A referendum on Europe would undermine our constitution (and yes, we do have a constitution)

by Sam Fowles

By now tens of thousands of words have been written about the Nick Clegg vs Nigel Farage debates but I think you can sum them up in just three: They were rubbish. While no one was expecting either man to be an Obama (or even a Romney) we deserved a higher standard than what was essentially a playground spat.  The sheer absence of analysis, reasoned argument or basic factual accuracy was just embarrassing.

Nowhere was this more true than on the question of a referendum. Most commentators agreed that this was where Farage really scored points arguing “you (meaning the amorphous political/business/academic elite – i.e. anyone who happens to disagree with Farage) don’t want a referendum because you’re afraid of the ‘wrong answer’”. They’re right, Clegg couldn’t answer it. But that’s probably because the answer involves engaging with big, complex ideas like constitutional law and democracy. (Incidentally Nigel shouting “all the foreigners are making decisions for us” and Nick shouting back “they’ll take more if we leave the EU” doesn’t count as an adult debate about democracy).

Contrary to popular belief, we do have a constitution in the UK. It’s even written down (mostly). It’s just not all written down in one place. In the first instance the referendum debate isn’t about giving people a say it’s about being true to the constitution. Helpfully, if we are true to our constitution then, in the bigger picture, individuals will have much more of a say than they otherwise would. our constitution isn’t perfect but it has achieved a rare quality in constitutional law: It’s being mostly right most of the time.

Our constitution vests power in Parliament as the embodiment of the expressed will of the people. Which means Parliament decides. We don’t have government by referendum.

Part of the reason for this is practical and part of it is ideological. The pragmatic arguments shouldn’t be underestimated. When the average lifespan of a consolidated written constitution is around 17 years, it’s often the ability to effectively facilitate the day to day running of a state that defines whether a constitution stands or falls.

Switzerland can have government by referendum because it has 8 million people. That makes it smaller than London. If the UK were to attempt to govern by referendum we would have to facilitate regular polls of 64 million. This is hard. National elections in the UK require schools to close, business to be disrupted, massive political organisation and hundreds of thousands of paid employees and volunteers to make sure that your cross in a box actually gets counted.

“But wait!” I hear you say, “we only want a referendum on this one question.” But that would be profoundly undemocratic. Fewer than 20% of people rank Europe as their most pressing concern according to YouGov. IPSOS Mori doesn’t even register Europe in the top 10. How democratic is it to have a referendum on an issue which so few of us really care about?

Surely if we are going to start having referendums in Britain we should begin with the issues which matter most to most people (that’s the economy by the way). To put Europe to the top of the priority list because a party which supported by fewer than 17% of the electorate and with no seats in the House of Commons demands it is anti democratic. It’s demagoguery and Nigel Farage does not deserve to be a demagogue.

“We actually have to make this thing work” isn’t quite such sexy rhetoric as Farage’s call to “join the people’s army” (although when you’re a private school educated banker misquoting Mao isn’t inspiring; it’s embarrassing). But it does face up to the reality of the situation. It also ensures a more democratic country.

That’s not to say that Britain doesn’t face a democratic deficit. We do. But party funding, media monopolies, the Coalition’s progressive stripping of powers from local government, dysfunctional markets, lack of access to justice, free expression and judicial review are all issues which would make a much greater difference than referenda.

If Nigel Farage really cared about democracy he’d be asking why his own party has pretensions of national impact yet relies on funding from a handful of plutocrats. The tricky thing about questions of democracy Nigel, is that they must be asked equally of all of us.

Sam Fowles is a researcher in International Law and Politics at Queen Mary, University of London and blogs at the Huffington Post 

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16 Responses to “A referendum on Europe would undermine our constitution (and yes, we do have a constitution)”

  1. Outraged says:

    What utter tripe.

    Para 7 – referenda are ‘undemocratic’. B*ll*cks
    Para 8 – ‘anti’ democratic. Literally against democracy. Really? Do you really mean this?

    It really is impressive given the host of issues associated with Europe and the TV debate, that you managed to miss quite so many of them.

    And, no, I’m not a Tory, Lib Dem or UKIPer. All the more surprising you can alienate me quite so much.

