Brexit is an issue that combines the need for urgent practical decision making with profound questions about the value and meaning of democracy.
In my previous blog I discussed how far it would be an affront to democratic values to hold a second referendum, given the need to respect legitimate democratic procedures. I suggested that procedural fairness required a clear procedure, and the well-known flexibility of the UK constitution did not give the required clarity in the first referendum. In this blog I consider whether a second referendum would be wrong because it would violate the sovereignty of the people.
There are many who think that democracy means that the people are sovereign and so the will of the people, as revealed in the referendum of June 2016, should be respected. Leave aside the dubious notion that a plurality of individuals can have a singular will, a myth which I have discussed in The Will of the People: A Modern Myth. Is it not the definition of democracy to say that it is a political system in which the people are sovereign?
Rousseau famously said that the British people thought themselves free, but they were really free only once every five years when they exercised their sovereignty in voting. Had he been alive today, Rousseau might have added that they could also exercise their sovereign freedom in referendums alongside general elections.
But what, if anything, could it possibly mean to say that the people are sovereign? One answer sometimes given to this question is to say that the people are sovereign because they are entitled to have the decisive say on political questions. The sovereign in a political system is the body or person who gets the last say on any political decision. So, echoing Rousseau, some say that popular sovereignty is exercised at election time, when the people pass their judgement on the government of the day, and it is similarly exercised by a referendum.
However, this account of sovereignty as designating the body that has the final say is misleading. The test of sovereignty is not ‘who has the final say?’, but ‘who determines the rules that determine who has the final say?’
Sovereignty is about the rules for making rules. Sidney and Beatrice Webb were said to have an agreement under which Sidney would take the important decisions and Beatrice the unimportant decisions, but it was Beatrice who decided what was important and unimportant. In that sense, Beatrice was the sovereign.
So it is with political constitutions. A constitution is the body of rules that determine how the primary rules of law and policy are to be made. So the sovereign cannot be the people taken as a whole, because the people cannot make the rules by which primary rules are to be made.
A constitution may give the people a decisive role in making some primary rules, as for example with Article 46 of the Irish constitution requires proposals agreed in parliament for constitutional change to be submitted to a referendum. Yet, that cannot mean that there is a body called ‘the people’ can determine whether or not they get the final say.
Appearances are often deceptive in this regard. Many constitutions proclaim themselves in the name of the people, as in the famous ‘We the People’ at the opening of the US constitution.
However, as Walter Lippmann pointed out many years ago in his book The Public Philosophy, the US constitution was not drawn up by the people. It was drawn up in 1787 by selected representatives of the states governed by the Articles of Confederation and their document was ratified in constitutional conventions, the delegates to which were selected by eligible electors. Of the total population of around four million people, only 500,000 were eligible electors, and only about one-fifth of those eligible favoured the constitution.
The most common mistake that is made when referring to the sovereignty of the people is to commit a sort of naturalistic fallacy. It is the fallacy of assuming that the sovereignty of the people is a brute fact about the world, akin to the forces of gravity acting on the tides or the tendency of acids to dissolve metals. But of course the supposed sovereignty of the people is no such thing. It is an institutional and constitutional fact, the product of rules and conventions, sustained through continued political agreement.
If we talk about ‘the people’ having the final say on a political question, this can only mean that there is a constitution that gives the people this role. But the sovereignty of the people can never exceed that given to them by the constitution.
In the UK this is reflected in the view that in 2015 parliament delegated the decision on Brexit to the British people. But, since no parliament can bind its successors, a subsequent parliament has the constitutional power to revise that earlier decision. It might not be wise or politically prudent to do so, but it would not violate something that is sometimes known as the sovereignty of the people.