The claim that referendums are an imported species in the British constitution has been often repeated over the past three years, but too little interrogated.

As a result, it has become all too easy to hold, without having to engage in any strenuous argument, that referendums are incompatible with our representative democracy, and that the result of a referendum in no way fetters the discretion of MPs to decide the matter according to their conscience. This is, I suggest, wrong in principle and harmful in its outcome.

Referendums, though relatively new within the geological timescale of the British constitution, have been a feature of UK political decision-making for almost forty-five years.

Scepticism about their authority seems only to have gained steam after the recent referendum was fought and lost. David Cameron’s recently published memoir is a timely reminder that, during the campaign, the government of the day certainly did not dismiss the referendum as merely advisory. Indeed, had Remainers really thought that the vote was merely an advisory opinion poll, and not a constitutionally recognised form of decision-making, then what were they so anxious about in the run-up to voting day?

While this discrepancy arises, I suggest, from simple opportunism – for hardline Remainers the vote was binding while they stood a chance of winning, and advisory once they lost – much more interesting is what motivated the earlier shared belief, of both Leavers and Remainers, that the referendum was worth winning because it would be decisive. Were we acting according to some shared constitutional principle that recognises referendums as a form of authoritative decision-making? If so, what is that principle and can it withstand the seemingly conflicting principle of parliamentary sovereignty?

Burke’s challenge

While there has been relatively little defence of referendums as a settled feature of the British constitution, the counter-argument has been made often and forcefully. If the Continuity Remain position is essentially opportunistic, it has nevertheless been dignified, and to a degree masked, by some very respectable constitutional arguments. Key amongst them is the notion of Burkean discretion.

Edmund Burke’s speech to the electors of Bristol, delivered in 1774 when he was running for election as the city’s MP, is a powerful statement of the obligation of MPs to follow their own reasoned judgment rather than simply obey the will of their electors:

It is [the MP’s] duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiassed opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.…

[A]uthoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience – these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution.

Former appeal judge Sir John Laws, justly described by Jonathan Sumption as ‘one of the most thoughtful constitutional lawyers to have sat on the English bench in recent times’, has made the principled Burkean case against the idea that the 2016 referendum should bind MPs’ free discretion. In his lecture at the University of Cambridge on ‘Brexit and the Constitution’, Sir John noted the potential constitutional danger of referendums:

It is I think clear that the European Union (Notification of Withdrawal) Act 2017 obtained Royal Assent on 16 March with the support of many Members of both Houses of Parliament whose personal judgment was opposed to Brexit. Our Parliamentarians have given effect to what they evidently regard as an imperative mandate from the people, expressed in the referendum result. Those who voted against their better judgment as regards the merits of Brexit were, I think, caught between two democratic poles. …

The roller-coaster of the referendum may have made this inevitable; and it may, in the service of public tranquillity and perhaps the long term interests of the UK, have been the right thing to do. But for MPs to treat a referendum as a mandate represents a new kind of constitutional morality. For my part I hope it will not take root. We are not a direct democracy like that of ancient Athens. If Edmund Burke’s conception of the duty of an elected representative is undermined, our politics will, at the least, become increasingly confused and perhaps unprincipled.

Let us assume, if only out of courtesy, that all those who question the authority of the referendum do so on grounds as principled and thoughtful as those of Sir John Laws. Even assuming so, it strikes me still that theirs is the weaker argument. The principled argument for referendums is considerably weightier than a pragmatic desire for ‘public tranquillity’.

Referendums pre-2016

The objection to referendums founders first on our widespread acceptance of them as a conventional form of decision-making over five decades.

The response of Tony Benn to the Leave defeat in the first EU referendum in 1975 was a welcome and uncontroversial affirmation of democratic principle:

When the British people speak everyone, including members of Parliament, should tremble before their decision and that’s certainly the spirit with which I accept the result of the referendum.

It takes some effort to read Benn’s words as radical subversion of parliamentary sovereignty, rather than acceptance of the minimal popular sovereignty that is necessary in any democracy.

With respect to the 2014 referendum on Scotland’s place in the union, hardly anyone seems to have questioned, then or now, the constitutionality of a referendum to decide the matter, during the course of a wide-ranging and hotly contested debate.

Nor is it easy to argue plausibly that the decision of the Northern Irish people to support the Good Friday Agreement – a plebiscite Remainers are strangely comfortable with – was constitutionally questionable, or of dubious validity, by virtue of being made by popular vote.

Our comfort with these past referendums suggests that we have, by incremental adaptation, arrived at some implicit reconciliation between the direct democracy of referendums and our long-standing constitutional principles.

The most recent referendum has, of course, considerably disturbed our shared sense of how we make, and ought to make, decisions. This is because of a clash of mandates, catching us, as Sir John Laws puts it, ‘between two democratic poles’. How are we to proceed when our elected representative, appointed to exercise their free discretion, disagree with those who appoint them?

This is a genuine crux. However it can be resolved through the usual means – that is, by recourse to underlying principles to see whether, with fresh interpretation or incremental adaptation, they can govern the new scenario.

Burke’s limitations

Burkean discretion is subject to an obvious limitation. Once chosen by voters as their representative, an MP can indeed act solely according to his or her conscience. However it is for voters alone to choose that MP. Burkean discretion does not extend so far as to grant an MP the power to decide, on voters’ behalf but according to her personal conscience, which lawmakers would best serve voters’ interests. The Recall of MPs Act 2015, passed as a result of the MP expenses scandal, affirmed that when an MP proves unworthy of representing his or her constituents, the power to remove them must pass to voters, not fellow MPs.

