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Britain at the constitutional crossroads

The case for a second referendum—and a "deliberation day"

By Bruce Ackerman  

Counters empty ballot box at the Titanic Exhibition Centre, Belfast, as counting gets underway in the referendum on the UK's membership of the European Union ©Liam McBurney/PA Wire/PA Images

I would hope that the grave crisis in which Britain finds itself will encourage even the most no-nonsense inhabitant of these islands to confront an “ideological” question with uncharacteristic seriousness:  What precisely is the relationship between the principle of popular sovereignty and theoutcome of a single referendum?

Prevailing opinion seems to be moving in the direction of Nigel Farage—for whom it is obvious that a single 52 to 48 vote suffices to establish that the People of Great Britain demand Brexit. But this is not obvious at all. To the contrary, the 23rd June vote is best understood as the beginning, not the end, of an intensive period of popular debate and decision. While the 48-52 vote does indeed express widespread dissatisfaction with the status quo, the principle of popular sovereignty requires something more—an informed and deliberate choice of a new direction for Britain.

The conditions for such a choice can only arise after parliament authorises Theresa May to invoke Article 50, and she returns within two years to provide ordinary voters with a concrete deal that allows them to confront Brexit’s real world meaning. Only if they vote their approval a second time should their decision be considered authoritative. Only then will the referendum satisfy two basic preconditions for the legitimate exercise of popular sovereignty.

The first condition requires the referendum to express a considered decision by the voters—not merely one that is based on contingent inclinations expressed at a particular moment in time. In making important choices in our personal life—choosing a job or a home—we all do our best to expose our immediate inclinations to sober second-thought. Granted, there are also dangers in dilly-dallying forever—but we know that it’s really stupid to take the path that seems most attractive at first sight without a second look. With the exception of some ecstatic existentialists, a leap in the dark shouldn’t be a cause for celebration in its own right.

The same is true in politics. To put my point in practical terms, when parliament shortly turns to consider the government’s bill triggering Article 50 (assuming the Supreme Court confirms that parliament should have a say), it should amend the bill to require a second referendum in two years’ time. This will allow for hundreds of millions of conversations around the dinner table and at the pub, in which citizens can test their initial impressions to reach considered judgments.

The two-year period will also permit a more legitimate decision on a second dimension. To see my point, return again to the dilemmas of personal decision. Although you may engage in serious reflection about a big decision, you may simply be wrong when it comes to crucial facts—perhaps an attractive job offer has hidden down-sides or a potential life-partner is conducting a secret love affair.

The same is true when it comes to Brexit. If voters are given a chance to go to the ballot-box a second time, they will confront Theresa May’s best shot at a soft Brexit. While many imponderables will remain, they will be in a far better position to understand the stakes than they were on 23rd June.

Even this decision will fall short of one-or-another ideal picture of informed deliberation. A referendum campaign isn’t a philosophy seminar—nor should it be. We are dealing with the proper design of a constitution for a democracy, not some twenty-first century Platonic Republic. Nevertheless, for real-world democrats, there is all the difference in the world between the wake-up call of 23rd June and the exercise in considered judgment that would be delivered by the People in 2019.

While it is easy to see why Nigel Farage refuses to recognise this difference, I find it surprising that Theresa May, and so many other one-time Remainers, fail to appreciate that conditions are not yet ripe for the British People to give an authoritative answer to a question that will shape their future for generations to come.

There is nothing in Article 50 that explicitly precludes a second referendum. To the contrary, a government can trigger it simply by expressing an “intention” to withdraw. So long as the British people withdraw their consent within the two year period, standard principles of international law suggest that their country’s membership within the union remains secure.

As a consequence, the prime minister should not resist parliamentary demands for a second referendum, but should endorse special steps to assure that voters take their responsibilities seriously in making their fateful decision.

In that spirit, I’d like to urge consideration of a proposal that Jim Fishkin and I have developed to address this very problem. While it may seem speculative at first glance, it is in fact based on 25 years of rigorous social scientific investigation. Let me first simply present the basic idea. Our book, Deliberation Day, calls for the creation of a new national holiday at which citizens are given a day off from work to join their neighbours at local community centers to discuss the key issues raised by the coming election.

Deliberation Day would begin with a familiar sort of televised debate between leading spokesman for the Yes and No sides on the Brexit issue. After the show, local citizens form small groups of fifteen, which begin where the televised debate leaves off. Each group spends an hour responding to the broadcast by defining questions that the national spokesmen left unanswered. Everybody then proceeds to a plenary assembly of 400 to hear their questions answered by local representatives designated by the national “Leave” and “Remain” campaigns.

After lunch, participants repeat the morning procedure. By the end of the day, they will have moved far beyond the top-down television debate of the morning. They will have achieved a bottom-up understanding of Brexit’s implications for the nation. Discussions begun on Deliberation Day will continue during the run-up to Referendum Day, drawing those who did not attend into the escalating national dialogue.

