“The people have spoken, and their wishes must be respected.” We have been hearing a lot of this recently, and not only from the majority who want to see what they voted for realised. There seems to be a broad acceptance of the proposition by the minority also.
I do not want to question democracy itself – as Churchill once famously observed,
No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…
But I do want to cast the spotlight on this curious understanding of what democracy means: that a bare majority of those voted on a particular day must prevail in the argument.
As an understanding of democracy, I think this is both reductive and insular. Reductive, because it is just not as simple as that in a modern social democracy. Insular, because it is not like that in many other modern social democracies. Somehow, it seems that winners and losers alike have caught onto a notion that the bare majority of those who voted on a particular day must prevail; seemingly unaware of the counter-arguments that regularly prevail elsewhere.
Briefly, therefore, I first set out the problems with democracy seen this way. Then I elaborate upon three very common mechanisms used across the globe to try to prevent the kind of constitutional chaos we have seen in recent days.
So what’s wrong with this view of democracy?
There are various problems with particular variants of electoral systems, such as first-past-the-post, or proportional representation, which may be addressed by tweaking the system. Here, I am not interested in those weaknesses. Rather I suggest that there are three more fundamental problems with the proposition that democracy means that a bare majority of those who voted on a particular day must prevail.
- What about the minority? Democratic States have always had to come to grips with what Alexis de Tocqueville and John Stuart Mill called “the tyranny of the majority“. The reductionist view of democracy allows a majority to tyrannise a minority. It is all very well saying, with glee, “we have a democratic mandate – get over it”, but if your country has been through a period of ethnic cleansing, or of sectarian violence, or apartheid, you will perhaps more fully appreciate that your journey to democracy must find a way of protecting minorities, and not only of upholding the wishes of the (potentially tyrannical) majority. So mature democracies must include mechanisms for protecting the rights of those who lost the argument.
- What about the unenfranchised? The idea that it is a majority of those who voted who should prevail raises stark questions about how we select those entitled to vote. These questions take many forms. Who are the enfranchised, and why? All-too-often, it is the more vulnerable in society who do not have a vote. And what about the boundaries? There is no reason why it should be uncontroversial. In a different context, Lady Hale, Deputy President of the Supreme Court, perspicaciously observed that
It is not at all obvious that the franchise should be decided only by those elected under the present franchise. Parliament is rightly proud that it represents and is accountable to the people. But members elected under the present franchise do not represent, and are not accountable to, the people who are currently disenfranchised.
- What about another day? So, democracy does not well-serve the minority who lose; it does not well-serve those who are disenfranchised; and now a third problem is that it does not well-serve long-term as opposed to a short-term interests. Because of human nature, we tend to vote in our short-term interests. It is why it is so difficult to address long-term problems such as climate change, the the consequences of demographic trends – such as the growing elderly population in the UK, and the consequences of international trends – how we deal with the water and the air, the animals and the geology that we all share across borders, for example. And while we are talking about the problems of focusing upon what we want today rather than the longer term, it is well-worth reflecting how views on this referendum shifted during the course of this referendum – people who arrived at the polling booth with a different view from that they held a few weeks earlier; and people who will hold a different view once they see the consequences of the view they held in the polling booth.
To be very clear, I am saying that these are all known problems with the view of democracy that a simple majority of those who voted on a particular day must prevail. And I am saying that most mature democracies have in place protections and mechanisms to protect people from the adverse consequences that might arise from the application of such a simplistic view of what democracy means. And I am saying there is no particular ethical basis for disregarding the rights of minorities; no particular ethical basis for disregarding the disenfranchised, no particular ethical basis for ignoring longer term and wider spread interests. The authority of the notion of “democracy” simply does not spread as wide or as deep.
So I turn to examine three of the many mechanisms out there by which mature democracies routinely protect these wider interests.
This is perhaps the most fundamental mechanism. The idea is that certain rules are too important to be subject to the vagaries of simple majority voting. And therefore, those rules are “entrenched”, by requiring a higher democratic mandate before change is triggered. This is exactly what has been suggested in the 2nd referendum petition. And I am astonished by all the accusations that the millions signing it are simply “bad losers”-because the reality is that constitutional provisions are entrenched in this way the world over, day-in and day-out. If it were not so, constitutions would be too precarious to protect the democracies they are there to protect.
We also see such mechanisms at a micro-level, for example in company law. Routinely, the constitutions of companies include provisions that entrench the company’s constitution itself, so that minor matters can be changed on a simple majority, but amendments to the Articles of Association of the company require more than a simple majority. We recognise why this is an essential protection for the stability of a company; other countries recognise why it is an essential protection for the stability of their democracy. Heaven only knows why the UK seems to struggle to grasp the idea that entrenchment protects rather than diminishes democracy.
