Two weeks on, the insanity of Britain leaving the European Union has become a dawning horror. Three political parties are in tatters, their leaders having either resigned (UKIP, the Conservatives) or under enormous pressure to do so (Labour). There is no leadership and nobody knows what to do. The political parties, clearly terrified of what comes next and at a loss as to where to begin, are instead occupying themselves with displacement activity until the frozen moment arrives when they will actually have to do something about pulling Britain out of the European Union. Or not pulling it out of the European Union, because as matters begin to crystallise, all sorts of sensible people and organisations are coming forward to point out that parliament should act to prevent this collective suicide.
The leading London law firm, Mishcon de Reya, has announced, too, that it has been instructed by “a group of clients” to take legal action preventing the British government from triggering Article 50 – which initiates departure from the European Union – without an Act of Parliament, saying that for the government to do so would be unlawful. There have been calls for a second referendum – it’s happened before, in Ireland – and pleas for the House of Commons to do its moral duty and over-rule the referendum outcome.
This sounds outrageous to those who are unaware that a referendum is merely consultative and does not have the force of law. Laws in representative democracies (where you vote for members of parliament, who then take decisions as representatives of the people) are made and changed by the people’s representatives and not directly by the people. Members of parliament are legislators. Electors are not. Electors elect legislators. Britain, like Malta, uses a system of representative democracy and not direct democracy.
The nature of the vote in a referendum is completely different to that in a general election. In a general election, people have the right to vote for (choose) their representative in parliament. And in doing so, they delegate all further decisions to him or her, their member of parliament. Matters of intelligence or informed opinion simply do not come into it: everybody, however stupid or ill-informed, has the right to choose the person he thinks is bested suited to represent him. That is the equality of the vote.
Things change when you come to the vote in a referendum. Now, people are not choosing the individuals who they wish to represent them, and to whom they will be delegating all decisions to be made on their behalf. Now, people are being asked to decide on important and complicated technical issues, which major and permanent impact, for which they are largely not qualified to decide. And of course, they should not be taking any decision of the sort. We vote for members of parliament to take those decisions themselves, in parliament.
Our right to decide – through the vote – who represents us in parliament is inalienable and cannot be argued with. But there is no such concomitant right to decide, through direct democracy in a referendum, on major issues like divorce or whether our country pulls out of or joins the European Union. Going into the intricacies of why this is so will push this column way beyond its stipulated word count. So I’ll stick with the basics and hope they give you something to think about.
I’ve heard it said often in this debate that “the people are supreme”. Well, actually they’re not. The people are represented through parliament, and for the purposes of this argument, it is parliament which is supreme. A vote in direct democracy, by the people in a referendum, cannot supersede, block or force any parliamentary decision, and it does not have the force of law in and of itself. The people are not legislators; MPs are.
Of course, the simple truth is that referendums, which purport to be so democratic, are in fact anything but. They are a legacy of another, far less democratic, era and have no place in 21st-century European civilisation. Take our own three pointless and very dangerous referendums in Malta. There was no need to have a referendum on joining the European Union. The Nationalist Party had included in every electoral programme since 1981 a pledge to take Malta into the EEC/EC/EU, and the majority of the electorate had voted for that electoral programme in every general election between 1981 and 2003, bar 1996. And in 1996, when the Labour Prime Minister “froze” Malta’s application to join the European Union, the electorate froze too. It was one of the main reasons why people rushed to vote him out again, and for the Nationalist Party and its pro-EU membership programme, just two years later.
Malta’s EU referendum was doubly pointless because the government of the day did not plan to act on it. It was held when the government’s five years in office had almost come to an end, and a general election was due anyway. The general election result did not “confirm” the referendum result, as people like to say. It superseded it. The Nationalist Party was elected with a fresh mandate to take Malta into the European Union, and it did so. Had the Labour Party won the general election, on its anti-EU membership programme, Alfred Sant would have had a mandate to block membership. He would not have been “over-ruling” the referendum result. He would have had a popular mandate to block membership.
Now take the divorce referendum. What would have happened if the majority of people had voted against divorce legislation, rather than for it? Would Malta have had to remain permanently, until kingdom come, without divorce legislation? Well, exactly – of course not. And that’s why it should never have been put to the vote. Some things are beyond dispute: the need for divorce legislation, the need for Britain to stay in the European Union. When prime ministers try to save themselves or take the easy but prospectively disastrous way out by shoving the decision into the hands of the electorate instead of taking that decision themselves, they generally have no Plan B for what happens if people vote against divorce or for Britain leaving the European Union. So you have to wonder at their short-termist thinking and high-risk strategy.
But it would be wrong for parliament to ignore the result of the referendum or over-rule it, many people have said to me in conversation. Oh, not at all. We have all been in situations in our lives where we have had to judge whether greater harm is caused by sticking to convention, received wisdom and the rules than by breaking them. In fact, it is one of the indicators of low intelligence when individuals rigidly stick to what they see as the rules or established practice no matter how much harm they do and without a mental ‘cost benefit analysis’ of the consequences.
When the harm done by upholding the referendum result is unquantifiably worse – catastrophic, disastrous, permanent, economic chaos, a drain of billions of pounds, massive job losses, total economic restructuring, years of hopeless negotiations with a negative outcome, millions of people with their lives restricted – than the harm done by ignoring it (some riots in the streets, lots of angst for the political parties, lots of angry people who don’t vote in the general elections), then members of parliament and politicians generally have a moral duty to do the latter.
But instead, we are subjected to the spectacle of British politicians saying, effectively: “The British people voted to throw our country off a cliff, therefore we must throw our country off a cliff and in doing so pull together in the hope that Britain will be great again when it smashes to the ground.” And politicians elsewhere in Europe, including Malta, are saying: “The British voted to commit suicide and if they want to commit suicide, we are obliged to help them do it.”
There is, however, no moral (still less legal) obligation to bring about disaster on the basis that a simple majority of people voted for it in a referendum. There is, on the other hand, a moral obligation (and a legal basis) to do what you can to stop it.
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