Misreferendum (in progress)

Misreferendum

• Origins of the Referendum

Before discussing what I mean by a misreferendum it will be useful to look at how earlier critics viewed the use of the referendum policy by governments. A book which I found extremely interesting is one Against the Referendum by Jane T. Stoddart and an introduction by W. Robertson Nicoll. In her book Stoddart examines the origins of the referendum in Switzerland.  (I have quoted extensively from her book below) She outlines the types of referendum (facultative or optional and the obligatory) and the occasions that the referendum was used. Her findings make for interesting reading. Firstly the political and constitutional set-up of Switzerland is very different from the United Kingdom. It is a federal republic made up of cantons which have greater political autonomy than the counties or shires. It has a written constitution, a very important fact. Another feature of the Swiss model was the people initiative, i.e. that the initiative for the referendums are extraparliamentary, initiated by the people but in a constitutional framework. Analysts at the time could see that the referendum was well-suited to smaller political entities where the electorate were well versed with civic duties. In other words they understood very well the nature and remit of what is a referendum. Another feature of Switzerland at the time, was that it had no real “party system”.  A series of very important points made also were that:

• A Swiss government does not resign when its measures are voted down by the people.
• No Parliamentary dissolution can be forced on by the result of a Referendum.
• No leader in either House has anything to fear from an adverse verdict of the people.
• No private member receives in this way a notice to quit.

In addition to this, the species of referendum and their import is very different from those found elsewhere: “The problems put before the Swiss voters are relatively small and easy.”

When the eminent constitutional historian Dicey looked at the differences between the Swiss model and how it might be applied to Britain he found it wanting in many areas.

• There is no written constitution
• The issues put forward in UK referendums are complex
• The referendum is used often to settle “deadlock” either between the parties or internal party problems
• There is a party system in the UK

• Mistrial and Misreferendum the similarilities.

The above will form the basis of my argument that the recent referendum should be judged a misreferendum, on many grounds. But before elaborating on this, let us consider what might be the legal challenge to the referendum as it was conducted. It is too late some might argue as the referendum has been executed, but the actual consequence (i.e. leaving the EU) has yet to be carried out. In some ways the referendum has similarities to a trial. We hear from those in favour of X and those against Y, and the electorate are the jury. Here is an abstract from the Boulder County Association website on the essentials of a mistrial:

A declaration of a mistrial is an order that terminates a trial before a verdict is rendered. A mistrial may be granted upon motion of the prosecutor, plaintiff or defense counsel, or may be sua sponte (i.e., by the court). The trial court has discretion to declare a mistrial at any point during the trial if it appears that because of irregularities or errors in the proceeding either party will not receive a fair trial. Generally, the grounds for a mistrial are based upon some prejudicial misconduct by an attorney, a witness or a juror, or upon some other problem in the trial that would invariably cause a reversal on appeal.

Now here I think we might dwell on what is meant by “prejudicial misconduct” and its relationship to the referendum. We might also look at “Abuse of Process” in the fairness of a trial. Here according to the Crown Prosecution Service they state:

Discretion to stay proceedings

The leading case on the application of abuse of process remains Bennett v Horseferry Magistrates' Court (above). This case confirmed that an abuse of process justifying the stay of a prosecution could arise in the following circumstances:

1. where it would be impossible to give the accused a fair trial; or
2. where it would amount to a misuse/manipulation of process because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.

Let us look at the nature of a referendum, in its simplest form. Suppose that the people are being asked whether the country should grow apples instead of pears. Those in favour of pears will use scientific evidence to persuade the electorate and likewise the apple supporters would find scientific and economic evidence to support their case. Now in this referendum suppose that the evidence provided by the apple supporters was false and that if this evidence were to come to light in a second referendum, then we might argue that the referendum was equivalent to a mistrial in so much as the “attorney or lawyer” acted unfairly which constitutes “prejudicial misconduct”. In this example with pears and apples, which is very simple as in the Swiss referendum one can see immediately the problem, and undoubtedly the reasonable woman or man would see this. We can I believe use this to explore the problem of the referendum that led to the so called Brexit.

