A REFERENDUM OUTCOME, like beauty, lies in the eye of the beholder. Politicians go out of their way to declare “respect” for the result but skip the difficult preliminary work of explaining what that means in a parliamentary democracy. Constitutional lawyers know that sovereignty in the UK lies not with the people but with parliament. Elected politicians alone have the constitutional legitimacy to interpret and respond to the results of a single issue referendum. Writing in the Guardian this week, Belgian author David Van Reybrouck put it like this: “Never before has such a drastic decision been taken by so primitive a procedure – a one-round referendum based on as simple majority. Never before has the fate of a country – of an entire continent, in fact – been changed by the single swing of such a blunt axe, wielded by disenchanted and poorly informed citizens”. Van Reybrouck says that the “collective hysteria” of an election campaign is a fundamentally flawed way to decide complex policy issues. His solution is “sortition” a process where a random sample of the population join with elected representatives over a period of time to understand the issues, listen to experts, consider proposals, hear representations and finally make recommendations. The idea is for a representative sample of the population to get to grips with the issues preemptively before all is lost to the media frenzy of an election. The Dutch writer says that sortition has been used successfully in US, Australia, the Netherlands and, most notably in Ireland where 33 elected politicians and 66 citizens met one weekend a month for over a year to discuss subjects such as same-sex marriage and the rights of women under the constitution. Whatever the system, if politicians don't articulate for the public the constitutional context in which a referendum takes place, they and the country risk being held hostage by the outcome.
CONSTITUTIONAL WISDOM can be fickle. Lawyers know there are issues where it’s not just reasonable but highly desirable to set a threshold percentage for a vote to change the status quo. A threshold is common in national constitutions. It’s a common in companies for shareholder votes. The UK majority voting to leave the UK represented 37.5% of the electorate, below, for example, the 40% threshold set in the 1979 referendum on Scottish devolution. The majority in Scotland represented 41% of the electorate. The idea of a threshold seems to have been rather discredited by the 1979 referendum because it was perceived as “loading the dice” to frustrate devolution. However, as the UK and Europe attempt to digest the result, and with #Bregret and #Regrexit trending worldwide, the question arises, isn’t a threshold a sensible idea?
THERE WAS ANOTHER EXIT FROM EUROPE this week, that of the England football team from the European championships in France. Beaten 2-1 by the tiny nation of Iceland (pop 331,778) the result led to the instant resignation of manager Roy Hodgson and a great deal of anguished soul searching from the pundits. The Wales team – already through to the quarter finals – had to explain their exuberant celebrations at England’s defeat (caught on mobile phone footage). Former England manager Steve McClaren provided perhaps the most perfect piece of hubris/nemesis footage ever caught on television.
BEYOND POLITICAL AND SPORTING TURMOIL, BBC 2s Mr v Mrs: Call the Mediator, a fly-on-the-wall documentary filmed at branches of National Family Mediation looked at negotiations just as fraught and difficult as any EU conference. One mediator, Irene, had to deal with a couple who refused to even be in the same room together. As Sam Wollaston, reviewing the programme in the Guardian asked, “Hey, is there a timely lesson or two here, about exiting relationships, about the economic consequences, about hatred, about doing the best for the next generation? Er…no, don’t be daft, it’s completely different”. Mr v Mrs: Call the Mediator on BBC 2 Tuesdays at 9, episodes 1 and 2 on the iPlayer now.
THE WEEK DREW TO A CLOSE with the wheels of justice still turning in Parliament House. Writers to the Signet joined the Scottish legal community in Court 1 to witness Ailsa Carmichael QC sworn-in as a new Senator of the College of Justice. The Lord President Lord Carloway was in fine form, welcoming the new judge to “our friendly and exuberant cohort”.
Writer's Week is not intended to represent the views of the WS Society or its members.