Image: Anti-Brexit demonstration, July 2016. Flickr/Andy Worthington
What do ‘we the people’ think about Brexit? A simple enough question that the referendum in 2016 answered definitively?
The referendum result is as striking for what it doesn’t declare as much as what it does. In a vote between Remain and an undefined Leave option, Leave won. But the UK cannot leave the EU in an undefined way. It has to leave in a specific, determinate way. How far there is a majority for leaving on any specific set of terms is unclear.
This ambiguity around Brexit has recently been explored in a fascinating - and instructive - experiment organised by Professor Alan Renwick at UCL’s Constitution Unit. Renwick and his team organised a Citizens’ Assembly to explore attitudes to Brexit options. Citizens’ Assemblies are bodies of citizens chosen at random from the general public but in proportions that represent the make-up of the population. In the case of the Brexit Assembly, as Renwick explains, there were some 47 citizens selected to create a group that was representative of the UK population in terms of class, age, ethnicity, sex, and in terms of the Brexit vote itself with 25 Leave voters and 22 Remain voters.
Citizens’ Assemblies use carefully structured deliberation. Its members are given the time and material to assess the issues, explore difficulties and develop recommendations based on all the major arguments. Across two weekends of structured discussion, using materials vetted by a panel that included supporters of Leave and Remain, the UCL Brexit Assembly explored a series of key questions about how the UK should approach Brexit.
For example, the Brexit Assembly deliberated over what kind of trade deal the UK should seek with the EU. As a first preference, the most supported option was for a limited trade deal with the EU, though no option commanded a majority of first preferences. A striking result in view of the way the government is approaching the Brexit negotiations is that when given a choice between staying in the single market and having no trade deal at all, there was a strong majority preference in the Brexit Assembly for staying in the single market.
Such results are interesting in themselves and one can hope that they will feature more in the emerging debate in the UK over Brexit options. Given that Brexit derives its claim to legitimacy from the principle of popular sovereignty it seems only appropriate that the shape of Brexit itself should be informed by popular preferences, particularly those that reflect balanced discussion of the issues.
The model of the Citizens’ Assembly arguably speaks to the UK’s post-referendum condition in wider and more fundamental ways, however. It takes us right to the heart of what we mean – or ought to mean – by ‘popular sovereignty’.
Popular sovereignty or parliamentary sovereignty?
Perhaps the most basic constitutional issue raised by the referendum and its immediate political aftermath concerns the founding principle of the UK as a political order. Is the UK’s political regime founded on the principle of parliamentary sovereignty or the principle of popular sovereignty? We no longer seem to know. Many parliamentarians themselves now state that Parliament may not overrule the direct ‘will of the people’ as expressed in the referendum. Nor is this view confined to Brexit supporters. So, viewed from one angle, popular sovereignty has displaced parliamentary sovereignty.
There has, however, been very little systematic reflection on what this implies (an exception being Anthony Barnett’s The Lure of Greatness which argues that the UK’s traditional constitution is now irreparably broken). One view, clearly adopted by some pro-Brexiteers following the Brexit referendum, is that respect for popular sovereignty somehow requires giving the UK executive sweeping powers to act as it sees fit in pursuit of Brexit, keeping Parliament out of the process in any meaningful way. Buoyed up by the infamous Daily Mail headline on the need to ‘Crush the Saboteurs’, this was the philosophy that Theresa May sought to vindicate with a landslide majority in the 2017 general election. Thankfully, the philosophy was repudiated as the Conservatives lost their majority (although The Daily Telegraph is keeping the authoritarian flag flying with its recent reference to independent-minded Conservative MPs on Brexit as ‘mutineers’).
The May-Brexiteer view seeks to harness the principle of popular sovereignty to legitimise arbitrary executive power. But popular sovereignty is more properly seen as the basis for creating a legitimate constitutional order – a constitution that serves to limit arbitrary power. It is for the sovereign people to make the basic constitutional order of their society and for elected representatives then to make policy within this agreed constitutional framework.
The UK has not (yet) embraced this understanding of popular sovereignty either, however. The UK has no formal constitutional higher law, endorsed by the public, to which Parliament is subordinate. Parliament can make and unmake pretty much any and all laws as it sees fit. Viewed from this angle, the basic constitutional default remains Parliamentary sovereignty.
The Citizens’ Assembly as constitutional convention
What if the UK’s citizens decided they did want to refound their polity on the basis of popular sovereignty? How would they do this? Perhaps there would be a referendum, or series of referendums, on proposals for core constitutional rules? But where would these proposals come from?
