One of two core questions of political theory is, and has always been, the question of how best to make collectively-binding decisions, by whom they are to be made, and according to what kind of rules and procedures. (The other one, only briefly to be touched on in the present paper, is the question of how and by whom the policy decisions, once made, are to be implemented.) I take it that the quality of these modes of decision-making is not just something to be determined at the founding or “constitutional” moment of a political community by some pouvoir constituant. The question of whether our rules and procedures are still “good enough”, or whether they may need amendments and alterations, is rather an ongoing challenge in the background of any political process, certainly one that qualifies as “democratic”. Yet, how should we decide on how to decide? The difficulty of any conceivable answer to this question derives from its tricky recursive logic. This is because the answer, in order to be recognised as valid and binding, must itself be decided upon – but how and by whom? If we were able to deduce the “right” mode of decision-making from a robust theory of a divine order, as in an ideal-typical theocratic regime, the problem would go away. Conversely, if we had a “scientific” theory about whose decision-making competencies and methods would yield optimal policy results and unquestionably “rational” problem solutions (as was the claim of “scientific” state socialism), the problem of deciding how to decide would also evaporate and the “one best way” of running a country and its economy would reveal itself beyond any doubt. Given the obsolescence of either of these simplistic solutions, we need to face the fact that neither constitutional methods of arriving at decisions nor the resulting decisions themselves, i.e., policies, are capable of having any truth value which provides them with certainty and unquestionable validity. At best, political procedures can be consistent (or not) with widely shared normative premises of fairness and their policy outcomes can be regrettable – or not.
Instead of exploring answers that have been given by political theorists in the past here, I wish to illustrate the problem by drawing upon a case from contemporary history. This case is the Brexit referendum held in the UK on 23 June 2016 on whether the UK should leave the European Union or remain its Member State. Was it a wise decision to let the question of future UK-EU relations be settled by referendum?
Here is a summary of the events. A British anti-EU political party, the United Kingdom Independence Party (Ukip) had won a relative majority of 27.5 per cent of the vote in the 2014 general elections to the European Parliament and came out as the strongest party, with most of its electoral base won over from that of the Conservative Party. Anticipation of this threatening trend had already prompted the incumbent Conservative Prime Minister David Cameron to commit himself, in January 2013, to holding a referendum on the Brexit issue by the year 2017 in the event that he was re-elected in the national elections of May 2015. This promise was intended to serve the dual purpose of increasing British bargaining power in ongoing negotiations with its EU partners (who were seen as averse to further Ukip gains and the prospect of Brexit, and hence were ready to grant concessions to the British government) and to immunize the Conservative electoral base against further defections of the voters, as eurosceptic Conservative voters were now offered the option to vote “leave” without switching their vote to Ukip.
Both of these purposes were fully achieved. The turn to the plebiscitarian method of collective will-formation may also have been prompted by the perception of a rising tide of populist distrust directed at representative political élites in parties and parliaments and an attempt to appease such distrust by granting a direct voice to the supposedly more genuine, more authentic and non-corrupted will of “the people”. Having won the 2015 elections as a consequence and being bound by his referendum promise, Cameron initiated the EU Referendum Act, which was passed by the House of Commons in December 2015. When the referendum was eventually held on 23 June 2016, the result was 51.9 per cent “leave” vs. 48.9 per cent “remain”, with the citizenry sharply divided along class, age and region, yet not equally sharply along party lines. Given a turnout of 71.8 per cent of all eligible voters, this means that a minority of roughly 37.3 per cent of the electorate will have caused, in future retrospect (and in the event that it actually comes to that), Britain’s exit from the EU by a margin of just those three percentage points putting the “leave” winners ahead of the “remain” losers. The day after the referendum, Philip Stephens, chief political commentator of the Financial Times (24 June 2016) commented in undisguised horror: “Who would have thought pragmatic, moderate, incrementalist Britain would tear down the political temple? This week’s referendum result was a revolt against the status quo with consequences, national and international, as profound as anything seen in postwar Europe.”
