which are roughly equal and which don’t always line up on the same side of every argument; or in political systems with strong power-sharing institutions, for example. Super-majorities might be needed in societies without many ‘filters’ or other veto powers; with group interests which generally always line up (creating ‘permanent minorities’) or with enormous power imbalances.
In other words, the question about thresholds can’t be answered in the abstract. It can only be answered in context. It is about the system, who’s affected, and the power relations.
So, while in the abstract I find the simple majority decision rule appealing – change is too hard otherwise – in the Brexit context of increasing group isolation and permanent minorities, capture of the state by a divided, rancorous elite, a lack of effective institutional linkages and filters, a media hypnotised by balancing ‘opinion’ rather than evidence, etc etc, I too think that a super-majority of some sort should have been used. Or no bloody referendum at all – use the other tools available.
The alternative would have been a simple majority referendum that was preceded by a some focusing, deliberative institution – perhaps a constitutional convention as in Ireland or some broad public engagement exercise, as in Scotland.
But that brings me on to something in Grayling’s piece, and in some legal opinions, which is that Brexit is far too important to leave to a majority vote. I agree in a way, but how are we to judge ‘importance’? We could try to pre-define important issues in terms of their likely reach and impact, but this is not always known in advance, and different people will judge impact differently – conservatives have long claimed that the sky would fall if marriage equality acts were passed, for instance. Following that example, we could try to ask ‘Important to whom?’ or ‘Important to how many?’ Does it matter to everyone or to signficant (what does that mean?) segments of society? But that doesn’t necessarily get us terribly far. Equal marriage rights matter a very great deal to LGBT people, but many equal marriage advocates say (here, for example) that it matters not a jot to anyone else, so why should everyone else get to vote in a referendum on the rights of the directly affected minority? (Actually, I have some views on that too, but that’s a topic for another day)
We could try to short-circuit all that and ask ‘Is it a constitutional issue?’, which is, by definition, ‘important’, because the rules are said to affect everyone. But, as Jon Elster points out, that’s something of an idealisation of constitutions – real constitutions are often a mish-mash of vague and warm intentions, nationalistic sentiment, fundamental principle and piecemeal law. So just saying ‘It’s a constitutional matter’ does not necessarily help very much – and yes, I am reminded of Father Ted and his marvellously vague avoidance phrase.
Still, all that is to speak about what might have been. We are where we are. What should we do now? Are Grayling and others right to say this should all be handed over to elected representatives who should follow Burke’s advice and use their independent judgements, regardless of the (non-binding) referendum result?
The Burkean argument is a fantasy – real representatives in parliaments cannot operate according to his idealisation. It ignores the way we form governments, party roles and pressures; it ignores the political power of a popular vote; it ignores the interests in play.
But it is right to say that there is time to repair this. If I were leading Britain, I would:
- get a new government in place, pronto – perhaps with new elections but more likely just a new cabinet under the new leader;
- set out a very clear, specific ‘What happens next’ manifesto which sets out a clear path to triggering notice under Article 50 and encourage the EU to be clear about the consequences;
- ensure that the implications really sink in – economic, social, political damage needs to become a little more clear than it already is;
- hold a constitutional convention à la Ireland to focus discussion of the pathway and the implications;
- hold a second referendum.
There are precedents for a second EU referendum after a first-time ‘no’ – Denmark in 1992 and 1993, and Ireland in both 2001-02 and 2008-09. But just handing this over to politicians to exercise their judgements is not an option in this case – the result would be more fuel to the populist fire.
The tragedy here is not simply that there was a simple majority referendum that went the ‘wrong’ way, at least according to experts I take seriously. The tragedy is one of elite disconnection from ordinary lives, on the left and the right; a lack of effective institutions to channel and engage people; a damn-near-criminal set of changes to education, welfare and housing policy which chuck large numbers of people on the rubbish heap; and the deliberate distraction of people from those issues by stoking fear of strangers. We can fix the ‘effective institutions’ part and address some parts of the context. We should. Whether the UK’s new leadership – when it finally gets one – is willing and able is another matter.