• The 2016 UK Referendum

In the 2016 UK referendum the electorate were asked whether they wanted to remain in the EU or leave. This would seem on the surface to be a very simple question in the same league as asking whether you want the UK to grow pears or apples. But obviously it is not as simple as that. Firstly using the growing pear trees we must look to the time factor. It takes six years or so. In the case of leaving the EU there is forty years of legislation to sort out. This means that the formal act of leaving the union would take years to process. On top of this when we grow pear trees we must think of fertilizers and lots of other factors. In addition to the 40 years of legislation regarding the EU there is the fact the UK would have to renegotiate its trade agreements with the EU member states and the 50 non EU member states that it trades through the offices of the EU. Was this all made apparent to the electorate? Probably it was. Is it complex? Yes it is very complex and it needs time to make sure the electorate understand this. According to many sources not only did the electorate have a vague idea about the EU itself, but the majority were not clueless about the economic and cultural importance of the EU and certainly very ignorant of the consequences. This is an important fact in the argument that the referendum was indeed a misreferendum. On top of this it was very apparent and this was made plain, the referendum was very much connected to a party leadership struggle. So:

1. The referendum was complex
2. The electorate were uninformed about the issues
3. The referendum was seen as a party leadership struggle and:
4. A vote of confidence in the current government

We can see straight away that the above is the polar opposite of the Swiss model, and one can see how problematic it is. Indeed the referendum as it was presented exposed itself to anti-democratic forces.

If we consider 2. The electorate were uninformed about issues. Who besides the advocates of remain or leave are duty bound to help inform people? The press. Here we can see that leaving aside a few newspapers, the majority of British newspapers and broadcasters failed to provide factual content that would help the electorate make up their mind. Indeed the majority can be said to have acted prejudicially. In other words broken their own standards of conduct, i.e. a case of “prejudicial misconduct.”

1. The Unconstitutionality of the Referendum.

Now when we look at the referendum held recently, we see several constitutional issues that help persuade us that a second referendum be held. The purpose of the referendum was not expressly to test the opinion of the British citizens regarding the membership of the EU, but as a vote of confidence in the Prime Minister and his government against the challenges of his own backbenchers and UKIP. It then signalled to several the opportunity for a kind of coup d’état. Very quickly we saw that the question of whether to remain or leave the EU became secondary to other issues. What were these issues?

1. Immigration
2. Unemployment and lack of investment in deprived areas.
3. Loss of UK sovereignty

The first two could be said to be a matter of UK domestic policy, because other countries within the EU had border controls in place. Much of the problem stemmed from the prior demand for cheap labour in the construction and retail industries as well as the NHS and care services. What was apparent in the referendum that the remain argument was weakened by the political infighting of the Conservatives. The referendum was being used to settle “deadlock” either between the parties or internal party problems. This had a deleterious impact on the case for remaining which was seized upon by the UKIP party. Whilst the government and the civil service as well as the majority of the academics tried to present a case for remaining, they were challenged by the leave campaigners who gave the public the counter evidence. Again if we were to use the analogy of the pears and apples referendum, we could characterize it by saying that the government had the agricultural scientists and the agronomists on their side, while the opposition had postfactual evidence. To sweeten their argument in the manner of the days of the rotten boroughs the leave campaign made promises of using monies that would be available if the UK left. They promised sums of money for the NHS, etc. They went as far as to quote the amount of the sums. Not only did they throughout the campaign issue untruths, but they also attempted what in other contexts would be termed bribery. If you vote leave I will give you X. Since this formed a significant factor in moving people even in the erstwhile remain constituencies to vote leave, one must look at it seriously. Not only was this offer made by the leave campaign it became the bedrock of editorials in many of the tabloids and broadsheets. In other words the public were being duped not only by the leave campaign, but by a press which was overwhelmingly supportive for their own interests against remaining. If the postfactual claims in combination with the offer of money for the NHS were not made it is very conceivable that the remain campaigners would have won. If this were a criminal trial one would argue for a mistrial on the grounds of unfairness and prejudicial misconduct. As it is a referendum one would argue that it is a misreferendum because the referendum was complex, the prime minister offered to resign (a vote of confidence should not be part of the referendum), the parties were in deadlock, the public were woefully uninformed, and because of the massive prejudicial misconduct of the leave campaign including Mr. Boris Johnson and Nigel Farage, both of whom should be subject to a parliamentary enquiry, and because this referendum undermined the confidence in the due process of the people’s initiative.