This week we ask: Can the Brexit referendum can be regarded as consistent with political constitutionalism? Or did it represented the sovereign will of the people?
This week we welcome Professor Richard Bellamy back to the podcast. Richard has appeared twice before on the following topics: ‘Does the UK Still Have a Political Constitution’ (May 2021) and ‘Checks and Balances in Democracy’ (Oct 2020)
Richard is Professor of Political Science at UCL. He is a Fellow of the British Academy and, this academic year, is also Visiting Professor of Ethics and Public Policy at the Hertie School, Berlin.
Richard recently released a new paper, ‘Political Constitutionalism and Referendums: The Case of Brexit’, published in Social & Legal Studies, and a paper entitled ‘Political constitutionalism and populism’ in the Journal of Law and Society.
SUMMARY KEYWORDS
referendum, people, parliament, vote, issue, brexit, constitutionalism, constitutional, rules, process, brexit referendum, constitution, view, favour, ucl, eu, argument, political, democratic, parliamentary sovereignty
SPEAKERS
Richard Bellamy, Alan Renwick
Alan Renwick 00:06
Hello. This is UCL Uncovering Politics. This week, we ask: was the process of the 2016 Brexit referendum legitimate, and what does that vote tell us about the place of referendums in general?
Hello. My name is Alan Renwick. And welcome to UCL Uncovering Politics – the podcast of the School of Public Policy and Department of Political Science at University College London.
We're talking Brexit this week – specifically, about the legitimacy of the referendum on the UK's EU membership that took place in June 2016.
Since the vote many people – particularly, but not exclusively, Remain supporters – have questioned the processes around that vote. Did people have sufficient reliable information to make an informed choice? Was the franchise right? Should there have been a higher threshold for victory?
Well, in a new paper UCL's Professor Richard Bellamy, himself a Remainer, challenges such views and argues that, in most respects, the referendum process was well designed.
He also goes deeper and explores whether holding a referendum on this issue at all was compatible with the principles of so-called 'political constitutionalism' that are at the heart of the UK's constitutional tradition.
Well, I'm delighted to say that Richard – who is Professor of Political Science here in the UCL Department of Political Science and, this academic year, also Visiting Professor of Ethics and Public Policy at the Hertie School in Berlin – joins me now.
Welcome to the podcast – or rather welcome back – Richard. It's great to see you again. Thank you for joining us all the way from Berlin.
And let's begin by looking at how the Brexit referendum was run before we get into this issue of whether a referendum on the on the Brexit question was appropriate at all.
So in the paper you highlight the franchise, the threshold for victory, the referendum question, the conduct of the campaign. Do you want to maybe pick up just some of those themes and explain the concerns that have been voiced about them and then your also your own analysis of them?
Richard Bellamy 02:16
Yes. So I mean, as you said, critics of the referendum raise a number of… I should say, you know, they are entirely valid points to make about it. However, I think that when one's looking at a process, and whether a process is legitimate, you have to, to a degree, separate the legitimacy of the process between what you think is the desired outcome. You shouldn't be, you know, seeking to... So in a way you also have to think: what process would I be happy with, even if it didn't give the result that I want?
And I think the other thing you have to think is not simply: is this the best process one could ever have? But also: is this process good enough, as it were? Because we'll disagree about process also as much as about outcomes, I think, often.
So when I went through these criticisms, I looked at them with this sort of slightly critical – and in a way distanced – approach. I didn't seek to see whether I fully agreed with them. I wanted to see whether the criticisms were strong enough to say the Brexit referendum process was totally illegitimate. And so I decided that probably wasn't the case.
So take the franchise. There were sort of two issues that were raised there. One was the age and the other was whether it should have included EU citizens who are resident in the country or not.
And so, you know, a legitimate argument was: well, we ought to lower the age to 16 because this is an issue which is going to affect people in the future, so the generation who are going to be most impacted by it. And of course, we also know that perhaps younger people were more likely to be Remainers than Leavers. Though it does seem also that they didn't particularly turn out to vote in this particular referendum and we don't know what really what the result would have been.
But so my view there was: yes, you know, that's a valid argument. On the other hand, the age limit across the world is round about 18 – it's a fairly standard one. So it's difficult to say that it was illegitimate per se not to lower it to 16. That it was 18 is it fits the 'good enough' argument.
