There is a move to use Royal Prerogative to move forward the Brexit agenda. Some believe that this is fair, others that it flies in the face of democracy. The Oxford English Dictionary defines democracy as “A system of government by the whole population or all the eligible members of a state, typically through elected representatives”.
This doesn’t really tell you what democracy is. Most students of politics characterise democracy by legal equality, political freedom and rule of law. This means that citizens eligible to vote should be equal before the law. They should have the right to pursue their own political beliefs. The law is the arbiter of both eligibility and any limits on freedom.
However, these characteristics rely on a system working to produce an outcome that it consistent with the beliefs of the majority of the population of eligible voters.
Characteristics of Democracy
First eligible voters understand the system. There are a number of systems of democracy, compare the UK and US systems for example. The US runs a presidential system with three distinct branches of government the executive, the legislature, and the courts. The UK runs a parliamentary democracy with a constitutional monarchy. Except for those particularly interested in politics, those living in one democracy find the operation of the other to be slightly obscure. This doesn’t really matter, as long as the eligible voters in each democracy understand the operation of their own democratic system.
The second part of the system is that the government elected by the process will operate according to the manifesto and commitments it made before the election. Events will drive deviations from any manifesto. Some commitments will not have the expected outcome. But the commitments that are made should drive the general direction of the government. Where those commitments cannot be enacted, do not have the expected outcome or where events have caused new considerations to be made, the third part of the system comes into play.
Holding to Account
The third part of the system is that the elected government is held to account on a day-to-day basis by other elected officials. In the UK, this happens by debates in parliament, by select committees and by question times for senior ministers.
The fourth part of the system is perhaps the most crucial. There must be a system of reporting back to the electorate the outputs of the other three parts of the system. This requires a disciplined and enquiring free press. Whilst some bias is acceptable in the press, people should generally understand the bias. The bias should not be too extreme. There should be some balance so an alternative view has a similarly loud voice. There should be a clear distinction in the press between fact and opinion. The activity of all parts of the government, including opposition and scrutiny, should receive equal and thorough scrutiny.
Has this been applied?
In the UK in recent months, following the Brexit vote, there has been a question of democracy being discussed by both those who are leading the Brexit charge and those who oppose it. There has, of course, been a referendum on 23 June. Those who believe in Brexit want to see the “will of the people” enacted. They believe that any deviation from a policy of a withdrawal from the European Union to be anti-democratic. They suggest that discussion in Parliament is superfluous. That MPs discussing Brexit is an expression of subverting the vote on 23rd June. They denounce those who still argue that the UK should remain a part of the European Union as “Remoaners”. This opinion supports the use of the Royal Prerogative.
The “Remoaners” on the other hand, feel that enacting the raw result of a referendum and or, worse than that, a version that was neither part of the referendum question nor a part of the campaign, would itself be antidemocratic. The “Remoaners”, therefore, oppose the use of the Royal Prerogative. So let’s judge these two opposing views against these standards.
Is the system understood?
So first of all, let’s judge if the system is understood by most voters. This needs close consideration: it is very easy to retrofit one’s opinion in order to come out with the outcome that one desires.
The “Remoaners” suggest that the Act that allowed a referendum to take place in the first instance, the European Union Referendum Act 2015, has nowhere in the text that the result of the referendum is mandatory upon the government. They further note that this is in direct contrast to the Parliamentary Voting System and Constituencies Act 2011 where at section 8(1) it states that:
The Minister must make an order bringing into force section 9, Schedule 10 and Part 1 of Schedule 12 (“the alternative vote provisions”) if (a) more votes are cast in the referendum in favour of the answer “Yes” than in favour of the answer “No”, and (b) the draft of an Order in Council laid before Parliament under subsection (5A) of section 3 of the Parliamentary Constituencies Act 1986 (substituted by section 10(6) below) has been submitted to Her Majesty in Council under section 4 of that Act.
Is the result of the Referendum mandatory?
In this Act, therefore, it is quite clear that the result is mandatory. To “Remoaners” this, combined with the supremacy of parliamentary sovereignty, suggests to that in order to make a referendum mandatory a provision in the referendum act must be in place that makes it so. The absence of that provision in the European Union referendum Act 2015 suggests that the referendum result is simply advisory. Those in favour of Brexit suggest exactly the opposite. They suggest that democracy stems ultimately from the will of people. The will of the people in its purest form is a referendum. There is nothing in English law to suggest that the will of the people, once expressed in a referendum, can be overturned. We must respect the result. If Parliament has any role, it can only be to determine how the result is enacted. To back this up they quote a piece from the information leaflet released by the government before the referendum, which stated that the decision would be enacted.
This battle is currently being fought in the courts. The result will soon be known and this short discussion is not intended to be a legal paper. However, the one thing that this dispute makes clear, is that the exact nature of the constitutional position is ambiguous and so the electorate in this referendum were unlikely to understand the nuances of the system by which this referendum took place.
Is the Manifesto issued before the referendum being adhered to?
So the second question is about the manifestoes of either side. Had the vote gone the other way, in other words there was a majority to remain within the European Union, it is fairly clear that the outcome would have been to do just that. However, the vote was a marginal vote in favour of leaving the European Union.
