Cameron winning the referendum would have been damaging for our democracy

Cameron winning the referendum would have been damaging for our democracy

Ever since the EU referendum, a certain strand of argument has held that there should never have been a referendum at all – that the issue of our EU membership was simply too important and too complicated to be delegated to the uninformed mass of voters, who might well even dare to make the ‘wrong decision’ when given the chance, as history has indeed borne out.

It is no surprise to hear European elites making this argument, many of whom hold deep-seated suspicions of democratic processes altogether. Referendums have long been treated by the EU as no more than exercises in democratic window-dressing – assuming they go the right way – to add a veneer of legitimacy to its profound restructurings of Europe’s overarching political and legal systems.

Conversely, when they go wrong, they are simply disregarded – the French and Dutch referendums on the EU Constitution, the (first) Irish referendum on the Lisbon Treaty, the Danish referendum on the Maastricht Treaty – the list goes on. All have been ultimately relegated to the status of historical footnotes beneath the relentless drive of the unelected European Commission towards realising its singular vision of Europe. Gaining the consent of the people who actually make up Europe has barely been a consideration, far less a priority.

Indeed, these repeated abuses of democratic processes have fuelled much of the opposition to the EU over the years, particularly in Britain. But when it comes to the question of whether the UK should have held a referendum on our EU membership at all, and how it relates to our own democratic traditions, there are a number of deeper constitutional and political issues to consider.

In its report published today, Lessons learned from the EU Referendum, the House of Commons’ Public and Constitutional Affairs Committee (PACAC), chaired by Bernard Jenkin MP, attempts to address this question, while also considering in depth many other aspects of the way the referendum was conducted and implemented.

The lack of a formally codified constitution of the UK means that there will always be debate on issues of this fundamental nature. The Burkean ‘trustee model’ of representation, for instance, whereby representatives are actively discouraged from allowing the opinions of their constituents to overrule their own judgement, is one which still carries significant weight amongst some serious constitutional thinkers, its opportunistic deployment by frenzied anti-Brexiteers like AC Grayling notwithstanding.

However, this 18th century notion of representative democracy, conceived when the franchise was limited to a tiny segment of the population and party politics did not exist in anything like its modern-day form, is clearly not compatible with the expectations of a 21st century society with complex political structures, where suffrage is universal and the public is becoming ever more politically engaged.

Its application in extremis has lead to absurd arguments that because a majority of MPs favoured Remain, Brexit should not be implemented at all, lest the voters disobey the will of their own representatives. If Grayling and others would reflect on this position a little more thoughtfully, they would surely recognise the immensely sinister road this leads towards.

The key issue to my mind is the question of legitimacy – does a political process have the general support of the public to be taking place at all, and will the outcome be “agreed to, even if not agreed with” by all sides, as Bernard Jenkin aptly puts it.

Political legitimacy is clearly a difficult thing to define, although it is no doubt enhanced by a number of interrelated factors including the transparency of government, the ability of the public at large to hold government to account through channels like the free press, as well as, first and foremost, respect for the ballot box itself – the public’s support for the very holding of a vote in the first place.

Hence, for a vote to have any real value in a democratic system, it must be seen as legitimate in the eyes of the public. Our domestic political system, for instance, is able to function with legitimacy because general elections are widely accepted by the public to grant the winning party a mandate to pursue its policy programme for the next half-decade or so, with the media and opposition holding them to account as they do so. As a result of some combination of historical accident with conscious reforms and refinement over the years, we have arrived at an electoral system which, for the most part, functions rather effectively.

By contrast, the EU’s deficiencies in this regard are all too obvious – the vast majority of voters in European Parliament elections have no idea who they’re voting for, what those people they elect actually do, nor how to hold any of them to account. It is no surprise that European Parliament elections are consistently blighted by very low turnouts – even if MEPs did have some level of genuine legislative power, the connection between elected and electorate that plays a vital role in legitimising governance is clearly missing.

With referendums, the lack of an extensive historical hinterland does make the issue less clear-cut although, since the 1970s, referendums have become increasingly common for deciding constitutional questions in the UK. The PACAC report comes to the conclusion that there is significant justification for holding referendums to resolve “questions of key constitutional importance” where there is a clear binary choice and “the consequences of either outcome are clear”, and when “issues cannot be resolved through the usual medium of party politics.”

But for an event as consequential, and indeed as divisive, as a referendum to be considered a truly legitimate democratic exercise, the result must surely be accepted as decisive for the foreseeable political future – decades at least, not months or years.

Again, this exposes a key failing of the EU’s relationship with democracy. By ignoring or forcing repeated referendums on countries which have already made their decisions, the EU has devalued the entire concept of referendums, and further harmed its own legitimacy to govern in the process. The Scottish Government would do well to take heed of this too.

Of course, the need for the referendum to be conducted in a fair and balanced way is as important as the justification for holding it in the first place. Here, the PACAC report is highly critical of the Cameron Government for its numerous attempts to skew the referendum in its favour.

From its attempts back in August 2015 to remove the ‘purdah’ restrictions, which apply in all general elections and prevent the Government from utilising the official machinery of the state to campaign in the final weeks of an election, to its flagrant use of £9.3m of taxpayers’ money to send a thinly-disguised propaganda leaflet to every household in the entry alongside extensive digital campaigning plastered across unrelated Government websites, Cameron’s Government plainly did not act in the spirit of a fair and balanced referendum.

The extensive use of the Civil Service for campaigning purposes, particularly the Treasury, was clearly seen to have damaged its reputation for impartiality in the eyes of the public, as well as the Treasury’s credibility as a reliable economic forecaster, while the report was also strongly critical of the Government’s failure to carry out any planning whatsoever for the possibility of a Leave vote.

Indeed, the report questions whether Cameron’s motives for holding a referendum were appropriate at all. It argues that Cameron simply intended to use the referendum as a “bluff-call” exercise, with the aim of using a negative result to “shut down the debate” over the EU, rather than having any desire to present a genuine choice to voters on the direction for the country to take.

The fact that Cameron went on to lose the referendum and immediately fall on his sword has meant that these issues have largely avoided the scrutiny they would otherwise have had. Had he actually succeeded in winning the referendum after pushing the limits of acceptable government behaviour so heavily, it is hard to see how this would not have dealt serious and lasting damage to the British public’s trust and confidence in our whole democratic system.

The PACAC report rightly recommends that electoral law be reviewed, consolidated and strengthened to ensure that the integrity of any future referendums is not put at risk by the current ambiguities over what the Government is permitted to do before, during, and after a campaign.

The EU referendum may well come to be seen as the defining moment in the revival of British democracy. But if it is to do so, it is vital that the lessons from it are not forgotten.