And likewise I think with European citizens, people often sort of said: oh, they got to vote in the Scottish independence referendum, for example. But I think, technically, that was because at that time – and is still the case today, because it hasn't been rescinded the legislation – if you're an EU citizen resident in this country, you were eligible already to vote for local matters and-
Alan Renwick 06:09
-And for Scottish Parliament elections indeed.
Richard Bellamy 06:11
-And for Scottish Parliament elections.
So using that franchise, they were there. Whereas it doesn't seem to me to be illegitimate that the franchise that was chosen for the Brexit referendum was that of those who could vote in general elections. And I think there are even good grounds for saying that that was the appropriate group: people who had committed themselves to being citizens of the country and, you know, had formerly bound themselves to abide by its constitutional rules.
So again, whilst I can see that there is a case for having included them, I think there's also not a bizarre case, so not a sort of gerrymandered case – for not having included them. And therefore that's not an argument which rendered it illegitimate. So I don't know if you want me to go on about other versions but-
Alan Renwick 07:13
Yeah, I was going to ask about the threshold as well, which I think what you said about that in the article is very interesting. So you know, some people have argued that a 50% plus one margin in a one-off referendum might not have been sufficient to justify such a huge change in the direction of the policy compared with the direction we'd been in for decades. What was your analysis on that?
Richard Bellamy 07:39
Yeah. So I think, you know, if you have something which involves a supermajority – which is what people say perhaps you need for constitutional changes – that means that you're biassing the vote towards the status quo. You know, what you have to ask yourself is: would I be happy with that in all cases?
Clearly, some people – and there has been a long sort of standing criticism of the EU as having undermined British democracy from both the left and the right. You know, if they were correct in their argument and that this is entrenching an injustice, it would likewise be wrong to say they've got to convince an awful lot of people of that to change an unjust status quo.
So, you know, again, like many people who voted Remain, I'm rather in favour of a change to the electoral system to a more proportional representative system. If I think, you know, given all of the reluctance on the part of the British population to accept that change, you should add an additional thing, you'd say: oh, only if two-thirds of the population, say, or voters go for it, will it happen? I think that that was wrong because I think it's entrenching an injustice in our current electoral system that way, and one shouldn't put such a barrier to it.
So it was on that basis that I think that yes, if you're a democrat, you should be in favour of 50% plus one, rather than 75% or 60%, some other threshold, which would undoubtedly have made it much harder to change this, but also anything else you might want to change via a referendum. So again at the very least my argument would be that it wasn't a clearly illegitimate view to have this. So it's not one which you could sort of say: I've got a knockdown argument for why this referendum was wrong – it was a bad referendum. I also think that yeah, there are even good grounds for thinking it was a good decision.
Alan Renwick 10:02
Yeah, I've always agreed with that view on supermajority requirements that they do, as you say, they bias the result in favour of the status quo.
I guess I'm a bit more sympathetic to the idea that on a big issue, where it's important to ensure that the matter is thought through carefully and perhaps slowly, there is merit in maybe requiring two referendums. You know, there are some systems where you need to have two votes on an issue before it goes through, just to kind of make sure that it's not a flash in the pan majority that disappears very quickly. Do you have more sympathy for that kind of approach?
Richard Bellamy 10:41
Yes, I do. And indeed that is something which I then sort of argue for in the piece.
So I use an argument that's been used by a couple of other people to talk about bicameral chambers, where you have the second chamber as a kind of, as with the House of Lords, a scrutiny chamber. They look to Laurence Sterne's Tristram Shandy. And in that Mr Shandy is said to have been taken with the view, attributed to the ancient Huns, that they would make decisions twice: once drunk and once sober. The argument being that you want a bit of passion in politics and give people an outlet to their strong feelings. And you might say Brexit was one where were feelings were high. But then they also should soberly consider what this decision really means by, for example, having a second referendum on the details of what exiting would entail.
One of the reasons why I also like this argument is I think that one should adopt arguments that are sort of generalisable, as consistent with constitutional principles, rather than arguments which you know favour your particular preferred outcome. And, as I said, this is an argument which applies, some people have argued, to why we need a second chamber – the second chamber which does more detailed scrutiny work and puts forward amendments, which could then get soberly considered by the main legislative chamber, by the Commons.