One possibility – explored previously by Alan Renwick in his contribution to openDemocracy’s Great Charter Convention - is to use a Citizens’ Assembly, or set of Assemblies. The Citizens’ Assembly is, in other words, a promising model for a constitutional convention (or network of conventions across the regions and nations of the UK) that could deliberate options and make proposals for a new UK constitution. Issues the convention process might cover include a new federal relationship between nations of the UK (without prejudicing future moves towards independence); the government of England within the UK; reform of the UK Parliament’s second chamber; electoral systems for the UK Parliament; and the power of ‘money in politics’ (1). A typical reaction to this suggestion is that the issues are too complex for members of the general public. The UCL Brexit Assembly – along with a growing record of similar experiments with Citizens’ Assemblies – shows that this is not true.
The future of referendums? The ‘PAR’ scheme
In fact, the relevance of the Citizens’ Assembly model arguably goes even further than this.
One question that the Brexit referendum has raised (and also the referendum on Scotland’s independence in 2014) is precisely what role referendums themselves should have in a well-structured political system. Some would say: none at all. But if one accepts the principle of democratic constitutionalism, one must allow for the possibility of popular amendment of the constitution. Arguably this implies a continuing role for referendums. In some polities (e.g., in some states of the USA), this ongoing role is formalised through the Citizens’ Initiative: citizens have the right to petition for a proposal to be put to a direct popular vote and, if they get enough support, it goes to a ballot. (Indeed, in some polities this power is not confined to constitutional amendments.)
An interesting alternative, however, suggested by Graham Smith in an earlier article for openDemocracy, and which I am exploring, is to combine the Citizens’ Initiative with the Citizens’ Assembly. Specifically, imagine that citizens have the right to petition, not for a proposal to be placed on the ballot, but for the setting up of a Citizens’ Assembly to consider an issue. If there is enough popular support, the Assembly is set up and considers the issue using the techniques of carefully structured, balanced deliberation we see in the Brexit Assembly organised by UCL’s Constitution Unit. The Citizens’ Assembly then makes recommendations (if it sees fit).
In a further refinement of this idea we can imagine that the Citizens’ Assembly has the power to put its recommendations to a direct popular vote (as was the case, for example with the Citizens’ Assemblies on electoral reform in British Columbia and Ontario).
Taking these suggestions together, we get the ‘PAR’ model: P for Petition, A for Assembly, and R for Referendum (2).
Indeed one could imagine a system in which politicians have no power to call referendums, but this power lies solely with Citizens’ Assemblies that convene only when there is sufficient popular support to create them. The key difference between this PAR system and the Citizens’ Initiative taken by itself is that nothing gets to a direct vote that has not been thoroughly discussed, under conditions of careful deliberation, by a representative sample of fellow citizens. This is a barrier against the dangers of ‘populism’. Some political scientists in the US, such as John Ferejohn, have argued for PAR as an alternative to the existing initiative mechanism in states such as California.
Citizens’ Assemblies as part of a new system of popular sovereignty
An interesting thought experiment is to consider where we might now be if the UK already had a PAR scheme. I think it quite possible that the UK would have had a referendum on whether to leave the EU. But would the form of the referendum have been the same as that in 2016? David Cameron seems to have given precious little thought to the form of the referendum question and process so confident was he that ‘Remain’ would win. This helped create the situation where an undefined ‘Leave’ option went up against ‘Remain’ – and won in part, perhaps, because it was undefined. My hunch is that a Citizens’ Assembly, deliberating the issue, would have foreseen the drawback with this way of posing the question and would have considered how the referendum process could be structured – perhaps in a staggered way – to test support for Remain against a concrete Leave option. In other words, the much discussed ‘second referendum’ on a specific Brexit deal might have been baked into the process at the outset. This would have made for a more rigorous testing of popular opinion on such a major issue.
Speculative? Yes. But the UK remains in a profound constitutional crisis in multiple ways, and Citizens’ Assemblies have a constructive role to play in helping move though this crisis and in a new political order founded on popular sovereignty. This, in my view, is also one of the lessons of the UCL Brexit Assembly.
(1) Another important article is David Owen’s discussion of how define the ‘people’ for purposes of a constitutional convention. Owen argues that representation should include not only citizens, but non-citizen residents of the UK, and non-resident non-citizens. See Owen’s discussion here
(2) We see something like this model emerging in the Republic of Ireland, although there the Oireachtas (parliament) retains control over when Citizens’ Assemblies are convened, and on what, if anything, goes to a direct vote.