The recent events from Great Britain have made everyone question the fundaments of democracy and, even more, the utility of the instruments serving direct democracy. Whether the vote for Brexit represents a failure of democracy and referenda or, on the contrary, a strong proof that the will of the people must always exceed other interests, is still unclear for a vast majority of people across the Globe. 

We invite you to read the following debate and decide for yourselves which side is the most persuasive and convincing. We hope that you will find it just as interesting as we did!

Abiola Azeez

Abiola is a final year law student at the University of Surrey. She is currently a legal assistant at Orban-Perlaki Attorneys at Law (OPL) and Explico, a regional tech consultancy boutique, in Budapest, Hungary. In the past, Abiola has gained experience across London, including a magic circle law firm where she sat with one of the leading partners in corporate law.

Adam Burt

Adam is a third year law student at the University of Surrey. He is currently a legal and regulatory assistant during a professional placement year (thick-sandwich) in Budapest, Hungary, at Orban-Perlaki Attorneys at Law (OPL) and Explico, a regional tech consultancy boutique. Adam has experience in a top 20 London law firm, in addition to a financial referrals boutique, from which he was headhunted to a leading St James’ Place partner practice. He also has some experience in litigation, recently being engaged in advocacy at small claims level in the UK, a case which he closed and won on cross-examination. 

Opening Statement - Abiola

It is not the tool, it is how you use it. One can only judge the usefulness of a tool by how well it fulfils its purpose and for this reason, referenda are viable as democratic vehicles in the 21st century. They do exactly what they are designed to do; offer a direct democratic way to make fundamental policy decisions. Despite this, referenda have a bad name within political and constitutional theory. They are widely considered to be easily manipulated by political elites and incapable of fostering the meaningful deliberation of citizens. Rather than an asset to democratic decision-making, referenda are often perceived as a threat to a healthy constitutional system. 

The concept of a referendum was developed in Switzerland in the mid-nineteenth century to provide a replacement for the traditional assembly of all voters to make fundamental policy decisions. It was introduced as a tool to assist representative government. This was a standard constitutional device initiated by the voters or their representatives under specific conditions, in certain set ways and conducted in accordance with specific ground rules. To this day, Switzerland remains the major example of regular use of the referendum, where voting occurs least four times per annum. Its political system is well known for being the most open in the world to the celebration of referendums and public consultations. Assessing the viability of referendums from this perspective would only birth positive results, however after the Brexit, referenda came under increased scrutiny. 

The majority of the criticisms revolve around the ways in which those in positions of power (such as the ex- UK Prime Minister David Cameron) use, or rather misuse the purpose of a referendum. Often, the advantages of a referendum are buried.  Direct democracy is undoubtedly one of the main positive outcomes of a referendum. Voters speak in unity, deciding on an issue for themselves, rather than through the mediation of politicians. What could be more democratic? Political equality is confirmed as citizens come together in a collective expression of popular sovereignty. Moreover, it represents the acknowledgement by the political establishment that the people of Great Britain have the right to decide how they are to be represented. 

Many people are disengaged with politics as it is often portrayed as something which is exclusive to the highly educated, with remain campaigners claiming that the Brexit was a concept so intricate that those in favour of Brexit were too ‘stupid’ to understand it. Referenda generate interest and involvement in public policy among the masses; it is debatable whether 30 million people would have been as interested in Brexit had there not been a referendum. Everyone (who is of age) is invited to vote in a referendum regardless of social class, race or any other discriminatory factor – something remain campaigners, particularly the youth, seem to disagree with. Referenda are a good illustration of an impartial strategy to encourage the masses to re-engage with politics. 

Aside from democracy, those within a political party can also benefit from referenda. On many occasions a political party will be split for numerous reasons however, referenda can be used to resolve such political problems. In particular for incumbent governments, holding a referendum can help reach a solution on the issue without splitting the party. Although, in theory this indirectly relates to democracy since the general public have an input in the matter, the necessity of a particular referendum could simply be to reach a concrete decision. The world of politics has changed vastly over time, yet the referenda have survived. It is clear that referenda are viable as democratic vehicles in the 21st century.   