So likewise you could see the second referendum as a moment of quiet, a more focused deliberation about what concretely this sort of 'taking back control' would actually involve, you know. Because I can quite understand why people in the moment of passion, as it were, they thought taking back control was a really positive thing. And, of course, there are many problems with the current British political system which might mean that that was a general feeling – that there was something wrong. And I think there is some evidence that people used this as a more general protest vote. But then I think it would be good, as a general thing, that people could have considered the proposal. So maybe if there was going to be such a moment, that would also have forced the Remain side to perhaps have accepted the line of the first vote, but maybe put forward something which was more sober and less hard Brexit-y than what we've actually ended up with.
Alan Renwick 13:55
Let's move on to the bigger question of whether a referendum was appropriate for deciding this issue at all. And your analysis here is based on the concept of political constitutionalism, which you've been writing about for many years. Do you want to first explain just what political constitutionalism is?
Richard Bellamy 14:14
Yeah. So political constitutionalism is the idea that what really does the work that we expect of constitutionalism – which is that people's rights are upheld, that their opinions are treated equally and are balanced against each other – is the way in which the democratic political system operates. Often when people think of constitutions, they think of a codified written set of fundamental laws that it's the job of the judiciary to uphold against the democratic system, possibly. Whereas the political constitutional view – I mean, of course, there are rules which govern the political constitution, but those are ones that it gives itself through statute, as well as being there through custom, which is the case with all constitutions. And it's the operation of that democratic system, I think, which is what ultimately defends our rights and upholds our equality of voice. And that the legal system is, to large extent, only as good as the democratic system.
I think one sees plenty of evidence of that in countries which have written codified constitutions, but perhaps they don't work quite like people would wish that they did. And the reason for that is that they're often in democratic backsliding countries, even well-established democracy. Some people would argue – I would – that if one looks at the legal constitution of the United States post-Trump, it definitely bears the marks of a degradation of its democratic system. And when people look to it when they believe it was working well, it was when the democratic system was working well.
Alan Renwick 16:24
And why might there be doubts about referendums in the context of political constitutionalism? Why might that be a difficult combination to have?
Richard Bellamy 16:33
Yeah. So I think it's thought to be a difficult combination because when people think about the political constitution as we have it, it's one which makes parliament sovereign. We have a representative democratic system which gives rise to parliament as the sovereign legislative body, whereas referendums seem to hand over the sovereignty over fundamental legislation anyway – possibly even not so fundamental – to the popular will. So that seems to undermine parliamentary sovereignty. And many references in the debate after the referendum, you know, people like Theresa May said: we are following the popular will.
So I do share the criticisms made by our esteemed colleague, Albert Weale, in his book on the myth of the popular will, that that is perhaps a form of democracy that lacks constitutional qualities because it doesn't involve in the sense giving weight to pros and cons of an issue which you get from a competitive political party system.
So I guess the question then is: does that make referendums illegitimate from this point of view? Or, as some people argue, does it show that the parliamentary representative democratic system isn't democratic enough because it's keeping some issues off the agenda if there's an agreement amongst the main parties that they don't want certain things discussed?
What I tried to do in the paper is sort of say I think there is a role for referendums, not on policy issues, but on constitutional issues. That, you know, like, what kind of electoral system we should have and should we be part of an international union which is going to alter to, to a degree, the way in which our constitution works.
But what renders that compatible with parliamentary sovereignty – and perhaps also compatible with the general idea of a political constitution – is, going back to the argument for two referendums, it's part of having a balancing of views. So you might sort of say: well, if parliament makes decisions about the constitution, that's also parliament making decisions about its own rules, and being a judge in its own cause.
So, you know, there are various ways in which you can seek to overcome that. You know, so in in Denmark constitutional rules have to be made and agree on both sides of an election, for example, by a parliamentary majority in which those rules have been up for grabs. And likewise you can see consulting with the people who are going to be under them can be another check: it will mean that you'll be less inclined to put forward rules which are basically bombs of gerrymandering of the system to favour the incumbent government. No check is fool proof, but it's one that could exist. Even though that would be a consultation with the people directly, I think that it would be consistent with parliamentary sovereignty, if the rules – the laws of the of the referendum – were governed by parliamentary legislation and what was subsequently decided was governed by parliamentary legislation and possibly then put to people in a second referendum.