    Overall in your piece, Mr Fowl(e)s, ‘The sheer absence of analysis, reasoned argument or basic factual accuracy was just embarrassing.’

  2. Anna says:

    A blog claiming to know what is undemocratic, anti-democratic and what it means to be a demagogue, but does not give an indication of what ‘democracy’ is.

    In fact, the author confuses democracy with the values or expectations we have from a democracy. At its most basic, democracy is about free and fair elections. A ‘thicker’ idea of democracy floating around is that which borders on being constitutionalism rather than democracy; namely, democracy with human rights. Whilst I accept that democracy is contested, democracy is not and cannot be used to label discuss the content of our TV guides.

    Democracy is that ‘grab bag’ word that people use when they do or don’t like something. If we start saything that debates on TV are anti-democracy just because there are other things that could be on TV, we overlook the actual democratic deficits (which to be fair to Fowles, he does cover some of these).

    Referenda are not anti-democratic simply because there are a plethora of issues we would like to have a referendum on. We can’t call something ‘anti-democratic’ or even undemocratic when we don’t like the outcome.

  3. William Kafka says:

    I can not agree with your conclusion that a referendum on Europa undermines our constitution.
    As you rightly say, powers of Government rest with our Parliament – so if Parliament decides on a referendum, where is the conflict with our constitution? It is irrelevant who is ‘demanding’ or asking for a referendum, if Parliament votes for it, there is no conflict.

  4. Ex Labour says:

    What is “embarrassing” about this (as you seem to like the word) is the fact that this EU socialist project is under fire and those socialists who are supposed to be in favour of democracy, dont actually want democracy at all. Why dont you want to give the public a vote bearing in mind that many have never had the opportunity to vote on this issue ? What is wrong, if you believe in democracy, in having a referendum to let the public decide. Oh hang on…that means the proles might vote the wrong way and junk this socialist project. After all those poor souls wouldn’t really understand right ? You are so patronising, just like the political elite in Europe.

    You imply governments are elected to take decisions so referendums are not required. An election every 4 or 5 years is a referendum on the government itself is it not ?

    I have no time for Farage or Clegg, but what cannot be denied is that the public did not vote for a United States of Europe and it certainly did not vote for the undemocratic EU institutions, non-elected pen pushers, dubious quangos and an organisation riddled with fraud who wont issue full accounts each year.

    If thats the lefts version of democracy, then no wonder there are millions who shun it and want to do something about it.

  5. Tafia says:

    Since when has allowing people to vote freely been undemocratic.

  6. Robert says:

    I agree William. As it happens, I do not think that a referendum on the EU is necessary but if Parliament decides to have a referendum that would clearly be democratic.

  7. John Jones says:


    Labour’s experiments with devolution in the late 1990s drove a coach and horses through pre-existing constitutional understandings in the UK but no-one on the Left batted an eyelid because they found the changes broadly attractive. Nor did they argue against the creation of the Supreme Court, in itself a very major innovation, on constitutional grounds.

    And that generally relaxed attitude to the constitution was correct. The fact is that constitutions evolve, Britain’s, the product of centuries of development and a steady stream of reforms rather than of a single near-deified act of creation, more than most. This will continue in future.

    For a left-winger now to cite a supposedly unchanging and unchangeable constitution as an impediment to a political innovation they personally find unappetising is humbug of the first order.

  8. John Reid says:

    Well reading this,trying desperately to find any actual, comment relating to the headline was 30 seconds. Is won’t get back,

  9. steve says:

    “They [the Farage-Clegg debates] were rubbish.”

    You only write that because the representative of the LibLabCon didn’t win the debates.

    The EU now has a Battlegroup (a military unit adhering to the EU’s Common Security and Defence Policy) and an unelected Foreign Policy Chief (Baroness Ashton).

    We’re heading towards an expansionist superstate with it’s own integrated military and an ineffective democratic process. We must demand the right to call a halt to the growth of this monster before it’s too late.

  10. Sam says:

    Thanks for all the comments. As ever some interesting additions to the debate. I thought John Jones and William Kafka (who was also kind enough to contact me on Twitter) made particularly astute points so I’m going to address them first.

    They both essentially posited the argument that Parliamentary Sovereignty means that whatever Parliament does is constitutional. In doing so they’ve addressed one of the central debates in constitutional law so I’m delighted to engage with that.