The press has been full of comparisons between a hard Brexit and a soft Brexit. Comparisons between the Norway and Switzerland model. Suggestions that we are either in or out of the European economic area, common market or free trade zone. In other words, the exact nature of the ambition of the Leave campaign was unclear. So it is unclear what people think they voted for.
What were the consequences?
Neither was there any agreement on the personal consequences of a leave vote. The leave campaign was unclear on the potential of farming subsidies being continued. The leave campaign was unclear on the consequence for fishermen. It was unclear on support for the myriad of things supported by European Union funds. These issues were dismissed as detail. It was quite possible for a farmer who voted leave to believe in continuing farming subsidies. He could believe in the continuation of the commitment to build local community facilities. He could believe that the UK would remain in the European Free markets. It was equally possible for another resident of the same area who voted leave to believe that farming subsidies would be stopped. That funding for local community projects would cease. That the UK would abandon free markets. Essentially, these two people would have both cast votes for leave. They would have opposite intentions. It is apparent that there is ambiguity in the interpretation of their votes.
Were the main issues presented clearly?
The main issues (trade, migration and sovereignty) were also presented with much ambiguity. People voted leave in the belief that migration could be stopped, without necessarily leaving the free trade area. They were led to believe, despite taking part in a referendum that was raised in the UK Parliament, that somehow the UK Parliament was not sovereign. People were also allowed to believe that trade deals were quick and easy. That they only involved tariffs. That the UK could step into a World Trade Organisation deal, with little impact. These were all spurious claims, and unlikely to ever have been true.
In addition to this, a number of statements were made as part of the campaign which were factually untrue, either in whole or part. Those in favour of Brexit state that this is unimportant. Misleading statements were made on both sides, and so the public were equally misled in both directions. However, the Remain side were quite obviously aiming to retain side status quo. The leave side were asking people to vote for a new paradigm. People understand the status quo as it is part of their current experience. A new paradigm and the impact of the consequent changes requires careful explanation.
So between the misinformation and the perfectly legitimate multiple options, it is quite possible that some people were misled. It is quite possible that those who knowingly voted to leave did so with a different end in mind to that which is now being discussed. There was no clear manifesto for Brexit and quite obviously, therefore, people could not have voted for one.
Is the elected outcome being held to account?
The government proposal at present is that Brexit will be achieved by activating Article 50 of the Lisbon Treaty using Royal Prerogative. In other words, Parliament will have no say. No opportunity to debate and consequently no opportunity to hold government to account.
Those in favour of Brexit, argue that Parliament will only seek to defeat the will of the people. They suggest this because there is an inbuilt majority in Parliament for the UK remaining within the European Union. They argue this despite those MPs also being elected, and (from the main parties at least) all elected on pro-European manifestoes. However, as discussed above, it is not clear what the people voted for. So a failure to properly scrutinise a forward plan is effectively handing over control to the executive. Our parliamentary democracy is constructed to prevent the untrammelled power of the executive, and to hold it to account.
The answer to this question cannot properly be given until the outcome of the court case is known. However, we do understand that the intention of the government is to limit as far as possible the scrutiny of Parliament over their plans for Brexit. Essentially, the Government is trying to avoid scrutiny.
The Fourth Estate
The behaviour of the press and broadcast media is perhaps the most concerning aspect of the whole Brexit debate. Following the referendum in 1975 the printed media have followed an agenda almost exclusively of anti-EU propaganda. From bendy bananas, workers’ rights and EU regulation through to the budget, Britain’s contribution and that the EU spending priorities. Everything has been criticised in a steady drip, drip, drip that has lasted 41 years. As the date of the referendum approached this anti-EU sentiment became rabid and gradually more xenophobic.
The EU was blamed for increasingly bizarre problems. The lack of school places and the unavailability of GP appointments. Immigrants were blamed for taking jobs. The complexity of trade tariffs and regulations were reduced to “the Germans will still want to sell us their cars”. Ultimately, we were told that the stabbing of Joe Cox MP by a man shouting “Put Britain first”, should not be politicised.
Even the venerable BBC, previously known for its balance and fair reporting, failed to challenge obvious lies such as the £350 million a week for the NHS.
Essentially our press, mainly registered abroad to avoid paying British tax, and broadcast media only discussed the ballyhoo. They did not discuss the substance of any debate. The press were more interested in the personalities than the politics. They failed to question or criticise obviously misleading statements. On this basis, the reporting back of what the European Union does, how it functions, its advantages, it failures and the real benefits and problems of membership, failed.
Is this democracy?
Fairly clearly, the whole process of the referendum failed any of the tests that fair minded people would set for a democratic process. It is also plain that the people who promote Brexit want to continue in this way. Both the Daily Mail and the Daily Express have made clear their desire that anyone questioning Brexit should have their patriotism called into question. “Remoaners” should just “shut up”.
They seem to have found a champion in Teresa May. She would not condemn the childish and pathetic act of a local conservative councillor, who set up a petition requesting that the Treason law was changed to include anyone who promoted UK membership of the European Union.
Is this democracy, when people have to go to court to persuade the Government to allow Parliament to debate the most significant change to our constitution for over 40 years? Probably not, but apparently it was what we “all overwhelmingly voted for”.