Recent days have seen ferocious attacks against the roles of both judges and parliamentarians in our democratic system. Alan Renwick and Meg Russell of the UCL Constitution Unit write that this assault is just the latest in a series of signs that the quality of our democracy is under threat. In light of this they argue for concerted efforts to defend that democracy: by pushing back hard against immediate challenges to the rule of law, resisting the lures of populism, and listening to those tempted by populist and anti-political rhetoric.
Thursday’s High Court ruling on Article 50 (assuming it is confirmed by the Supreme Court), means no more than that the government cannot legally begin formal Brexit negotiations without parliament’s consent. The judges did not question the validity of the referendum result or try to block the UK’s withdrawal from the EU – they just clarified the law. Parliament – as demonstrated by many MPs’ reactions – will almost certainly feel politically bound to respect the referendum outcome and authorise the Article 50 trigger.
Yet, as is now well known, the judgement has unleashed a wave of vitriol from parts of the press, from some politicians, and even from certain government ministers. The Daily Mail labelled the judges who delivered the ruling as ‘enemies of the people’. The Telegraph presented the issue as one of ‘judges vs the people’. Nigel Farage talks of a ‘great Brexit betrayal’. The Communities Secretary, Sajid Javid, referred to the case as ‘a clear attempt to frustrate the will of the British people’. Hearing such reactions, many ordinary citizens are understandably outraged by what they perceive as the scheming duplicity of an arrogant governing elite.
This gross overreaction is deeply worrying and potentially dangerous. We tend to presume that the democratic system in the UK is rock solid. Yet the democracy indices produced by the Economist Intelligence Unit and Freedom House have charted declining democratic quality in recent years in many long-standing democratic countries, including Austria, Belgium, and the Netherlands. In the United States, commentators and senior political scientists are greatly troubled by how Donald Trump’s behaviour and rhetoric of rigged elections could weaken the foundations of the democratic system. Democracy faces similar challenges here in the UK too. In light of this, we need to cool the passions and encourage a national conversation about what democracy is and what sustains it.
Populism is not democracy
The conception of democracy that has taken hold of our national discourse over recent months is deeply populist: many public figures, it seems, are unwilling to question the mantra that we must ‘trust the people’. According to the populist vision, ‘the people’ have a crystallised view, and democracy requires quite simply that this view should be turned into reality. The ‘elite’ or the ‘establishment’ are likely to try to subvert the popular will, and they therefore have to be resisted at every turn.
But this populist vision misunderstands the nature of society and the essence of collective decision-making. ‘The people’ are never united: we have a whole variety of different values, interests, and perspectives. Not one of us is united even within ourselves: each of us has a range of goals and ideals that are sometimes in competition, such that we frequently change our views on complex issues as a result of discussion, or because different angles come to the fore. It is all too easy for demagogues to deceive large swaths of the electorate – a phenomenon that can happen among supposedly sophisticated urbanistas just as it can among allegedly ignorant provincials, as some of the memes that circulate on educated Facebook feeds attest.
In our collective decision-making, the ideal that we should be striving towards is not that the majority should dictate its will to the minority, but that we build solutions that work – so far as possible – for everyone. That is not easy. Importantly, it means that none of us will ever get everything that we want. But that is an inevitable consequence of living together. Genuine democrats speak their minds and hold true to their principles, but they also listen to others and acknowledge the necessity of compromise – both concepts that are anathema to the populist.
Democracy depends upon the rule of law
What do these abstract democratic ideals imply about concrete democratic practice? One core point is the centrality of respect for the rule of law. Democracy in a complex modern society cannot exist without the rule of law. Democracies make decisions, which are then enshrined in law so that they are plain for all to see. If the rules that have been decided democratically are ignored, we no longer have democratic decision-making. If the government is allowed to do what it wants without respecting the law, it can all too easily subvert the checks and balances that keep the democratic arena pluralistic and healthy: witness the situation today in Hungary, where a government of populist demagogues has stacked the courts, trampled on the freedom of the press, and destroyed every independent power centre.
It is perfectly fair to ask questions about any particular court decision. It is also reasonable to consider whether the judiciary ought to be more representative of society or whether we have got the balance between the courts and the elected branches of government right. But to spread gross misrepresentations of judges as enemies of the people is deeply irresponsible and risks causing serious damage to our democratic structure.
Democracy requires debate that is thoughtful and inclusive
The democratic ideals set out above imply also that the essence of democracy lies not just in voting, but in discussion: a decision is only as democratic as the deliberation that produces it. And quality deliberation has two essential features. First, it is thoughtful: people have accurate information about the issues; they reflect carefully upon the validity of the various arguments; they consider how to add up the different points into an overall decision. Second, it is inclusive: everyone is listened to with respect and everyone listens respectfully. This does not mean that people should be dispassionate, but that we should try to avoid closing our ears to the passions of others.
Ideal deliberation is difficult – perhaps impossible – to achieve. But we can certainly do better than we have been managing of late. The referendum debate was intense: the quantity of media coverage was exceptional, and turnout was higher than at any other UK-wide vote since 1992. But no one could say it scored well in terms of thoughtfulness: both campaigns pumped out claims that were misleading or downright false; parts of the press became campaign rags rather than newspapers devoted to serious reporting; the broadcasters, who were bound to maintain impartiality, often resorted to ‘seesaw’ coverage of the ‘Leavers say this but Remainers say that’ variety. Inclusiveness was also in short supply: though a wide range of views were voiced, there was a paucity of genuine listening.
Given these limitations, June’s referendum vote cannot be viewed as a product of perfect democratic decision-making. In practice, it has to be respected: we are where we are, and expectations on the binding quality of the vote have been raised so high that to do otherwise would be to pour fuel on a raging populist fire. But, from this point on, we should be aiming for better democratic mechanisms. That means two things.
