Brexit Vote Showed How a Referendum Can Reflect a Nation’s True Feelings

Oct 6, 2016

Referendums are not generally a good idea. The electorate is not well placed to rule directly. In general, self-government should be by way of representative institutions.

Still, there are times when it is reasonable for the legislature to put some question to the voters themselves for decision by way of a referendum, especially in relation to constitutional change. The constitutional referendum is a legitimate technique of representative democracy.

Referendums are appropriate if a decision is irreversible and if legislators do not fully represent the full range and depth of views.

The case for lawmakers to authorize a referendum is strongest when the decision to be made is practically irreversible, where there is a standing possibility that many people’s views may not be adequately represented in the ordinary legislative process, and where political accountability after the fact is insufficient to secure trust in the legislative decision.

All this holds with particular force for questions about the constitutional identity of the state itself – say about Scotland leaving the United Kingdom or New Zealand joining Australia, etc. – where any change requires popular support, is impossible to reverse, and is a self-constitutive choice.

These considerations help explain why it was entirely proper for Parliament to put the question of whether the United Kingdom should leave the European Union to the British people for decision.

The question turned on the future of the United Kingdom as a political community and on the character of the European project. The central question was thus one of constitutional identity, which is exactly the type of question that it is reasonable to entrust to the people themselves.

If David Cameron had truly believed that Brexit would cause global war then perhaps he acted irresponsibly in supporting the referendum. But note that the decision was not his to make alone. It was a manifesto commitment of the Conservative Party, itself a reasonable compromise among members of the party on the vexed question of Europe.

Large majorities in both Houses of Parliament adopted legislation to authorize the referendum, taking the view that, as in the 1975 referendum on membership of the European Economic Community, it was right that the U.K. should only remain a member of the E.U. if the British people continued to consent.

Britain’s political authorities did not adequately reflect the disagreement in the nation about the merits of E.U. membership. Whatever one thinks of Brexit, they were right to, in the end, put the question to the nation by way of the referendum and they should now honor the decision made.

This article orignally appeared on the New York Times website.

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Professor Richard Ekins

Richard Ekins
Head of the Judicial Power Project Read Full Bio

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