Other democracies can teach UK lessons for new referendum

by Jonah Mendelsohn | 12.07.2019

A confirmatory referendum – a People’s Vote – is the only democratic means to resolve the Brexit crisis. That argument has now been made many times, most recently in a letter by over 400 lawyers in the Guardian.

The 2016 referendum, which was non-binding, presented a binary choice between leaving and remaining in the EU. But the reality is that there are many different “leave” options. A confirmatory vote would give people the choice between staying in the EU and an “implementable” leave option. This would represent a continuation of the democratic process – whereas ploughing on with an outcome nobody voted for would betray democracy.

International guidelines

Referendums are used infrequently in the UK, and a confirmatory ballot has never taken place before. So, what lessons can we learn from other countries which have held confirmatory votes in the past?

It is first worth looking at international guidelines already out there. In 2018, the Council of Europe (confusingly not an EU institution) had its Venice Commission put together a practical code of good practice on how referendums could be used to enhance democracy. This code clearly says that a referendum can either pose a general question (as in the 2016 vote) or give voters a choice between specific constitutional or legislative texts.

What’s more, the code says that if a general question is posed then the result cannot be legally binding unless it is clear how that result will be implemented. In other words, it is designed to avoid the mess the UK has gotten itself into. The guidelines are also very keen on a second confirmatory referendum following a general question.

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The Swiss model

In 2018, Switzerland held a confirmatory vote on a 2016 referendum which asked voters whether cohabiting partners and married couples should pay the same amount of tax. The Swiss Supreme Court voided the 2016 result and ordered another vote on the grounds of misinformation about how many married couples paid more tax than cohabiting couples. 

There are clear parallels with Brexiter misinformation about £350 million a week for the NHS or 80 million Turkish people poised to move to the UK if we stayed in the EU.

In this case, the Swiss political system – including the judiciary – ensured that a referendum could not result in legal or constitutional changes without proper democratic safeguards. The UK’s Brexit vote seems to be an even more egregious example: not only was misinformation present; not only was the question posed in general terms; but the winning side also broke campaign spending laws. 

This isn’t a call for the UK to adopt the Swiss constitutional model of direct democracy, far from it. The UK is a parliamentary democracy and referendums should be used sparingly and with care. But there are lessons to be learned from the sophisticated way other democracies use referendums – certainly on how to unlock the Brexit deadlock now but also how to avoid a similar quagmire if politicians call further referendums in future.

For example, referendums are only binding in Switzerland where the majority of the country’s regions vote in a particular way. Similarly, the Canadian provinces of Ontario and British Columbia  required a super-majority of 60% to go ahead with implementing the results of referendums that concern sensitive matters of electoral reform. The Venice Commission also recommends that minorities, such as the EU citizens living in the UK in 2016, are given a vote in a referendum that has the potential to affect their legal status. 

The UK has a long way to go to reform the political and constitutional failures exposed by the 2016 referendum. But first we need to break this Brexit impasse. Brexit has become a cul-de-sac: there’s only one way to get out and that’s the way we came in. We got into this via a referendum and now a confirmatory vote is the only democratic way to move on.

Edited by Luke Lythgoe

2 Responses to “Other democracies can teach UK lessons for new referendum”

  • Nothing here that the UK lawmakers at the time didn’t know about, then. The biggest stupidity was that those who set up the 2016 referendum never considered that a) the vote could run against their expectations, as the result of which they were caught Completely unprepared and had absolutely no plan to deal with the situation, b) that many resident foreign nationals, who lived for decades in the UK, should have had the right to vote. They were considered good enough to pay tax and social contributions and like UK citizens, the great majority contributed to keep UK society moving and c) the UK completely overlooked the Irish and Gibraltar issues, of which notably the Irish matter derailed Brexit as a working proposal. Imbecility, as could have been foreseen, rules thereafter. And what when the Brexit hordes find that visiting North of the border gets more involved, as they do not appear to notice that when Scotland, as is getting quite clear by now, votes itself out of the UK there will be a hard border between Scotland and England. Really wonder how future commentators will describe this period.

  • “…how future commentators will describe this period”.

    = When the lunatics finally took over the asylum.

    We had a referendum in 1974 and then again in 2016. Yet any suggestion of a third referendum is shouted down as being “undemocratic”. Yet by this token, the 2016 referendum was evidently undemocratic and if so, must be declared void. Is this likely to happen ? Of course not, any group of MPs suggesting such a thing would be deselected faster than you can say “knife”, and if one thing about this whole sorry mess is obvious, it is that MPs are, first and foremost, interested only in their own careers. Forget a new (apparently undemocratic) referendum – just cancel Article 50 in the interests of national security and be done with it and endure the flak.