Answering for a friend..

I was asked by a friend about the result of the 2016 UK Referendum about leaving the EU - "the vote has happened and yes it was close, but it was democratic, so why can't people accept it and get on?"

Alas, there is no quick answer, there is a lot of nuance surrounding the issue in terms of arguments before the vote, interpreting the result, and how to proceed downwind of that. Plus there is a fundamental problem with debating the subject - it appears no one's interested if it can't be expressed in a couple of sentences. It's not an attention span thing, nor an issue around intelligence, it appears to be, possibly, more to do with not wanting to examine issues of trust and identity, but that's probably my psychology degree talking(!).

So - I'm not going to even attempt to give a short answer. I will lay out what I see as the central issue at stake, and why 'accepting it and moving on' would be to dismantle, rather than promote, democracy in the UK.

The main problem with what happened in 2016 is one based in constitutional law, and what defines 'democracy.'

Aristotle, Weber, and others upon whom we base our ideas of democracy and governance, set out and discussed many forms of democracy. It's not a single immovable object or idea. The word has problems. Like the word 'love' - when someone says it, what is the context, and what are they actually meaning? Equally, what does a person mean when they say 'democracy'? Drawing lots is blind democracy, everyone gets a go at choosing, though no one has a direct choice in the outcome. There's Representative Democracy, such as in the House of Commons, where groups elect a person to represent a number of people. This itself has a problem - whom does the Representative represent? Is it 'the people,' is it their affiliated party, is it some broader ideal? It's worth bearing in mind folk like Edmund Burke ('the father of modern Conservatism'), who spoke at length about the 'solemn and overriding duty of members of parliament,' said "Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion;" and Churchill - "The first duty of a member of parliament is to do what he thinks, in his faithful and disinterested judgment, is right and necessary for the honour and safety of Great Britain."

There are many other forms of democracy, e.g. Proportional Representation; Alternative Vote system - about which we had a referendum in 2011 and rightly rejected; and others. Somewhere tucked in amongst all that is just the ordinary vote where the most votes cast for an idea wins - the simple majority. Pretty much every thinker on the subject sees this as the lowest form of democracy, and declare it only appropriate for small numbers of people and for matters of lesser consequence. Weber worries about 'mob rule' (it's proper name, by the way, is ochlocracy), Aristotle goes so far as to call it 'Evil Democracy,' and no one ever suggests using it for anything with large numbers of people, nor important issues - such as determination of matters of State!

One might quickly point out that the House of Commons uses this simple majority vote when passing law - the Ayes and Nays. However, for each law, there are multiple layers and votes - HoC vote on first reading, House of Lords debates and suggest amendments, HoC has second reading and vote, HoL debates/amends, HoC has third reading and final vote. So whilst the voting process is simple, the procedure is not. Being the 'Mother of Parliaments,' with the first modern General Election in 1695, we have had rather more practise at this than any other current nation. Whilst we have no constitution written in a single place, we have centuries of law and protocol set out which guide the processes. Whilst I'm am often iconoclast and have little time for pointless tradition, I'm pleased that our Parliamentary system has some, and though it's not perfect, it's generally fairly robust.

So.. we come to The Referendum Act 2015. Referenda can be set out in a variety of ways, and this act was debated and designed to fulfil a certain function. Page one of the Act states clearly that it was to be 'Advisory,' and here is the first point of contention. Being advisory meant that it was not intended to be binding or the result brought directly into law; its purpose was to bring the electorate's views to a Commons debate about what is best for the country in relation to the EU. We have run very few referenda in the UK, mostly because they are not felt to be 'good democracy' in a land which is governed by a Representative Democracy where there is a countrywide vote at least every five years (originally it was every three, a couple of centuries back..). Other than the AV Ref, none of the referenda have been binding, though Cameron stated he 'believed' the Scottish one in 2014 was, but there was no stated legal basis for his claim, it certainly wasn't in the legislation.