Entrenchment can also take other forms. So, in the aftermath of a period of sectarian violence, entrenchment might (and does, in Northern Ireland) take a form that expressly prevents one side of the sectarian dispute reversing the peace process on a simple majority. In other places, it takes the form of a “cooling-off period”, requiring checking-in that the voters still want to go ahead. Or in many constitutional settlements, a legislature having two chambers elected in different cycles, making it more difficult for today’s favoured representatives to carry the day over yesterday’s or tomorrow’s.
2. Constitutional checks and balances
The philosopher Montesquieu is famed for setting out the idea that three branches of the State, namely the legislature, the executive, and the judiciary, ought each to operate as a check and balance upon the others. As I see it, in the UK, the practical out-working of the idea of the “Sovereignty of Parliament” looks very different indeed from the idea of “separation of powers” envisaged by Montesquieu. For, in the United Kingdom, one of the three branches, the legislature, is constantly arguing that the nature of its democratic mandate means that it ought not to be kept in check. But I want to get across that this idea of democracy will seems strange to other modern democracies.
Take the idea of a Constitutional Court. Many countries have a constitutional court, with a remit to uphold the Constitution. Such a Court can rule on the lawfulness of what the legislature does. The Court can rule that other branches are behaving unconstitutionally. The idea that no Court should keep government or Parliament in check may seem like common sense and democracy in this country, but many countries with a Constitutional Court find the idea that there is a check upon Parliament and government is a thoroughly reassuring feature of their democracy. They do not want their Constitution to be subject to the whim of a simple majority of those who vote on a particular day.
Or take the example of the United States, where in recent years, we have seen the practical results of an elected president of one political hue and an elected legislature of a different hue. They act as checks and balances upon each other. They may even need to compromise a little, in order to achieve parts of what they want to achieve. Is that undemocratic? When both sides have a democratic mandate, who is to say which of them should prevail?
3. International Treaty Obligations
The third constraint to explore is international treaty obligations. So, the nations of the world responsibly try to get round the table to try to look at some of the bigger-picture issues, some of the longer-term issues, and to achieve international co-operation to resolve them. The results are International Treaties. What then? Should we see those international treaties as an important mechanism whereby we try to address the flaw in democracy, that it does not deal well with longer term issues? Or should we see those international treaty obligations as simply something else that each nation can simply discard on a whim, based upon a simple majority of those who vote on a particular day? At the very least, when we do interfere with international treaties, we need to be aware that
- we are interfering with the rights, remedies and protections of other electorates than ourselves, who will necessarily have no reason to feel obliged to honour our simple majority vote; and
- in so doing, we will have weakened the international community’s ability to address those problems for everyone else as well as ourselves.
There are different mechanisms for international treaties to take effect in domestic law, frequently characterised as monism and dualism, and variants of the two. Monism means that the International Treaty takes effect in domestic law in one step, simply upon being entered into by the country concerned. Dualism means that entering into the Treaty obligation does not, in itself, mean that the Treaty enters domestic law; and an additional act of the legislature is required for it to do so. Germany is a good example of a Monist system, the UK of a Dualist system.
Therein lie a series of ironies in the Brexit debate. For the United Kingdom conventionally expects Parliament rather than government to have the last word in our International Treaty obligations; and yet it is being suggested that our withdrawal from those same obligations might be brought about by government rather than Parliament.
An Unwritten Constitution?
Famously, the United Kingdom has an unwritten constitution, though in debates about Europe, the President of the Supreme Court has questioned whether we have a constitution of any value at all:
…if we had a constitution, this would presumably have primacy over decisions of the human rights court in Strasbourg and even those of the EU court in Luxembourg. Accordingly, where those decisions appeared to be inconsistent with any fundamental constitutional principles, those principles would prevail.
At the moment, without an overriding constitution, it is very difficult for a UK court to adopt such an approach, but it is an approach which, for instance, the German constitutional court has shown itself quite ready to take when appropriate.
Those two views – unwritten or non-existent – may not be so far apart. For the problem of having an unwritten constitution is that it is possible for different people to argue differently what it would look like if it were written down, to argue which parts of it are binding and which are merely Convention, to argue that the Courts have no role in interpreting it, to argue that Parliament has the last word on the Constitution. And if this ends up meaning that a simple majority in parliament voting on a particular day, can change our constitution, then there simply is no constitution entrenched in the way that most modern democracies would understand a constitution to be.
Note this, however: sovereignty, throughout this piece, has referred to the sovereignty of Parliament, not the sovereignty of the people.
And where all this leads me is simply here: there is no ethical, legal or constitutional reason why Parliament must carry out the wishes of a simple majority of those who voted last week.
Much has been made in recent days of the idea that our problems have been caused by not knowing the way ahead in the event that people voted to leave. That is simply a part of the problem. A bigger problem is that we never understood that we were peculiarly vulnerable to constitutional chaos because, unlike most modern democracies, we do not have a written constitution, entrenchment, clear separation of powers with checks and balances, an acceptance of our International Treaty obligations…
A simple majority of those who voted on the day was always going to diminish democracy.