    Dicey (generally regarded as the father of the “Parliamentary Sovereignty” school) based his arguments on three limbs. Parliamentary Sovereignty meant that Parliament could make or unmake any law, no one could interfere with the Parliamentary process and that the current Parliament could no be bound by previous parliaments. Prima facie this seems to support John and William’s position. However, this position (while an accurate description of the situation when Dicey was writing at the turn of the last century) has since been challenged. This probably isn’t the place to go into detail on constitutional jurisprudence (although Turpin and Tomkins’ “British Government and Constitution” is a useful textbook for those interested) so here’s the short version. In R (Jackson) v Secretary of State for the Home Department the House of Lords suggested that if Parliament were to enact legislation that was so extreme as to undermine democracy then the courts might not uphold that legislation. There is some support for this in other dicta but the most important theme is that, in recent constitutional rulings judges haven’t just said “parliament is sovereign therefore we must do what parliament says” they have held that parliament is sovereign because it embodies the expressed collective will of the people. This is important because it suggests that if parliament ceased to embody the expressed collective will (for example, by legislating based on the whim of a party which has failed to win any seats in said parliament) then that act may not be made by a sovereign parliament.

    That’s the legal argument but there is a simpler way of looking at things. The British constitution is often described as a “political” constitution. This means that, where other states may draw constitutional lines to be enforced by judges, our most important check is political pressure. This means that everyone has a role to play in the constitution. So it’s not a case of “if parliament passes this legislation then it is constitutional” but “we believe this legislation is unconstitutional, let’s tell parliament that so they won’t pass it”. Our constitution demands active and continuous debate. It also rests on the logic of irony. The fundamental thing that makes it acceptable for parliament to be the final arbiter of what is and isn’t constitutional is that, in theory, political pressure and public debate will restrict it from doing anything that is unconstitutional.

    This is anathema to some and wonderful to others. I suppose I sit somewhere in the middle.

    To recap: Parliamentary sovereignty is only absolute, if it is absolute at all, because parliament is constrained by it’s political role as the embodiment of the will of the people and thus political debate. But even this may be challenged by an increasingly legalistic school of jurisprudence.

    Keep that in mind because it’s going to be important in a couple of hundred words or so.

    What about “democracy”. I don’t think I’m using this as a “grab bag” and I’ll explain why below. For now let’s define it (although I would suggest it was defined implicitly above). Democracy is, in it’s Enlightenment sense, “government of the people, for the people, by the people”. But in order to make this a reality you need more than just that sentiment. Therefore Human Rights, judicial review, freedom of information, public debate, elections (to name but a few) are all essential elements in realising democracy. You can’t define democracy without taking into account all of the things that are necessary to ensure the genuine voice of the people is heard.

    So how does this relate to the EU referendum? Tafia summed up the key question in asking “since when has allowing people to vote freely been undemocratic?”.

    Well because what we get a say on is as important to democracy as whether we get a say at all. Let me illustrate this: Two cars are driving along a road. Each has four passengers and a driver. In the first there is a debate about the nature of the road trip. The first occupant wants to go to London on the M40, stop four times for snacks and fuel, listen to Oasis and put the roof down. The second occupant wants to go to Birmingham, also via the M40 but she only wants to stop twice, listen to Blur and have the roof up. So the occupants of the car jointly decide that the second occupant should drive because they collectively prefer Birmingham, Blur, being warm and not hanging around in service stations too much. The catch is they have to pick a package of things. It’s important to all of them that they go to Birmingham and, even if they would have preferred the roof down, this doesn’t matter so much in comparison with the destination.

    In the second car one person is driving. He tells the passengers that they will all have a choice on each individual component of the journey then sets off. After 30 minutes he calls for a vote on whether the roof should be up or down. Everyone gets to vote on this issue. An hour later, as they cross the Hammersmith bridge, it becomes clear that they have gone to London when in fact the majority of the occupants wanted to go to Manchester. Although they had made a democratic decision it wasn’t on the issue which they believed to be most important. The first car didn’t offer a vote on any issue individually but, as a whole, the occupants had a much greater democratic voice.

