Parliament and Brexit
Professor Tony Lang, Head of the School of International Relations, comments in The Times on Thursday 14 March 2019.
Last night, Parliament voted against a no deal Brexit. On Wednesday of last week, Labour Leader Jeremy Corbyn stated that his party would support a second referendum on the UK’s membership in the EU if the Prime Minister was unable to pass her Brexit plan. Considered together, this means that a People’s Vote is coming closer to reality. But is it a good idea?
Remainers, for obvious reasons, support a second referendum. They see the 2016 vote as unconstitutional, based on false information, or the result of foreign influence. The latter two points may be true, but the first is not. Constitutionality does not require adherence to a legal provision or pre-existing rules. A referendum may not be legally binding, but it can be both politically and morally necessary to ensure legitimacy. As Professor Stephen Tierney of Edinburgh Law School has argued, referenda allow countries to address the most important and difficult constitutional questions.
So should a second referendum be held? Do we face the kind of important constitutional crisis which demands a referendum?
No. To hold another referendum now strips the original referendum, and indeed future ones, of their constitutional importance. By demanding another referendum, supporters cheapen a critical political device, rendering it an act of mere populism rather than the significant constitutional act it has been in British legal history.
Supporters of the People’s Vote present themselves as standing against uninformed populism. They claim that a second vote would counter the mistaken nationalist decision to leave the EU, a decision conflated with the election of Donald Trump, the rise of right wing populist movements in Europe, and the collapse of global liberalism.
In fact, the decision to hold a second referendum so soon after the first would undermine liberal democracy more than the nationalist populism worrying so many. A second referendum allows parliament to shirk its primary responsibility: to undertake the difficult compromises necessary to withdraw the United Kingdom from the European Union.
Jeremy Waldron, a Professor at the New York University Law School, gave a series of lectures in the 1990s which were eventually published under the title, The Dignity of Legislation. In the lectures and book, Waldron argued that though legislative bodies present to the public the ugliest sides of politics, they deserve our respect and support. Defenders of the rule of law and human rights often turn to judiciaries as the last bastion of hope for liberalism. It is in robust legislative bodies, where representatives must simultaneously reflect the interests of their constituents and advance the overall good of society, where liberalism makes its last stand.
Referenda allow legislators to avoid the strong and slow boring of hard boards, as Max Weber described politics. They alleviate MPs of the burden of making difficult decisions. Instead, they foist complex public policies onto an uninformed public and then sit back and let them complain about each other and, too often, their own constituents.
A referendum now would also reinforce the ideological divisions facing this country. There is very little discussion of what would be asked in a second referendum, but it would undoubtedly be presented as a yes/no question. Simple binaries do not encourage compromise, negotiation or good public policy. They harden pre-existing positions.
This is not just a problem in the UK. Global trends are undermining legislative bodies as sites of liberal politics. Throughout the world, executive power is growing. Challenges to that power come either through regional or international institutions or from judicial bodies willing to defend rights. These checks on strong executives remain critical to the success of liberal democracy, but so do vigorous parliamentary debate and the compromise necessary to create legitimate and effective laws.
As just one example, with the election of a Democratic majority in the House of Representatives, the US Congress has breathed some fresh air into the constitutional politics of the United States. The ability of Democrats to work with moderate Republicans in that chamber to counter the power of a power hungry executive remains to be seen. But without a strong Congress, American politics will soon crumble into ideological bear baiting and incoherent policy making.
Parliament must figure out a way to leave the EU, not the British public. The emergence of centrists in both parties with the creation of a new independent parliamentary group could either help or hinder this process. Rather than creating a new party, however, these centrist voices need to work together to create a deal with the EU. It is not simply the economic welfare and rights of British citizens that rely on them; it is the future of liberal democracy which demands that they do.
Originally published in The Times on Thursday 14 March 2019.