Deliberation Day isn’t an idle fantasy. It builds on more than seventy-five social science experiments, conducted throughout the world, in which representative groups of citizens have engaged in the give-and-take I’ve just described. Fishkin has been the leading force behind these “deliberative polls,” as he calls them, and his Stanford Center for Deliberative Democracy has organised an impressive research effort that has rigorously analyzed polling data. These empirical studies consistently demonstrate that participants greatly increase their understanding of the issues and often change their minds on the best course of action. Swings of 10, or even 20, percentage points are very common.

For present purposes, the results of two polls are particularly suggestive. In 1995 and 1997, two groups of British voters, representative of the country in both attitudes and demographics, were invited to discuss the future of the country’s relationship to the European Union. Deliberations proceeded along the lines I described—with ordinary citizens meeting in small groups to prepare for encounters with leading political eurosceptics and europhiles, including the up-and-coming Gordon Brown. On each occasion, participants began the proceedings with pro-European sentiment in the low-to-middle 40s; on each occasion, deliberation changed a lot of minds, and pro-European views rose to the high 50s or low 60s by the end of the discussion.

I don’t suggest that the same thing would happen in 2019. The polls took place a quarter century ago, and Deliberation Day might well swing in the opposite direction today. Indeed, systematic study of all seventy-five deliberative polls shows that there have been big shifts to the Right, as well as to the Left, on many occasions as citizens gain a better sense of how large issues of public policy relate to their core values. My point is simply that Deliberation Day deserves a serious place in the debate over the 2019 referendum.

Our book goes on to argue that a country like Britain could readily meet the bureaucratic challenges involved in organizing Deliberation Day at a reasonable cost. But obviously, there are many other reasonable ways to design the referendum in an effort to redeem the promise of popular sovereignty.

Only one thing is clear: Britain won’t get there by muddling through.

This is, alas, precisely what the May government is presently attempting. Rather than inviting a serious debate on the meaning of popular sovereignty, the Prime Minister is trying to make an end-run around parliament by invoking the royal prerogative to trigger Article 50. Like the rest of you, I will be a very interested bystander to the government’s effort to defend this maneuver before the Supreme Court.

I should emphasise, however, that this article has been exploring a dimension of the issue which is not involved in the litigation.  

Although the High Court’s judgment rejected the government’s claims, it did not do so on the grounds that I have been developing. Rather than reflecting on popular sovereignty, the Court focused on the principle of parliamentary sovereignty—insisting that the government’s appeal to the royal prerogative represented an unconstitutional end-run around the House.

My aim here, however, is to suggest that the traditional way in which the High Court posed its question doesn’t do justice to the distinctive character of the current crisis. The issue isn’t simply parliament versus royal prerogative, but the rise of popular sovereignty as a constitutional principle in its own right.

When viewed from this angle, my thesis appears in a paradoxical light: Precisely because the notion of popular sovereignty is so unfamiliar in British constitutional culture, the 23rd June vote has been accepted uncritically as an authoritative act of “We the People” by broad swathes of the British political class as well as the general public.

It is here where my outsider perspective might prove useful. As an American, I come from a country whose constitution is based on popular, not parliamentary, sovereignty—and we have two centuries of experience in working out the practical implications of this foundational commitment. If there is anything we have learned, it is this: from the election of Thomas Jefferson in 1800 to the election of Ronald Reagan in 1980, there have been moments when a particular voting result served as a major turning point, with voters repudiating the status quo, and giving their support to leaders who advanced a new constitutional vision for America.

But this is all it accomplished. Although a Franklin Roosevelt or a Ronald Reagan might assert that their initial electoral victories had granted them mandates for fundamental change, such assertions of plebiscitarian authority only provoked political opposition that framed further electoral contests—which gave voters further opportunities to confirm, modify, or reject their original proposals for transformation in the name of the American People.

The same is true, I suggest, of parliament’s encounter with Brexit. If I am right, my conclusion reinforces the High Court’s holding. The government’s appeal to royal prerogative not only assaults a principle of parliamentary sovereignty rooted in centuries of British history; but it is attempting an end-run around parliament in the name of a single referendum that cannot rightly be viewed as an authoritative decision.

As you may have noticed, America is also confronting a similar issue. The election of Donald Trump, like the referendum of 23rd June, signals an emphatic, and broad-based, challenge to the status quo. But it remains for the next elections to determine whether President Trump’s victory represents a flash in the pan, or the harbinger of yet another revolutionary transformation of foundational principles in the name of “We the People.”

America and Britain, in short, continue to maintain a special relationship. We confront parallel constitutional dilemmas—and the way we manage to resolve them will shape the future of the trans-Atlantic community—and much else besides—for a very long time to come.

This is an edited extract from a speech given by Ackerman on 2nd December, hosted jointly by Queen Mary University London’s Mile End Institute, The Centre for the Study of the History of Political Thought and the Centre for Law and Society in a Global Context

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