    Democracy isn’t just about voting. It’s about what you vote on. My argument was never that referenda are undemocratic it is that a referendum on the EU would be. This is because the EU is the equivalent to the car roof: It’s not the most important issue to most people. Only a small minority of people think that the EU is more important than the economy, education or immigration generally (as evidenced by UKIP’s lack of MPs). If we were to have a referendum on the EU and not those other issues it would be because that small minority of people had more control over what we have a say in than the majority. This would be undemocratic because it would, in effect, be a minority prevailing over the majority.

    Choosing which issues will be put forward in a referenda is itself a political act. As such it should be subject to democratic control. It is my argument that, until more people think the EU is the most important issue facing this country than think any other issue is such, it will be undemocratic and therefore unconstitutional to have a referendum.

    Hopefully this should alienate Labour, Conservative, Lib Dem and UKIP voters equally. I try to be democratic about these things you see…

  11. Tafia says:

    Sam, that avoids a simple truth – that the tories intend to make the referendum a benchmark manifesto pledge whereas Labour do not. Therefore if the tories win the next election, the UK public have opted to have a referendum on Europe.

    In the 2015 General Election any Labour voters that want a referendum (and an awful lot of left wingers do) can vote tory. Likewise any tory voters that do not want a referendum can vote Labour.

    It’s actually the outcome of the 2015 General Election that will determine whether there will be a 2017 referendum

  12. Mike Stallard says:

    I bet those comments hurt you!

    The problem is this: why obey the state?

    “Because we all agree to do so” is the traditional answer: the social contract.

    The trouble is that lots and lots of people think we are now living in a State which we did not agree to join, which we have no real say in and which holds completely different ideals and uses completely different methods to the ones which we have come to expect over the centuries.

    That is why we ought to be asked if we want to support our membership of the new Europe which MM. Barroso, Schultz, Verhofstadt and Mme Reding quite openly propose.

    You haver not answered this question have you.

  13. John reid says:

    So if a referndum would undermine general elections, then when the public, wrongly voted too stay in the EEC, in 1983 it was right for labour to stand on a manifesto to lea ein 1983′ despite most of the parliamentary Labour Party campaigning to stay in, in 1975

  14. Evan Price says:

    I’m sorry, but the arguments about referenda have moved on since 1975 – these arguments might have had some force then and, indeed, similar arguments were put forward then, although they were overruled in Parliament at the time.

    The reality is that holding referenda on specific issues is now both a settled part of our constitutional settlement and a lawful part of it. The referenda that we have held include – continued membership of the EEC, devolution for Wales and Scotland, changes to the operation of local Government, changes to the electoral system, independence for Scotland – forgive me if I forget one. In our constitutional settlement, referenda have become increasingly common. They are lawful, a settled part of our developing constitutional settlement and to pretend otherwise is absurd.

    As to ‘democratic’ – the truth is that we don’t discount votes simply because the number of people participating in them is low – or on the basis of a ‘independent’ poll (an estimate, based on data gathererd by some organisation or other and then number-crunched to eliminate bias created by the method used in gathering the data). There may be good arguments to be had about minimum participation – but these have been refused so far by our politicians and unless legislation is past to change it, a vote taken on a particular issue is lawful – and, in my view, democratic.

    This article is party policicking at its worst. It is also, I believe, consitutionally illiterate.

  15. Ex Labour says:

    The idea that you cannot have a referendum on the EU because it either not the most important issue or that it is only one issue amongst many others is not really valid. If it was unconstitutional or some kind of extreme political stance then why do the government intend to do it and why is Labour not challenging it legally? Also if you use your logic does it make the original referendum null and void ? The logical conclusion is that if referenda are not democratic or constitutional then our current membership of the EU is illegal and we are free to exit anytime we wish.

  16. uglyfatbloke says:

    Sam – how nice to see a write respond to comments – and to do so in a courteous and well-informed manner is rare indeed.
    The ‘absolute sovereignty’ of parliament is, as you say, a pretty dated assumption, but it is also incorrect when applied to the UK, though that does n’t stop journalists and politicians talking as though it were valid. It applies only to England and Wales (and possibly Northern Ireland – I don’t know enough about that to have an opinion) but is absolutely not the case in Scotland. The last attempt – of many – to have absolute sovereignty of parliament introduces to (or imposed on) Scottish constitutional law was in the 1950s.

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