 

 

Opening Statement - Adam

Referenda are the sole vehicle in democratic decision making that can override the will of the executive, legislature, judiciary, and simultaneously disregard national interest; they are as dangerous as they are enticing. The Brexit referendum has epitomised not only the perils of such a device, but how it can offer false comfort to a head of state and the public in tough situations. In the Union alone, there are now (on average) eight referenda a year, a fourfold increase from the late 70’s. In a world were such devices are becoming commonplace, the question of their viability must be asked, and indeed, the answer is not so comforting.

Let’s take the Brexit as an example. This is a debate so multifaceted that no individual can hope to know and understand all the constituting factors, making a guarantee of the best outcome impossible. One could not expect David Cameron to perform open heart surgery, or Angela Merkel to fix a boiler, so neither should doctors and plumbers be asked to give an informed opinion on the European Union and its benefit (or lack thereof) to Britain. The great British public elects such representatives to make these decisions because they do not, regardless of intelligence or ability, have the requisite expertise. Representative democracy is, by its very nature, a tertiary industry. 

Which brings us to the next big question, why have a referendum at all? After all, the idea of Apple or Samsung using shareholders to design mobile phones is somewhat farcical.  In the case of Brexit, we have to recall the 2015 general elections. David Cameron needed to appease the growing Euroscepticism within the Conservative party (due in large part to the rise of UKIP). He needed votes. And so he made the biggest gamble of his career; the promise of an EU exit referendum. This does not sound like the symbol of democracy referenda are so often portrayed as, this sounds like a means to an end. 

We see more forthright examples of voter manipulation elsewhere in Europe. Viktor Orban has recently proposed a referendum in Hungary; “Do you want to allow the European Union to mandate the resettlement of non-Hungarian citizens to Hungary without the approval of the National Assembly?” The answer to which will of course be, a resounding no. In one stroke Orban has garnered more public support in an increasingly populist nation for “standing up to the EU”, and acquired a “democratic” trump card to brandish in Brussels. No risk, no democracy involved. And so, that which should be a hallmark of democracy becomes a mechanism which politicians apply to, in a somewhat oxymoronic fashion, subvert democracy. If referenda are to be placed upon the pedestal of “pure democracy”, they should be a beacon of constitutional decorum, a concept all too easily corrupted by politicians. Such manipulation of the plebiscite is common, something that led the late Margaret Thatcher to describe referenda as “a device for dictators and demagogues”.

So, if it were not difficult enough for the public to make decisions they are far from qualified to make, they must also navigate a political minefield of manipulation and corruption. The cold hard truth is this; the public as a whole are not qualified to make decisions of such complexity and national importance as referenda require. Using the Brexit referendum as an example, the individual needs a decent knowledge of the economics and sociology of trade and immigration, the impact and politics of centralized regulation and to have a basic historical background in nationalism. That is the very minimum, something that one could contest, fewer than 5% of the voting population had. After all, Google searches of the question “what is the EU” tripled on the day the exit vote was announced, not so comforting indeed.

 

 

 

Abiola argues that as long as referenda are able to fulfil their purpose they are a viable democratic tool, pointing out that this is the most important criteria we should take into consideration when deciding this. Also, as long as we have examples of countries which use them successfully, and referenda tend to increase the public interest regarding important state problems which will affect them, we do not need to doubt their importance and viability. However, Adam argues that politics and important state decisions are not topics everyone has expertise in, this being the main reason why we elect specialised people to represent our interests. Moreover, recent history shows us that referenda are constantly being misused by politicians, with the sole purpose of serving their personal interest. 

 

Rebuttal - Abiola

Analysing the arguments against the viability of referenda as democratic tools in the 21st century has further highlighted the fact that it is not the tool, it is how you use it. 