First, in the present, we should work to make the process of Brexit much more considered than was the referendum. Ideally, this should include ordinary citizens directly – through, perhaps, a citizens’ assembly that could shadow the progress of the negotiations in Brussels. At the very least, it must include a central role for parliament, containing our democratically elected representatives. The rhetoric we have seen in the last few days has been not only anti-judge, but also anti-parliament. Yet parliament is our national forum for serious democratic discussion. Of course, our politicians are, like any group of people, far from perfect. But the prevailing anti-politician populism ignores the wealth of important and effective work done by parliament – for example, in select committees – to hold government to account and scrutinise policy. The referendum determined that the UK will leave the European Union, but it did not determine the form of Brexit. Careful parliamentary scrutiny will be needed to ensure the decisions that lie ahead are taken in the best interests of the people as a whole, and clear parliamentary accountability may even strengthen the government’s bargaining power.
Second, for the future, we should be seeking ways to make referendum campaigns – and our politics in general – more deliberative. We have begun at the Constitution Unit to investigate how we might do this, and, even from our early work, it is clear that there are concrete ways of improving substantially on our current referendum practices. Means can be developed for ensuring that accurate and balanced information is easier to find and for helping regular citizens to participate in reasoned, inclusive discussions. We should also consider the very place of referendums in democratic decision-making, and how they are best combined with our traditions of representative democracy.
‘Experts’ need to listen too
We have criticised the populist mindset, and some readers might presume that we sit in UCL’s ivory tower disparaging the unwashed masses who don’t understand what’s good for them. That, however, is not remotely true. Everyone’s perspective matters and deserves to be listened to with care. We have emphasised the need for an informed debate, but that does not mean a one-way flow of information from ‘experts’ to ‘ordinary’ people. In fact, information and ideas should be flowing both ways.
Some have suggested since the referendum that the people have stopped listening to the experts. But that is wrong: there is ample evidence that most people do respect the views and competences of experts whom they trust, whether that means their doctor, or the pilot of the aircraft they are about to board, or football pundits. But experts need to earn people’s trust, which means they need to speak directly and clearly to people’s concerns. It is too easy for academics to get caught up in our particular disciplinary debates and lose track of the need to answer urgent real-life questions. It is too easy also for us to get tied up in jargon and methodological sophistication, such that we lose the ability to communicate convincingly with the wider world.
What should democrats do now?
The quality of our democracy is under threat. There are three things we can all do now to help maintain it.
First, we should push back hard against the immediate challenges that are being made to the rule of law, the independence of the judiciary, and the legitimate role for parliament in scrutinising the process of Brexit. Important support for the legitimacy of the High Court’s role has come in the last 48 hours from, among others, the former Conservative Attorney General Dominic Grieve, the Shadow Justice Secretary Richard Burgon, the former Lord Chancellor Lord Falconer, the Liberal Democrat leader Tim Farron, the Chair of the Bar Council Chantal-Aimée Doerries, and the Brexit-supporting Spectator. Yet the Lord Chancellor – whose oath of office requires her to ‘defend the independence of the judiciary’ – remained silent until yesterday afternoon. Even then, while praising judicial independence as ‘the foundation upon which our rule of law is built’, she made no criticism (or indeed mention) of the fact that judicial integrity has been widely attacked. Such passivity is inadequate.
Second, we should push back with equal vigour against the rise of populism and populist rhetoric. Reaching the best outcome in the Brexit negotiations over the coming years will require sustained, reasoned engagement from both parliamentarians and the wider public. We should be supporting, not hectoring, those many politicians who want to perform their role in this process well.
A decade or so ago a rash of publications from political scientists expressed concern about the distance opening up between politicians and the public, asking ‘Why We Hate Politics’, and how we could better ‘Make Democracy Work’. As one of us argued strongly at that time, politicians have often been their own worst enemies, denigrating each other’s integrity in ways that harm overall public confidence. Democracy campaign groups have also sometimes been too willing to ride the populist bandwagon in order to advance their reformist goals. Since then their rhetoric has become fiercer – witness the shameful claims of ‘crimes against democracy’ by the Power 2010 campaign, or the bogus allegations about workshy MPs during the lead up to the AV referendum in 2011. In recent years, the social media revolution has facilitated even sharper debate, coupled with sometimes downright nasty abuse, setting us on a dangerous path. All who care about our democracy should now commit to supporting rather than undermining its foundations. As proposed 11 years ago, but with far greater urgency now, politicians and other participants in public debates could sign up to a basic charter of principles for reasonable discourse, including the principle that we will not seek to exploit voters’ disillusionment for our own purposes, but rather (except in the rare cases where it is not justified) respect other participants ‘as hardworking individuals driven by a sense of duty and belief in building a better society’.
Third, while resisting populism, all democrats should open their eyes and minds to the concerns of the millions of people who are tempted by the populists’ rhetoric. That does not mean always blindly following what they think. But it does mean listening to them – and to others throughout society – more than has often been the case in recent years. For example, more effort is needed to understand the challenges that high levels of immigration can pose to some local communities and to consider how social integration can be improved. Ultimately, our goal should be to seek policies and other actions that will help build a more cohesive society, in which everyone can both feel comfortable and that their view is respected.
Dr Alan Renwick is the Deputy Director of the UCL Constitution Unit.
Professor Meg Russell is the Director of the UCL Constitution Unit.
Note: The views expressed in this post are those of the author, and not of the UCL European Institute, nor of UCL.
This article first appeared on the Constitution Unit blog