When making their decision on referendum day, citizens were largely left with their own individual means of will formation and without any clear guidance from the political parties as to which of the two alternatives to opt for. The two major parties were either openly divided (Conservatives) or deeply ambivalent (Labour) about the right answer, and the only party that was clear and committed on the issue (Ukip) had no chance of achieving the parliamentary representation necessary, according to British electoral law, to follow its option through. Similarly divided were the media, with some of the tabloid press engaging in a competitive denunciation of the EU, often without much regard for the truthfulness of their anti-EU claims. Moreover, both camps were united in their reliance on fear as a negative motivation – be it the fear of losing control over the fates of “our” country to “Brussels” (or of having to compete with foreign migrant labour for jobs) on the part of leavers, or be it the fear of adverse economic consequences of a “Brexit” on the part of the remain camp where strong appeals to the advantages, attractions and promises of staying were rarely advanced, implying that there were hardly any. Being left in a state of disorientation and anxieties, and being informed by the media and polling organisations that the contest would be a tight one, voters had no choice but to voice their gut feelings and resentments, rather than their informed judgement on the merits of the two alternatives (and, least of all, the numerous compromise solutions that the binary Yes/No frame of any referendum induced them to entirely ignore).
How and why the decision to let the relative majority of those participating in the referendum decide on a most complex and highly consequential national issue can be justified as the “right” procedural decision – rather than as the (eventually failed) opportunistic calculus of a leading politician to maintain his power? In other words: What is this outcome’s source of validity and normative bindingness? Given its vast and highly uncertain short-term as well as long-term repercussions of the largely unanticipated outcome, some four million voters signed a petition on the days after the referendum, which called for the holding of a second referendum, thus indicating a widespread sense of regret, as well as alarm, over the outcome. Yet such repetition would supposedly have required another Referendum Act as its legal premise. Moreover, it would have opened the somewhat horrifying perspective of an endless chain of further referenda on the outcomes of referenda: If the first is seen as ill-considered and in need of self-correction, why should the second fare better?
Also, the procedural design of the Referendum Act failed to make use of the several safety valves that are often applied in referenda in order to strengthen the bindingness of the outcome, its chance of being durably and universally recognised as valid. For one thing, a quorum, or minimum required turnout of voters, could have been stipulated, such as a 75 per cent requirement. For the other, a super majority requirement could have been applied, such as a 60 per cent threshold that must be passed by either of possible outcomes; through the adoption of this mechanism, the objection could have been pre-empted, to an extent, that the result is, by and large, spurious, accidental and unworthy of being respected as binding.
Applying these two requirements could have been justified by reference to the fact that a referendum is a one-shot decision, and a highly consequential one at that, in the event that it is translated into actual policy. It causes consequences which are certain to make themselves felt in the long term future. In contrast, the “normal” democratic procedure of holding contested elections is defined by its periodicity, meaning that governing authority is granted pro tempore and that losers of an election will have another chance in four or five years’ time, with both competing parties and members of the general public being given a learning opportunity to revise platforms and preferences during the interval. If after an election, policies are considered to have gone “wrong”, there is at least someone to blame (and punish!) on next election day, whereas the voting public can only blame itself (i.e., nobody in particular, as the vote is secret and nobody can be held accountable) in the event that the results of a referendum turn out to be seen as regrettable. Under a pure referendum regime, citizens would thus be deprived of learning opportunities and the challenge of forming and revising considered judgement. Issue-specific referenda, such as they are advocated, for instance, for issues of land use and conflicts over the territorial (re-) organisation of political communities, may be argued for in terms of their “once-and-forever” temporal structure and substantive irreversability: “an airport means an airport”, and for a long time to come. Because of the “sunk costs” invested already, there is no point in repeating a collective decision in five years’ time to find out whether we still want it. The same applies to constitutional referenda. These are, however, typically designed not to preclude the space for future socio-economic and political contestation (as is the case with the losers in all substantive referenda), but, to the contrary, to guarantee the permanent availability of such space – a guarantee that is implemented, for instance, through a bill of rights, the division of powers, and the stipulation of constitutionally-specified procedures and competencies of interpreting, amending and changing the constitution.
A third provision that was, in fact, made use of in the Brexit referendum is the procedural stipulation that the government is not strictly bound to implement the result, but can treat it as merely advisory. As sovereignty resides in Parliament, it is this representative body that must decide as to whether or not to endorse and subsequently implement the referendum decision. For the only thing that even the most sovereign body cannot do is to abdicate its own law-making powers and transfer it to another body, such as the multitude of citizens voting in a referendum. It follows that a Prime Minister cannot promise voters that he or she will follow their expressed preferences as though they constituted an act of legislation. In the absence of a parliamentary endorsement and ratification of the (presumed) popular will as expressed in a referendum, the latter remains entirely inconsequential. For example, the invocation of Article 50 TEU (the article that prescribes the first step of the procedures of actually exiting from the Union) must doubtlessly be an act of Parliament.
