A People's Veto: why a second Brexit referendum would make more sense than the first one

If we have learned anything from British politics since 2016, it is the destructive power of the referendum. Unshackled from traditional loyalties or the constraints of party politics, referendums can shatter governments, dissolve political allegiances and destroy the careers of successful politicians. They can undermine the legitimacy of Parliament, setting “the will of the people” against their elected representatives.

Since 2016, MPs have been denounced by tabloid editors, the European Research Group and even the Prime Minister for frustrating this “will,” treated not as representatives of the public but as “traitors,” “elites” and “saboteurs.”

That poses a challenge to anyone who prefers parliamentary to plebiscitary democracy: if the referendum has been so destructive, why would we want to repeat the exercise with a “People’s Vote”?

The short answer is that referendums are not intrinsically bad for representative government. On the contrary. Referendums can uphold parliamentary democracy or subvert it, depending on how they are used. Properly handled, this week’s indicative votes could begin the process of bringing our direct democracy and our representative democracy back into partnership.

The referendum entered the bloodstream of British politics in the years before 1914, in a context not so very different from the present. These were years of tremendous political volatility: new parties were challenging the traditional political order while Parliament was grappling with issues—like “votes for women,” “tariff reform” and “Home Rule for Ireland”—that did not fit easily within established party lines.

The most influential proponent of the referendum was the Edwardian constitutionalist A.V. Dicey. On matters of fundamental constitutional principle, Dicey argued, the referendum could take over the veto power formally vested in the monarch. Parliament would legislate in the normal way, but the law would not become operative until the electorate had given their approval.

This, he argued, would be a “People’s Veto”: a check on a temporary majority in Parliament, that would come at the end of the legislative process.

In this model, parliamentary and plebiscitary democracy would play different, but complementary roles.

Parliament would draw up, approve and take responsibility for specific legislative proposals, in the usual manner. Yet the public could then block changes that did not enjoy majority support.

This is very close to the model of the recent abortion referendum in Ireland. After a consultative process outside parliament, involving an imaginative scheme of citizens’ assemblies, the Oireachtas agreed on the precise wording of a Constitutional amendment, establishing the power to regulate the termination of pregnancy. So voters could be sure precisely how the Constitution would change in the event of a Yes vote.

Alongside that, draft proposals were published on the scope of a future abortion act, so that electors could see—at least to some extent—what use would be made of that power in practice.

The 2016 Brexit referendum differed in three key respects: it put the referendum at the start of the process, rather than the end; it asked voters to endorse an abstract question of principle ("Leave" or "Remain"); and it offered no prospectus for what a “Leave” vote might look like.

Voters were not asked to endorse any of the options currently being debated in Parliament: whether May's deal, No deal, EFTA or “Canada+.” Yet ministers and the tabloid press have repeatedly invoked “the will of the people” to intimidate MPs into backing versions of Brexit that were never on the ballot.

So how do we fix this? The solution is not, I think, simply to repeat the exercise conducted in 2016, while hoping for a different outcome. Instead, we should revert to the Diceyan model of a “People's Veto.”

It should be for Parliament to determine the specific form of Brexit, without being intimidated by clairvoyants pretending to know “what 17 million people voted for.” Their conclusions should then be submitted to “a People's Veto,” to confirm whether they have popular consent.

Doing this would uphold the essential principle of representative government: that “the will of the people” (understood as a cacophony of dissonant voices, not as a single instruction) is expressed through dialogue between elected representatives, not by demagogues claiming a mystical connection with “the people.” But it gives the electorate the right to check whether MPs have performed this task satisfactorily: a right we take for granted in the usual cycle of parliamentary elections.

A democracy cannot simply wish away the votes of more than 17 million people to Leave; but democracy did not end in June 2016. Democracy is not a tap, to be turned on and off at the convenience of the tabloid press, and the doctrine that “the people have spoken” does not disbar them from ever speaking again unless with the permission of the European Research Group.

For the sake of both direct democracy and representative democracy, it is time for MPs to “take back control.”

Now read Jade Azim on why appeals to "the people" are bad for democracy