So I see this possibility as fitting with the political checks and balances, as opposed to legal checks and balances, that give us attention to individual rights and to equality of voice, which are the prime virtues that we look for from constitutions.
Alan Renwick 20:56
So if I understand correctly there are three conditions that you've offered us there that may make a referendum legitimate in the context of political constitutionalism.
So one is about the topic: that if you have a constitutional issue, where other were otherwise in effect parliament would be deciding about its own powers, then that makes it more likely that a referendum is appropriate.
Then second, the referendum, the rules of the referendum have to be decided by parliament. So the referendum process is kind of embedded in a system of rules that parliament has been involved in creating.
And then third, at the other end of the process, the referendum is not itself decisive. And parliament again comes back into the process of decision-making to work out what should happen after the referendum has actually taken place.
Is that a fair summary?
Richard Bellamy 21:50
Exactly. That's right. Yeah, that is.
Alan Renwick 21:54
So how then does that relate to the Brexit referendum? So I guess it fairly clearly is a constitutional issue. And we often don't think of it as a constitutional issue, but it had lots of constitutional implications at least.
Richard Bellamy 22:07
I think that's right. So I think clearly it meant that on certain issues, the UK was negotiating with the European partners about how they should be regulated, rather than simply making rules independently. Although, of course, that might be less of a contrast than Leavers made out in the sense that, as we can see, we have to come to international agreements with a whole host of people, regardless.
But still the acceptance of European law, all of this changed to some degree aspects of the British Constitution. It gave it a more... I mean, I would say, ironically, it gave it a more explicit external dimension, which actually empowered people more rather than less. But you know,that disagreement is nonetheless to say it's a constitutional disagreement as to the implications of what membership of the EU entailed.
Alan Renwick 23:12
Yeah. And then what are the other two conditions?
So on the one hand, with regard to the rules of the referendum, as you point out in the paper, the UK has a set of rules that govern referendums set out in legislation that was passed more than 20 years ago, and those were applied to the referendum. So in that sense the referendum was embedded in a in a process decided by the UK parliament.
On the other hand, in another recent book by our colleagues Meg Russell and Lisa James in their book on the parliamentary battle over Brexit, they point out that parliament didn't debate whether Brexit was a good idea before deciding to call this referendum. So parliament just decided that well, maybe it would be good to have this referendum. And, of course, some MPs wanted it in order to try to get Brexit, but most of them voted for it in order to deal with this issue and move on and the expectation that there would be a vote to stay in the EU. So there wasn't actually any serious consideration in parliament as to whether Brexit would be a good idea or not before the vote. And then subsequently, and you say that a referendum is more appropriate if parliament then comes in to decide what should happen with the decision, with the referendum result. But MPs basically regarded themselves as being bound by the referendum result. They treated it as though it had been a binding vote.
So do those factors undermine the case for this referendum and suggest that actually it wasn't sufficiently embedded in a longer deliberative process taking place within parliament?
Richard Bellamy 24:55
I mean although Brexit wasn't explicitly discussed, I suppose, in parliament. I mean, there had been the renegotiation by David Cameron. And in a certain sense, he as the head of the government was putting forward the status quo, as he had managed to establish it, as being something which he was recommending to the British people to support. And I think it's fair to say that there was a majority in parliament for that.
The difficulty, you know, perhaps why he didn't put that to a parliamentary vote, is that it would probably have required the support of opposition parties to get through because there was a substantial minority within his own party who would reject any EU view.
So I don't know. I'm not sure... I think most people knew that to be the case. I mean, I don't think that they required that steer to have that. And where I think that parliament failed to do its job, in a way, was in coming up with a coherent alternative, a coherent view of what leaving the EU would require.
So in a certain sense, I think, you know, there was a fair vote on a proposal from a majority in parliament, which was: are you happy with staying in the EU on the terms that we have? And a majority rejected that view, which means that you then had to put forward: well, what are the terms that you want to leave it on?