The first main argument proposed is that the general public does not possess the requisite expertise to make such a complex decision. Imagine a scale, with 1 being low and 10 being high, the complexity of the Brexit referendum would be somewhere between 7 and 10 – highly complex. In comparison, Switzerland held a referendum in 1993 that proposed an initiative for a free work day which would also be a national holiday. It is clear that on the aforementioned scale, this referendum is unlikely to be rated higher than a 3. These examples are on opposite ends of the scale, neither of which provide an accurate depiction of the viability of referenda as democratic vehicles. A more appropriate measure would be an average of the two; a referendum which is reasonably easy to digest for the general public and one whereby the result does not determine the future of the country in question. It is unconvincing that the Brexit demonstrated much about the referenda because the situation was extreme and not one which occurs regularly. 

Similarly to the concept of complexity, the definition of a qualified person is not black and white; there are many shades of grey. Besides, what constitutes requisite expertise? A self-taught politics student could be more qualified, on paper, than one who holds a degree. Yes, there is a reason why the public elects representatives to make such decisions for them; however this does not undermine their right to democracy. Such representatives may appear to be highly qualified in terms of education and experience, nevertheless; the mere existence of the Brexit referendum is enough to argue that those with the ‘right’ expertise also make mistakes. 

Suppose the outcome of the referendum was for the UK to remain, would Viviane Reding have tweeted “Britons are too ignorant to vote on membership of the EU” or would the referendum have been described as a debate too complex to understand? No. This demonstrates that the referenda are, in fact, not the problem, until the outcome is unexpected. Referenda are capable of being useful even during times when they are being misused. In response to the statement that the referenda appeared to be a means to an end for David Cameron, this does not reduce their viability. Regardless of the motive, a referendum still results in direct democracy and this cannot be undermined. In light of the Brexit, it is clear that a referendum is a strong tool which should not be purposely misused as the consequences could be grave. 

The example of Victor Orban’s use of referenda does indeed illustrate how the referenda can be manipulated. As Martin Kettle expressed in The Guardian, ‘if referendums are the answer, maybe we are asking the wrong question’.  The basic structure of the referenda provides decision makers with the platform to pose fair, intelligible and appropriate questions. The tool itself is in fact a beacon of constitutional decorum until it is misused. This often gives rise to arguments which condone the use of the referenda. As mentioned in the opening statement, Switzerland have successfully used the referenda for decades, so why can’t everyone else? Perhaps there should be more focus on the people who are placed in positions of power, after all Hitler used the referenda. 

Switzerland continues to demonstrate that if the tool is fit for purpose so long as it is used appropriately. Referenda should not be used as a scapegoat for poor political decisions or unexpected outcomes. 

 

Rebuttal - Adam

The opening two sentences in the opposition statement are particularly striking; being contradictory in nature and in fact illustrative of the ironic failings of referenda. Firstly, if the quality and effectiveness of a tool is irrelevant, as the opening sentence suggests, then one does not need to judge its usefulness. If referenda are indeed still effective in some way, their application grievously harms their reputation, as illustrated by the recent referendums in the UK and Hungary. Moreover, one could argue that the virtuous use of a tool does not hide the fact it is faulty. 

The statement that referenda are a “tool to assist representative government” is conceptually oxymoronic. The very purpose of representative government is to represent their constituents, something disregarded in the case of referenda. If a government is poorly representing the public, they are voted out. That is democracy, not some age old device that governments only use for political leverage. On the topic of referenda, former Conservative MP, governor of Hong Kong and now chancellor of The University of Oxford states, “governments only concede them when governments are weak”. Extensive research into historical referenda will not show otherwise, democracy is the last thing on the mind of those implementing such devices.

The “advantages of a referendum are buried” by their misuse, of that, there is no dispute. However, referenda are too easy to abuse, making them flawed from yet another angle. There is nothing positive about direct democracy where the question is so complex, manipulated or fragmented, that any virtuous result arises purely by luck. Perhaps there is a reason “referenda have a bad name”.

