Much has been said and written about democracy and democratic will recently. In the past two years in the UK, we have had a General Election and an EU Referendum. Both were, in different ways and for different purposes, an expression of ‘the will of the people’. Or were they? Democracy is a strange thing; and a Parliamentary democracy is stranger still.
The General Election of 2015 elected 650 Members of Parliament. Of the ‘British people’ as a whole, only 69% were eligible to vote, and of those only 66% chose to do so. Of those who voted, only 37% voted for the party that formed a Government. This expression of the ‘will of the people’ therefore gave us the make-up of the 650 members of the House of Commons. Under our constitution and Parliamentary democracy, it resulted in a majority political party voted for by 37% of those who did vote, 25% of those who could have voted, and 17% of the population – and whose leader (since changed with no further expression of ‘the will of the people’) is entitled to form a government. Democracy is a strange thing.
Then in June 2016, we had the EU Referendum – a supposedly simple ‘in/out’ vote. Similarly, of the 71% of the population eligible to vote, only 72% of them chose to do so. Of those who did vote, 52% wanted to leave the EU. Thus, the conclusion of a democratic process is that 37% of those who could have voted, and only 27% of the population (‘the British people’), expressed a wish to leave. To describe the votes of 27% of the population as an expression of ‘the will of the people’ is a stretch, at best. It was more accurately the wish of a majority of those who could, and then chose to, vote. Eliding a 37% voting majority into ‘the will of the people’ is a convenient but arguably loose use of language. Democracy is a strange thing.
So, in accordance with our constitutional legislation, custom and practice, we have two recent expressions of ‘the will of the people’: one gave us the current composition of the House of Commons and a government; and the other gave that government and our Parliamentarians an intention that the UK should leave the EU.
More recently, we have the decision of the Supreme Court (in Miller v. Secretary of State for Exiting the EU) that the power to invoke Article 50 of the Treaty of European Union and therefore formally start the UK’s exit lies with Parliament rather than through the exercise of prerogative power by the Prime Minister/Secretary of State. And there also lies the fear and conundrum of Parliamentary democracy. The ‘will of the people’ as expressed in the 2016 Referendum must be carried through by a House of Commons as elected by the ‘will of the people’ in 2015 (along with an unelected House of Lords). The outcome of the General Election did not arise from a binary choice; it created a body of 650 representatives whose duty is to use their best endeavours to represent the interests of all of their constituents and not simply of those who voted for them. That includes the 35% of voters who expressed a wish not to leave the EU, as well as the 28% of voters who did not express any opinion at all (not to mention the further 29% of the population who were not allowed to) – a mere 48 million citizens. It would be politically dangerous to appear to discount or marginalise the views of those in these groups (as the Scots are now seeking to point out – though perhaps they should be careful what they wish for … because democracy is a strange thing).
It is not surprising that there has been a concern that requiring Parliamentary approval to trigger the Brexit process might well have led those elected and unelected representatives to ‘frustrate the will’ of the 17 million who expressed a preference to leave … because democracy is a strange thing, and a Parliamentary democracy is stranger still.
But the concern has not (so far) materialised, and Parliament has made its political judgement about firing the starting pistol. Exercising such judgement is, after all, what the ‘will of the people’ elected Members of Parliament to do in 2015 – albeit now with the benefit of the subsequent ‘advice’ of the 51% of the population who also voted in the Referendum.
I make these observations not to disagree with the outcomes of democratic processes, or to seek to undermine their democratic legitimacy – and certainly not to support Winston Churchill’s point that “the best argument against democracy is a five-minute conversation with the average voter”. Rather, I think we should recognise the partial and often fragile, fleeting and febrile nature of the various expressions of ‘the will of the people’: we should not be tempted to cast them as inviolable or incontrovertible truths. After all, democracy allows the people to change their minds – and their governments – over time. And so, although democracy might well be a strange thing and even perhaps (to return to Churchill) the worst form of government, it is still as he says better than “all those other forms that have been tried from time to time”! We should respect and cherish it accordingly.
A regulatory postscript
The reaction of some politicians and mainstream media to the High Court and Supreme Court judgements in Miller has clearly questioned the independence and integrity of judges and the judicial process. Given that Government ministers have a duty under section 3 of the Constitutional Reform Act 2005 to uphold the independence of the judiciary (and, indeed, in the case of the Lord Chancellor, also to defend that independence), the combination of what has been said and not said has inevitably raised doubts about the commitment of political and media influences and influencers to judicial independence and, by necessary implication, to the rule of law. Paradoxically, the very exercise of the rule of law and of judicial independence has led some to question and undermine these fundamental underpinnings of our democratic constitution.
In these circumstances, the recent call by the Legal Services Board in its paper on the need for legislative reform of legal services regulation – and in particular for a stronger separation and independence of that regulation from government – becomes more relevant and pressing. This position was also echoed by the Competition and Markets Authority in its market study (para 5.145; and more from me on this report here). In a post-Brexit world, the international position and competitiveness of the UK’s legal services need to remain assured; and the adoption of English law as a governing law of choice, and the use of English courts and judges for dispute resolution, are vital for a successful, independent future. Without true respect for the rule of law, as well as the recognised independence of legal advice, lawyers and the judiciary from government and political influence, that global position cannot be secure.
Far from Brexit being a reason for postponing further regulatory reform (as some have suggested), recent events have further emphasised how necessary and pressing the need for reform has become.