And there I think, I mean, I've been meaning to read Meg's book, which I'm sure is fascinating. But my unscholarly view, just reading newspaper accounts etc. at the time is that, yeah, that the opposition, and many of the government members of the party who would have wanted a less hard Brexit, basically failed to get their act together. They didn't focus on that goal; they focused on too many other things.
I suppose my view as put in the in the article is that nothing is failsafe. I mean, you can you suggest a certain process that you regard as legitimate. But if the actors involved make bad strategic decisions, then even the best of systems is going to fail to deliver a good result. And so I think, you know, that's what ultimately happened.
And, unfortunately, I think by the time Boris Johnson essentially held an election on the Brexit issue, many people – just as he put it, 'let's get Brexit done' – well many people just wanted an end, for what they thought would be an end to this. Little did they realise that it wasn't the end, it was just the beginning of a long haul.
But that's what happened. Again, these were failures as much on the Remain side of the debate as they were victories for the for the Leave debate.
Alan Renwick 28:31
One final question before we have to wrap up. I guess I wonder what the implications of your analysis are for the future of referendums in the UK. So there might be people who argue for a referendum on re-joining the EU at some point. Of course, there are debates about a potential Scottish independence referendum happening again. Does your analysis have implications about the legitimacy of votes such as those?
Richard Bellamy 28:58
Yes, I mean, I think I think people can certainly think about how could referendums be improved. And I know you, for example, have on the back of the Irish referendums also thought about, you know, could you, if you had citizens' assemblies informing it, that could be another aspect. And of course in Ireland these assemblies are, in a certain sense, then similarly legitimated by parliament in how they operate. So that would be a model which would be consistent with political constitutionalism for similar reasons to the way in which I think referendums themselves are legitimate. So I think these are things which might improve debate.
But I think they're probably with us now. I think referendums have become part of the constitutional fabric of the UK, as they have many other advanced democracies. I mean, ironically, it's something which the EU has actually spread through Europe, has been the use of referendums.
I think what people should do is perhaps think a little bit more, as I've tried to do in this paper, as to how they fit into our overall constitutional architecture, and also think when they are putting forward what they think are going to be improvements, they should say: well, are these improvements actually also consistent with our overall constitutional architecture and are they justified as ways of making the process better? And I think there is work that can be done. And parliament, you know, it would be good in a sense if in a lull between any new referendums coming in – so these things are perhaps best done calmly as it were – they consider this general issue.
Alan Renwick 30:58
Yeah, I think that's such an important point, that the time to write the rules is when the rules are not in play and you're not actually playing a game about that particular issue. So important.
Thank you, Richard. This has been a really great conversation. I've found it fascinating. And it's a great article as well.
So we have been looking at Professor Richard Bellamy's article 'Political Constitutionalism and Referendums: The Case of Brexit', published this year in the journal Social & Legal Studies. As ever, you'll find full details in the show notes for this episode. And that article will also be part of a book by Richard to be published by Oxford University Press in the not-too-distant future called Defending the Political Constitution. Richard also mentioned Albert Weale's book, The Will of the People, and we talked about another book by our colleagues Meg Russell and Lisa James called The Parliamentary Battle over Brexit, which was published by Oxford University Press in March. If you haven't had time to read the book yet then Meg and Lisa appeared on the podcast just a few weeks ago, so you can always listen to the podcast version.
Next week, we'll be switching things up a little. Emily McTernan will be interviewing me, rather alarmingly. And we'll be exploring the broad question of: how can we fix our democracy?
Remember, to make sure you don't miss out on that or other future episodes of UCL Uncovering Politics, all you need to do is subscribe – you can do so on Apple, Google Podcasts or whatever podcast provider you use. And while you're there, we'd love it if you could take a moment of time to rate or review us too.
I'm Alan Renwick. This episode was researched by Alice Hart and produced by Eleanor Kingwell-Banham. Our theme music is written and performed by John Mann.
This has been UCL Uncovering Politics. Thank you for listening.
Richard Bellamy 32:51
Thank you.
References:
Russell, M and James, L (2023): The Parliamentary Battle over Brexit, Oxford University Press
Sterne, L (1759): The Life and Opinions of Tristam Shandy, Gentleman
Weale, A (2018): The Will of the People: A Modern Myth, Cambridge, UK