Democracy is often held synonymous with fairness, and using such an appeal to democracy fallacy in order to accredit referenda makes a mockery of the synonym because referenda are not fair. In fact, they are incredibly unfair, how does the “losing” 48% of the UK feel in light of the Brexit? How does the Scottish public feel? Like they have been treated unfairly, which is exactly the case. Moreover, the opposition statement goes so far as to say referenda are an acknowledgment that the people have a right to decide how they are represented, which they do, in General Elections.

The ideology that politics is exclusive to the highly educated belittles the general public involvement and in turn, democracy. The argument does not imply stupidity or focus on education, but expertise is certainly an issue. A decision so complex and with such vast ramifications requires decades of experience from a group of individuals to make, criteria that referenda can never fulfil. In the case of the UK, the nation certainly engaged with politics and with the referendum (71.8% turnout), but too many democratic sacrifices were made, a high price for public involvement.

The final opposing argument focuses on the benefit referenda can have in unifying a political party. This is a good point, in fact, such a purpose was the very reason David Cameron called for the Brexit Referendum in the first place. However, it only exemplifies one of the key lines of anti-plebiscite debate; referenda are only applied where a party is weak or has some other agenda, democracy being last on the list. There is, after all, a reason why both Hitler and Mussolini’s rise to power were preceded by plebiscitary “democracy”.

      

 

 

 

 

At this point, Abiola points out that extreme example like Brexit, where everyone had a ‘correct’ outcome in mind, are not enough to prove that referenda are not viable tools. Moreover, it is hard to say who has the ‘right’ expertise to be part of such a vote. She eventually consolidates her idea that the tool itself does not have flaws, but how certain individuals use it is the problem. Adam, on the contrary, points out that just because a tool is sometimes used correctly is not enough to prove that the tool itself is not faulty. Democracy is built on the concept of representation, this being the only fair and effective way for it to work properly. Not only referenda are used for serving politicians or their parties, but they can never offer an informed and well-documented response to complicated situations like Brexit.

I hoped this debate was a pleasure to read, and the conclusions will help you form your own opinion!

 

Conclusions - Abiola

There are plausible arguments to suggest that referenda are not viable as democratic vehicles in the 21st century but they do not invalidate those in the opening statement. The ideology that the emphasis should not be placed on the tool, but instead how it is used, still stands. 

As stated earlier, countries such as Switzerland have experienced much success with the referenda, implying that the UK and other countries could also follow suit. Moreover, there are only two options; direct democracy or representative democracy. Under direct democracy, no other model comes close let alone competes with the referenda. It is easy to offer criticism but when there is no alternative, such criticism is almost void. 

Those in positions of power have the ability to change how referenda are used and this would have a knock on effect on how they are perceived. In summary, the viability of the referenda is highly dependent on how it is used. It is not the tool, it is how you use it. 

Conclusions - Adam

Amongst the arguments in favour of referenda, the “pure democracy” stance is perhaps the strongest. On the smallest and most basic scale, a public vote is the most democratic manner in which a decision can be made. Nevertheless, as illustrated in rebuttal, this appeal to “pure democracy” is also the referendum’s downfall; it is now a tool used by politicians to subvert the very principle it stands for. Referenda can certainly create unity within a party, but this is not their purpose, therefore such an example fails to lend verisimilitude to the concept. 

It has been demonstrated in this debate that, whilst there is much history to referenda, every positive has a twofold negative caveat in the era we now live in. Moreover and most importantly, no matter if referenda are used fairly and effectively in some cases (such as Switzerland), the manner in which they are abused in many renders them non-viable in the 21st century. The sparse redeeming factors of referenda simply do not outweigh the downsides, which are numerous and in many cases, severe.

 

 

Disclaimer: The arguments presented in this debate do not represent the opinions of the two authors. 

This debate has been published in Lawyr.it Vol. 4 Ed. 3. All references used can be found at the end of that issue.