Very few of the referenda held in the UK have had any controls placed on them - thresholds for turn-out, motion to carry, etc. And whilst they have been, arguably, very poorly designed democratically, it's not, really, been an issue as the results have generally not been close. The various Welsh referenda had thresholds stated for motion to carry - in 1979 the motion was rejected; in 1997 it just passed the threshold and so the Welsh Assembly was created. With results not having been close, we've basically 'got away with it.' It wasn't good democracy, but the result covered over a multitude of sins. The EEC referendum in 1975 was non-binding, as the 2016 one was designed to be, but with 67% in favour from a 64% turnout, there was no need to work out how to process the information.

It is worth noting that Alex Salmond tabled an amendment to put in provisions for motion to carry for the 2016 Ref, indeed he proposed a quadruple lock, that not only should there be an overall UK majority, but majorities in each of the four component parts of the UK. His amendment was rejected on the grounds that the referendum was to be advisory and non-binding. Had he proposed a different form of threshold, it might have been accepted. Having said that AV Ref had amendments tabled by the Lords twice to have some sort of threshold, but they were defeated both times by the Commons. The 2015 Referendum Act was debated and passed.

Between the Act gaining Royal Assent and the actual vote, the Conservative party issued a leaflet to every household saying that 'the Government will implement what you decide.' And here is the root of the problem. That leaflet had no basis in law - the Act didn't say that, none of the debates said it. But being in a Govt leaflet gave it an air of authority from which it is hard for a politician to distance themselves without looking 'un-democratic.'

So the day came and went, and the result was a knife edge. If you tossed a coin 35m times you'd get a similar result. Nigel Farage stated a few days before the 23rd June that 'in a 52:48 referendum this would be unfinished business by a long way.' Curiously prescient of him.. The final result was marginally closer than his fears, being 51.9:48.1. There are arguments about the quarter of the electorate who didn't show up to vote, and whether their abstentions should be taken into account; but the Ref Act 2015 didn't mention anything about them, so we'll leave that to one side.

From the result the advice to HoC would be that we had a divided nation, and when they get around to having the debate on whether we should remain in the EU, they would have to tread carefully and sensitively around the subject. That was the purpose of the whole exercise.

Only, that's not what happened. HoC have still not had that debate. David Cameron made the decision himself, declared we were leaving, and walking into Number 10 humming a curious tune. Within 24 hours of the result, centuries of parliamentary constitutional law were bypassed. And this is the bone of contention. Folk like Gina Miller have contested it in court, and the High Court have ruled that the leaflet was not legal, and had no right to have stated what it did. The hearings also raised various concerns about the process, and what the result actually meant.

In the months that followed, it became apparent that the rhetoric of the Leave campaign was flawed. Arguments have been put forward about dishonesty from the Remain group, but there has been little to disprove about their position, as we have lived it for the last 40 years. Now, political campaigns based around mis-truth is nothing new, and whilst it's irritating that folk took in the lies and voted in line with them, as well as their views on immigration, control, etc., they voted that way and that's all there is to it. One hopes they may regret it, and see truth of what happened, but one oughtn't hold one's breath. No one likes to face having been lied to. However, the issue at stake here, really, is due process, and whether we are a democracy.

Fast forward a few months, and the Article 50 White Paper is published. After the Leave campaign championing the phrase 'Take back control,' it was interesting to note that the White Paper claimed on the first page that Parliament has “remained sovereign throughout our membership" of the EU. Issues surrounding the absorption of EU law that were touted during the campaign also appear slightly disingenuous when the statistics show that in the last decade the UK voted with the EU for over 2000 items of legislation, which all became parts of UK law, and voted against around 50 items. Those 50-odd still became UK law against our wishes, but agreeing with 97.5% of the laws put forward suggests that we did pretty well.

