Referendums and the UK Constitution: Parliamentary Democracy versus the explosion of Popular Sovereignty

Whether or not they personally supported the leave position, the result of the Brexit referendum in the UK came as an unscripted shock to the elite classes and political establishment. In delivering a majority for the ‘remain’ position the people’s verdict was supposed to confirm the status quo and thereby settle a controversial issue for the foreseeable future. After all the decisive result in the Scottish referendum on secession in 2014 had encouraged a lively debate on the arguments for and against but independence was only supported by 45% of voters as and, as a consequence the call for  independence was dropped form the political agenda. However, the referendum in Scotland had a profound impact. The campaign arguably had a positive effect as it demonstrated a consolidation of support for the devolution project. In turn, there had been a ‘vow’ to respond by pro union parties. Parliament passed the Scotland Act 2016 which devolved more functions to the Scottish Parliament and gave it increased powers, including for the first time, extensive tax raising powers. In seeking to account for the leave result in the Brexit referendum some obvious but more negative points might be identified. The first concerns the genuine complexity of the economic and political issues associated with EU membership set against the wider public perception of what the EU represents. The second concerns the emergence of a new populism sweeping across Europe and the United States. This emerging force has attracted many voters who have been alienated from traditional parties and politics. Undeniably, the demonization of Europe by the popular press and hostile political forces proved extremely effective. The ‘leave’ campaign led by UKIP and the Euro sceptic wing of the Conservative Party successfully tapped into issues which resonate with the wider population. To take one example, it was possible to establish an association between a perceived fear of immigration and the lack of border controls throughout the EU. The slogan ‘take back control’ through the return of sovereignty appeared to offer a simple solution. But of course, the manifest advantages of barrier free trade and the complexity of withdrawal from the EU, including the implications for border control, hardly featured in the debate. In other words, the Brexit referendum arguably exposed some of the inherent shortcoming in using referendums to determine complex questions of this sort. Against the background of the uncodified UK constitution this essay provides a critical discussion of how the employment of  referendums as a form of popular sovereignty to settle controversial issues impacts upon the established system of parliamentary democracy. The first section provides a critical overview of how referendums have been used at the national and the devolved level of government since the 1970s. It will be apparent that this form of popular consultation has been resorted to increasingly for various different pragmatic reasons However, in the second section it is pointed out that under the traditional UK constitution general elections focusing on a major issue rather than referendums were employed for the resolution of contentious constitutional and political questions. The danger is that with the spread of referendums Parliament becomes divorced from core decision-making on crucial issues. In the final section the EVEL reform of parliamentary voting in response to devolution is analysed in some depth to see whether any general rules can be established to determine when referendums should be held, and to prevent the crude manipulation of public opinion for political advantage... (segue)