The people alone may choose their supreme lawmakers through voting for them at the ballot box. That much would, one hopes, be universally accepted as the minimum level of popular sovereignty necessary for any democratic system of governance. Good Burkean legislators in a democratic society cannot have discretion to reject this principle, or else that society would no longer be democratic.

If Burkean discretion were not so curtailed, the potential consequences would be absurd. Any government with a majority of 50% plus one or more could legitimately give itself a 100% majority without a further election – what MP does not, in his true conscience, think that every voter would be better off represented by his own party rather than all the others? We would be in the absurd position of accepting one-party rule, and the vanquishing of adversarial deliberation, as natural corollaries of a democratic constitution.

Burkeans who wish to revoke the 2016 referendum are caught on a snag: unless they are to embrace despotism (‘Bollocks to Democracy’, if you will), they have little option but to concede the minimal condition of a democratic system – that the people alone may choose their supreme lawmakers by voting for them. Once they concede that much, however, they are committed inexorably to the awkward corollaries that follow.

Three troublesome corollaries

If the legitimate power to choose supreme lawmakers is reserved to voters’ alone, so as to restrict MPs’ free discretion on that question (and no other), then it must follow that, without voters’ consent, MPs also may not legitimately change the electorate who appoints them, for instance through repeal of acts of union. The electorate would have negligible power, if Parliament could choose the electorate to whom it was accountable. It may be consistent with domestic law, but it would not be consistent with the UK’s political constitution.

Nor could there be any legitimate ground, other than voters’ consent, for radical change to the voting mechanism by which MPs are elected – for instance, by awarding weighted votes to favoured citizens or abolishing the secret ballot. Legislators’ subordination to the choice of voters would be meaningless if legislators had free discretion to determine how they are chosen.

Most importantly for our purposes, MPs may not legitimately delegate their legislative powers to other law-makers without voters’ consent.

Any one of these legislative acts would, if taken without consent, render nugatory the key limitation that the constitution imposes on legislators in order to preserve its democratic character. It is notable too that almost all major (i.e. non-local) referendums in the UK have concerned changes to the union (Scotland in 2014), transfers of legislative competence (the EU and devolution referendums), and changes to the electoral system (the Alternative Vote referendum in 2011).

In 1975, UK voters consented to a delegation of law-making power from Westminster to the considerably more remote institutions of the EEC. In 2016, they withdrew that consent. My constitutional power as a voter – to delegate someone to make law on my behalf and then later hold that representative to account – is nugatory if a majority of MPs can pass on their powers to other law-makers to whose power I do not consent, and who are not accountable to me.

Administrative lawyers (no populists they) have developed the principle that duties of accountability can only be preserved by preventing a delegated power from being further delegated beyond the scrutiny of the delegate’s masters (potestas delegata non delegari potest). It seems to me incontestable that Parliament’s accountability to voters can only be preserved if an analogous constitutional rule limits delegation of its law-making power. Voters’ consent, rather than legislators’ discretion, must be the criterion of legitimacy for certain fundamental changes – including, at least, changes to the electorate, changes to the voting system, and choice of law-makers.

Referendums will sometimes be inappropriate – the necessary consent might be secured some other way (unanimity among the various party manifestos on the issue, for instance). We should say that a referendum would only be legitimate if all other parliamentary means of securing voter consent had been exhausted first. There must also be some sort of lower threshold – clearly not every change to electoral law need be approved by referendum, nor every treaty that delegates a degree of law-making power by means of, for instance, adjudicative mechanisms.

Moreover, if referendums can provide answers to certain tough constitutional questions, they are conversely unsuited to answering conscience-based ethical questions. The common rejoinder of referendum sceptics – if the public can decide on EU membership, why not on the death penalty also? – can therefore easily be rebuffed. That question can be decided by MPs’ judgment, as it does not touch upon any power that is reserved to voters’ consent alone.

If this holds true, then it seems very likely that this has been the principle by which the UK has reconciled referendums with its system of representative democracy. We can go one step further and argue that, even if this is not as a matter of historical fact the reason why the British people have embraced referendums, it should be accepted as the best argument for their fitness with our constitutional practice, and for their occasional necessity.

Most important, we can stand firm against the misgiving of Sir John Laws that referendums shunt us dangerously towards direct, rather than representative democracy. It follows from the argument above that referendums are not a radical expansion of direct popular sovereignty – rather, they simply qualify the processes of representative democracy in order to preserve (but not expand) the modicum of popular sovereignty on which its own legitimacy depends. As such, MPs cannot defy the referendum result without kicking the ladder from under themselves, and rejecting the legitimate basis of their own power.

Conclusion

While there may be legitimate discomfort at the passions and divisions that referendums arouse, they have become part of the British constitution. They maintain its fundamental principles in those instances where unfettered Burkean discretion would otherwise violate them.

Crucial to the current crisis is rebel MPs’ assertion that their discretion as MPs can override voters’ constitutionally legitimate withdrawal of their consent to a law-making body. Their claim to be defending the status quo against some perverse constitutional innovation is meritless. Referendums were until recently largely uncontroversial. The British constitution is an uncodified constitution that changes with usage – a constitution which is, in the words of J. A. G. Griffith, ‘no more and no less than what happens – [e]verything that happens is constitutional.’ Referendums have happened. The toothpaste is out of the tube. There is a good, uncontroversial basis for them in principle, and the revokers have advanced no compelling principled argument for rejecting them. Their apparent determination to keep the UK in the EU, even at the cost of wrecking the principle of government by consent, is unconstitutional and wrong.

Dr Bryn Harris is a member of Lawyers for Britain.

This article was first published on Briefings for Brexit (https://www.briefingsforbrexit.com), and is republished with permission. You may not use, copy, distribute, publish, syndicate, sub-license and transmit the whole or any part of such material in any manner and in any format and/or media without the permission of the original publishers.

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