To be sure, such parliamentary endorsement of the referendum decision might well be the result of principled argument and proper deliberation, weighing the merits of the “advice” that the voting public has offered against alternative policies. Yet, the sovereignty of the Parliament of having the last and decisive word has been rendered entirely nominal by the referendum itself and the legislature’s previous decision to hold it. By adopting the EU Referendum Act, thereby seemingly passing its legislative responsibilities to the “people”, the Parliament has virtually destroyed its chance of being credited with the capacity for deriving policy from informed, considered and balanced argument. It has eschewed its responsibility to do so. After having unleashed the plebiscitarian forces voicing fear of foreign control and foreign migrants, neither parties nor members of Parliament could henceforth afford to adopt and advocate any solutions to future UK-EU relations that could be denounced as defying the referendum’s “advice”. After all, politicians cannot be expected to commit electoral suicide by refusing to follow the “will of the people”, the expression of which they had allowed for as part of a power game. As a consequence, the force of the referendum majority, however slim the margin, made the committed “remainer” PM David Cameron disappear from the political scene of U.K. national politics in a matter of a few weeks, while the most prominent “leave” protagonist, Boris Johnson, moved up to the position of Britain’s Foreign Secretary. The new PM’s signature tautology (“Brexit means Brexit”) ratifies the de facto unconditional surrender of representative to plebiscitarian will formation. In the eyes of many on the “remain” side, the evidence of this force is likely to breed cynical views about politicians being steered by their populist readiness to adjust to arguably short-sighted mass resentment. As constitutional scholars Richard Gordon and Rowena Maffat have stated with unfathomable juridical wisdom:
“In practice, the […] referendum outcome will bind the government. In theory it is advisory but in reality its result will be decisive for what happens next.”
Let us now assume the (not entirely unlikely, but this is not my point here) case that “what happens next” in “reality” is a chain of events that frustrates the hopes and expectations that have been entertained by the majority and thus lets the initial and (practically irreversible) Brexit decision appear as, in retrospect, as misguided and regrettable. The immediate consequence of such frustration will be accusations directed at “them”, i.e., élites who have deceived “us”, the citizens, through false promises, and at the media that have misinformed us through their mendacious propaganda that has led the majority to decide the way it did. The sense of regret may lead us to the fruitless wish: If only we had made a different decision! But this frustration may also lead us to conclude that not just the decision but the very mode of making collective (and highly consequential for “all of us”) decisions has itself been ill-advised. How can a Prime Minister be allowed to adopt a risky tactic of maintaining his power position (over the country, his party, and within the EU) and make everyone else pay for the costs of what turns out to have been a frivolous miscalculation? If the chosen procedure of decision-making comes to be seen as a lesson of what not to do, such conclusion may rightly trigger the “constitutionalist” search for alternative procedures of decision-making that can possibly protect us from the regrets and complaints that we feel when facing the consequences of decisions that we have made under that procedure. The question becomes: Are there better and smarter, i.e., more reliable “ modes of making highly salient decisions – ways that are compatible, at the same time, with the basic tenets of democratic political theory, namely, equality of civil and political rights, freedom of opinion, and the division of state powers?
 I have argued elsewhere that there are altogether three kinds of regrets – or retrospectively perceived and deplored deficiencies of previous judgment – that are to be avoided: deficient future-regardingness, deficient other-regardingness and deficient fact-regardingness. Taken together, they can serve as a standard of political rationality. Cf., Claus Offe, “Crisis and Innovation of Liberal Democracy: Can Deliberation Be Institutionalised?”, in: Claus Offe and Ulrich K. Preuss, Citizens in Europe: Essays on Democracy, Constitutionalism and European Integration, (Colchester: ECPR Press, 2016), pp. 73-98.
* This essay is from a Working Paper of the European University Institute, Department of Law, entitled “Brexit and Academic Citizenship” (LAW 2016.20, San Domenico di Fiesole 2016, available here. The paper, edited by Christian Joerges, collects a series of personal reflections on the outcome of the Brexit referendum. The essays do not engage with the legal and constitutional issues that arise from this event – these aspects have received comment elsewhere. Rather, the editor has solicited personal reflections from a group whose scholarly journey included the European University Institute, a hub for transforming, and integrating Europe. Aware of this privileged position, the authors shed light on how the result of the referendum and its aftermath may impact on the UK and the European Union.