Brexit and the future of Europe: referenda a ‘double-edged sword’ for democracy and rule of law

Ruth Green, IBA Multimedia JournalistMonday 3 February 2020

Research published by the University of Cambridge indicates that the proportion of people dissatisfied with democracy in developed countries worldwide rose to 58 per cent in 2019 – the highest level since records began. As the research notes, in the UK, public satisfaction in democracy ‘plunged during the political stalemate following the EU Referendum.’

Referenda have become an increasingly popular way of deciding issues of national importance. Some countries, like Switzerland, regularly turn to this form of popular vote. Ten referenda were held in the country in 2018 alone, spanning a wide variety of issues from overhauling financial regulation, promoting cycle paths, to whether radio and television fees should be abolished.

In 2018, 66.2 per cent of Swiss voters rejected a proposal to give the country’s laws priority over international law. ‘This was done without explaining what it really means and what the implications really were of the vote, in the same way that Brexit was done,’ says Muižnieks. ‘If it had succeeded, Switzerland’s continued membership in the Council of Europe would have been problematic because they would have proclaimed the priority of their judges over the European Court of Human Rights.’

Muižnieks points to an earlier Swiss referendum in 2009 that led to a nationwide ban on constructing new minarets on mosques, raising concerns about religious tolerance and the ability for referenda to target vulnerable groups in society. ‘[A referendum] does tap into this desire for public participation,’ says Muižnieks. ‘But it’s a double-edged sword and needs to be done in such a way that it doesn’t target vulnerable minorities or lead to misleading political outcomes.’

Caroline de Gruyter is a Council Member of the European Council on Foreign Relations and a correspondent for Dutch newspaper NRC Handelsblad. She agrees that the UK’s referendum on EU membership exposed the problems associated with using direct democracy to decide on divisive issues. ‘Look at Brexit: everybody got hyper-emotional,’ she says. ‘When there’s a lot of social, economic and political friction, the last thing you need is a debate. There’s a need now to unblock completely this type of polarised situation.’

The fallout from that vote and the continued push from some quarters for a second referendum on EU membership has raised questions about whether democracy is being undermined. De Gruyter says the use of citizens’ assemblies – a body of members of the public that convene to discuss an issue before drawing conclusions – could be one way to ensure democracy evolves with the times. Both France and the UK are convening citizens’ assemblies in 2020 to debate their governments’ approach to tackling the climate crisis.

Ireland has already successfully used this mechanism to debate several significant social issues, including the country’s long-standing abortion ban, which was overturned following a referendum in 2018. ‘The Citizens’ Assembly was shown the law as it was,’ says de Gruyter. ‘They studied it and were asked if there was a way to change the law so that most Irish people could live with it. This is a wonderful example of how citizens’ assemblies can work to make sure that the law [works] for the vast majority of Irish situations.’

There has been a groundswell of support for the idea of using these assemblies to resolve political impasses, like Brexit. A trial run took place in Manchester in 2017 involving a sample of 50 people. 25 leave voters, 22 remain voters and three people who did not vote debated the UK’s future trade and immigration relationship with the EU. Although a fully-fledged assembly has not been convened, de Gruyter says these sorts of trials are promising: ‘All these experiments with citizens’ assemblies acknowledge that there is a problem with democracy and seek a solution not in direct democracy, but representative democracy.’

Independent oversight could be one way to ensure that referenda are conducted properly and that the electorate is fully informed of a vote’s implications. ‘Ideally you’d have some kind of institution, like a constitutional court, which would vet the constitutionality of a referendum and the question being posed,’ suggests Muižnieks.

In practice, this may not be so straightforward, as Catalonia’s ongoing battle for independence has shown. In 2017, the Catalan government pushed ahead with an independence referendum despite a ruling by Spain’s Constitutional Court that such a move would be illegal. In October 2019, the country’s Supreme Court sentenced nine Catalan separatist leaders over their roles in the failed secession bid, sparking further public outcry and widespread protests.

Referenda have posed constitutional dilemmas in other countries, including South Africa, says Justice Richard Goldstone, Honorary President of the IBA’s Human Rights Institute. On 6 June 1995, the country’s recently formed Constitutional Court ruled that the death penalty was inconsistent with the country’s Bill of Rights. The then Deputy President FW de Klerk suggested that most South Africans supported the death penalty and he proposed to then President Nelson Mandela that the issue should be decided in a referendum.

Goldstone says Mandela’s response – that any referendum on the death penalty should be accompanied by a referendum on whether white South Africans should be allowed to retain the property they had acquired over the previous 300 years – quickly stopped de Klerk in his tracks. ‘The point that Mandela instinctively recognised was that in a constitutional democracy the constitution is supreme and that even 100 per cent of the electorate is bound by it,’ says Goldstone. ‘Majoritarianism is not democracy. Indeed, the Bill of Rights is there to protect minorities and marginalised groups. The majority hardly needs protection. The rule of law and fundamental human rights should always be protected and especially from the majority.’