A Second Brexit Referendum Would Not Be Undemocratic
by Michael C. Dorf
Now that Parliament has resoundingly rejected the Brexit deal that PM May negotiated with the EU, a replacement deal seems highly unlikely. EU authorities could make some token concessions or give some nice-sounding reassurances, but the margin of defeat strongly indicates that nothing to which the EU could reasonably agree would come close to satisfying the coalition of (mostly Tory) Brexiteers and (mostly Labour) Remainers who voted no yesterday. Other than another vote on more or less the same deal with what most observers expect would be more or less the same outcome, that leaves two main options: (1) crash out of the EU without a deal, a chaotic process that would have very harmful economic consequences and potentially harmful political consequences at the Ireland/Northern Ireland border and/or elsewhere; or (2) remain in the EU after all. Here I want to explore option (2).
One way for the UK to remain in the EU would be for Parliament to simply ignore the result of the 2016 referendum. The UK was under no obligation to hold a Brexit referendum in the first place. When Parliament authorized such a referendum in 2015, it did not commit to abiding by the result. And even if the 2015 Act had so committed, the commitment could not bind a later Parliament, which could simply override it. Why is no one talking about this possibility? Presumably because everyone assumes that Parliament is either bound as an unofficial matter to follow through with Brexit, given the 2016 result, or because most people think that as a political matter, Parliament cannot unilaterally pull the plug on Brexit.
Accordingly, nearly all of the discussion of remaining after all assumes that there would be a second referendum. That brings me to a curious but surprisingly widespread argument one hears against a second referendum: that it would be undemocratic. Here I want to examine that argument. I'll conclude that despite some superficial appeal, it is unpersuasive.
Let's begin with the superficial appeal. Suppose that two friends decide to toss a coin to decide which one will receive some indivisible good that they share but that each one wants--let's say a concert ticket. Winifred calls "heads" and wins. Rather than immediately concede, Louise says "two out of three?" Or worse, Louise says that she really wants the ticket and demands a do-over, with the expectation that if she wins the second toss, she gets the ticket, even though the score will then be tied at one win each. Louise is acting unreasonably. She and Winifred agreed to a fair procedure, and she is now trying to undo the result of that procedure simply because she lost. Indeed, to the extent that we think of a random choice mechanism as democratic (the ancient Athenians did and, to this day, tie elections are sometimes resolved by coin toss), Louise is acting undemocratically.
Now that Parliament has resoundingly rejected the Brexit deal that PM May negotiated with the EU, a replacement deal seems highly unlikely. EU authorities could make some token concessions or give some nice-sounding reassurances, but the margin of defeat strongly indicates that nothing to which the EU could reasonably agree would come close to satisfying the coalition of (mostly Tory) Brexiteers and (mostly Labour) Remainers who voted no yesterday. Other than another vote on more or less the same deal with what most observers expect would be more or less the same outcome, that leaves two main options: (1) crash out of the EU without a deal, a chaotic process that would have very harmful economic consequences and potentially harmful political consequences at the Ireland/Northern Ireland border and/or elsewhere; or (2) remain in the EU after all. Here I want to explore option (2).
One way for the UK to remain in the EU would be for Parliament to simply ignore the result of the 2016 referendum. The UK was under no obligation to hold a Brexit referendum in the first place. When Parliament authorized such a referendum in 2015, it did not commit to abiding by the result. And even if the 2015 Act had so committed, the commitment could not bind a later Parliament, which could simply override it. Why is no one talking about this possibility? Presumably because everyone assumes that Parliament is either bound as an unofficial matter to follow through with Brexit, given the 2016 result, or because most people think that as a political matter, Parliament cannot unilaterally pull the plug on Brexit.
Accordingly, nearly all of the discussion of remaining after all assumes that there would be a second referendum. That brings me to a curious but surprisingly widespread argument one hears against a second referendum: that it would be undemocratic. Here I want to examine that argument. I'll conclude that despite some superficial appeal, it is unpersuasive.