January 2017 saw the 'European Union (Notification of Withdrawal) Act 2017' debated and passed: and still the debate about the referendum result hadn't happened. And this is a problem. Proper UK democracy - the following of laws passed, the conventions and protocols of how our Parliament is designed to operate, the checks, balances and due process - has been willingly and knowingly laid aside. And it's all rather odd. We have recourse to the High Court with this. It should not be seen as a done deal, as 'the people have spoken' - this isn't about the people having spoken, and never was. Advice was sought from them, and that was it. Were 'The People Have Spoken' a thing, one looks back to that first modern General Election in 1695, and it turns out The Whigs won. If The People Had Spoken, then how the heck do we have a Tory government now? It's a meaningless phrase, and coupled with the highly emotive 'The Will Of The People,' makes it very difficult for any politician with an understanding of the complex issues surrounding withdrawal from the EU to voice their concerns.

Deployment of these phrases suggests the spirit of Machiavelli is alive and well.

My friend also said "I thought about the last election, which was very close. So I looked that up and it was something like 42% Cons and 40% Labour. I think those of us who were disappointed but cleverer than me worked out that if it had been counted differently Labour would have got in." This is a valid point, and why our democracy is structured such that we hold General Elections at least every five years. Opinions change, ideas of what is best for the country are not static. Three years after 1695, the Tories won. The Will Of The People, had it existed, had changed, overturning the Will of three years before; and so democracy in this country started to roll its difficult journey through modern history.

Whilst referenda are infrequently used by the UK, there may be an argument for using them periodically to test the electorate's response to an idea outside of the general political process. There have been a few concerning Welsh self governance, each with sufficient time between them that testing the waters may be worth while. Having a second EU referendum some decades following the one in 1975 may or may not have been a good governance. There are some worries from history about the multiple deployments of a referendum as a political tool, and satirical films on the subject, such as 'The Rise and Rise of Michael Rimmer, bear consideration in relation to the nature of the political forces seeking to use them.

There are fundamental issues with the nature of how the 2016 referendum was run, both in preparation and following it, which I have highlighted here. They could have easily been mitigated. Using a simple majority is an appropriate way of answering questions such as 'should we watch Thomas The Tank Engine or In The Night Garden?' but not for the determination of matters of State. A 'super-majority' is more appropriate if the result is to be binding - yet none was set, as it was both declared during Parliamentary debate and in the legislation that it would not be needed given the nature of the intention underlying the vote.

My feelings about the result, I don't doubt, come through in my choice of words and phrasing, and had the process followed been in line with our democratic traditions, I would have been stoic and less vociferous in the face of a similar result.

However, I hope I have shown, in some way, that whilst the result of the referendum is, perhaps, lamentable and will have many far-reaching consequences to its enactment (there I go again); the problem is not so much the result, but the undermining of our democratic constitution. This is, fundamentally, why we should not 'accept it and get on.'

As a side note, it is worth noting that the civil service in Whitehall are perfectly competent in drafting watertight 'democratic' legislation, one need only examine the laws surrounding a Union's right to strike.

There is a real irony that the path being followed is one that is significantly undermining democracy, whilst being carried out in that name. Perhaps it is the British love of irony that has held most MPs back from following Burke and Churchill's advice.

Addendum

Those who practise science will know that on the proposal of a hypothesis, one develops a methodology to test the hypothesis, then examines the results to look for trends in the data that support or refute that hypothesis. Various statistical tests are available, and depend on the structure of the methodology as to which is appropriate; but no matter which tests are used, one looks for a result which decisive. It is accepted practise to look for results which have a significance of greater than 5%, anything less than that is considered to be noise - it doesn't support the hypothesis and any scientist worth their salt will reject that hypothesis, and go and make a cup of tea (optional, though recommended).

Whilst the 2016 Referendum

• was essentially, a political, rather than scientific, experiment;
• had, as we've seen, a curious methodology; and
• had results that won't even fit a simple T-Test, let alone an ANOVA

the difference between the two votes was 3.8%. As mentioned, were one to toss a coin 35m times the result would be very similar (so long as Rosencrantz and Gildenstern were not involved..).

Intricate matters of law aside, if anyone is willing to base fundamental matters of State on something comparable to the toss of a coin, they should probably re-evaluate what they believe 'democracy' to be.