Let's begin with the superficial appeal. Suppose that two friends decide to toss a coin to decide which one will receive some indivisible good that they share but that each one wants--let's say a concert ticket. Winifred calls "heads" and wins. Rather than immediately concede, Louise says "two out of three?" Or worse, Louise says that she really wants the ticket and demands a do-over, with the expectation that if she wins the second toss, she gets the ticket, even though the score will then be tied at one win each. Louise is acting unreasonably. She and Winifred agreed to a fair procedure, and she is now trying to undo the result of that procedure simply because she lost. Indeed, to the extent that we think of a random choice mechanism as democratic (the ancient Athenians did and, to this day, tie elections are sometimes resolved by coin toss), Louise is acting undemocratically.
But is Louise the sore loser really an appropriate comparison for those Labour MPs and other who want a second referendum? Let's consider some disanalogies.
Winifred and Louise agreed ex ante to be bound by the single toss of the coin. By contrast and as noted above, in the 2015 Act authorizing the Brexit vote, Parliament made no commitment to be bound by the vote. True, then-PM David Cameron spoke and acted as though he intended to be bound by the Brexit vote, but to state the obvious, Cameron lacked the power to bind a future Parliament or even the Parliament he led. So unlike Louise, MPs and others now seeking a second referendum would not be reneging on what was an official commitment.
To be sure, there is a fairly long tradition of Parliament treating referenda on major questions--especially those concerning the nature and representation of the polity--as effectively binding. And indeed, it would be more than a bit destabilizing for Parliament to treat every law that is nominally repealable by simple majority as lacking a strong presumption of continuity. As a formal matter, the UK has parliamentary supremacy. According to the standard formulation, the King or Queen in Parliament can make any law. Yet the UK (like England alone before it) has long had an "unwritten" constitution that accords certain fundamental acts of Parliament a de facto entrenched status. Yes, a simple majority vote in Parliament could repeal the Human Rights Act of 1998. Or, even had there been no Brexit vote in the first place, Parliament could have simply withdrawn from the EU on its own. However, for good reason, various unofficial conventions make some actions that fall within Parliament's official powers outside its actual powers, at least absent extraordinary circumstances.
Accordingly, we might concede that there was at least an unofficial commitment to treat the first Brexit vote as binding. But the key question is exactly how Parliament (informally and unofficially) bound itself.
To answer that question, consider a thought experiment. Suppose that the first Brexit vote had come out the other way. Suppose further that within a very short period after the triumph of Remain, one after another EU country elected a far-right government. (So far, this aspect of the example is not all that hypothetical.) And suppose that under the influence of these far-right governments, the European Parliament and European Commission began enacting draconian and racist policies that people in the UK found repugnant. Even though the Remain vote had triumphed just a few years earlier, it would be perfectly appropriate for Parliament to authorize a second referendum. Why? Because circumstances would have changed.
The reality is something like the mirror image of my hypothetical example. When UK voters chose Leave in 2016, they likely expected to leave in an orderly fashion. Just as the voters in my hypothetical did not vote to Remain forever in a fascist EU, so the actual voters in 2016 did not vote to Leave the EU amidst chaos. In both the hypothetical and real cases, going back to the voters is a way of saying now that we all have a better idea of how it's going to work, do you want to reconsider?
We can acknowledge that authorizing a third, fourth, and fifth Brexit referendum because the voters chose "wrongly" would be simple sore-loser-ism. But Parliament is not (anywhere near) there yet.
Furthermore, there is something perverse about invoking democratic principles in order to deny voters an opportunity to change their minds. The phrase one person, one vote, one time describes undemocratic regimes that come to power using democratic means. It is inherent in democracy that laws can be changed.
There are exceptions, of course. Article 79 of Germany's Basic Law disallows amendment of the Basic Rights set out in the first 20 Articles. Article V of the US Constitution makes amendment of the Senate effectively impossible. But these extraordinary provisions are controversial precisely because they violate the default democratic principle that in a democratic system, ongoing consent legitimates government.
Finally, a second Brexit referendum would be consistent with democracy in another sense. Voters who think that Parliament was disrespecting the first Brexit vote by authorizing a second could vote Leave. And regardless of the outcome of a second referendum, voters who thought that Parliament acted improperly by authorizing it could cast votes for different MPs in the next parliamentary election.