What is the relationship between the understanding of autonomy and the democratic authority that is attributed to referendums? The connection between authority and autonomy is positively recognised and protected across the entire legal system when personal decisions of great importance are made. Should they not apply to general principles of public law as well?
This piece argues for a second referendum on Brexit but is not written with any view on Brexit. Further, the argument does not derive from the close voting result or from the quality of debate that preceded it. My argument, which has not been applied to referendum in the past, stems from the understanding of, and respect to, autonomy as the basis for the authority of community which is personified as a collective manifestation of popular sovereignty.
In a representative parliamentary democracy, a referendum is reserved for matters of crucial social importance that are sure to affect all aspects of communal well-being; the basic justification and limitation of governance or the very fabric of arriving at, and contesting, collective identity. Referendums are thus both an important democratic exception and a supplement to parliamentary authority.
Autonomy is central to our political thinking as one of the key values that demands protection by law. The principle is indeed enshrined in Article 8 of the European Convention of Human Rights. Autonomy is a principle that brings to fruition self-respect and as such is essential for well-being. It protects plurality in our community by enabling people to own unique and dynamic lives and decisions. These decisions should be respected if people have capacity to make them, however awkward, unpopular, irrationally eccentric these decisions might seem. People ought to be allowed to make mistakes as long as they don’t harm others. However, there are safeguards. An autonomous decision has to be free and fully informed and that means that, hidden un-freedoms and internal fetters of vulnerable people should not be exploited either advertently or inadvertently.
Genuine autonomy, though, is not just about the free manner of arriving at a decision. Being autonomous is also to be free to reflect on the adequacy of one’s choice after being given a genuine opportunity to change one’s mind. This, in short, is substance-neutral criteria of autonomy: to have choice and to have an opportunity to reflect on choice.
Our legal system does protect these criteria in our hard and soft laws, as well as in ongoing law reform proposals in matters of organ donation, adoption, abortion and last but not least, end-of-life decisions such as assisted suicide. It ranges from asking again to giving the person a period to change their mind and make sure this can be done easily. We do recognise the importance of a pre-emptive and effective opportunity to change one’s mind even if the initial decision seems entirely free. What is being guarded is the innermost, unexplainable and inviolable domain that brings about the initial decision or its subsequent reversal. If the initial decision does endure after a cooling off period, however, there is good enough confidence it is indeed autonomous and that there was protection from hidden pressures. Unlike the case of a single person where s/he can pre-empt the change of mind during a given period and silence can be seen as endurance of the first decision, in a referendum there has to be a second one called for the opportunity to change mind to be effective. The protection of autonomy has to be consistently protected in this way.
An autonomous decision follows a genuine dialogue and open range of inputs. But by their nature decisions always cut off deliberations. Moreover, there is a shadow hanging over the question of whether the decision can ever be an acceptable reflection of the deliberative process rather than this process being a rationalisation of a decision that has already been taken. It is important, therefore to have an opportunity to change the decision that can only materialise after time has lapsed.
An effective opportunity to allow one to consider changing their mind can happen, for example, where change of preferences takes place during the working life of Parliament. However, given the uniqueness of referendums, both the process of deliberation and the decision which follows require a unique self-contained process which offers an opportunity to revisit a decision and to possibly lead to a change of mind. A second referendum can serve to interrupt any attempted oppressive discursive strategy by dominant interests which could have previously played to vulnerabilities.
Even if morally and politically plausible, this argument has not been legally applied to referendum in the past. Evoking the legal philosopher Ronald Dworkin ideal of legality which he called ‘integrity’, the community becomes integrated through law by giving consistent weight to principles – in this case the principle of autonomy – across legal fields. Thus understood, the argument from legal precedent demands the incorporation the two criteria of autonomy into Public Law.
In order for the first referendum to be taken seriously though, the second one would have to swing the result of the first one in order to be counted as a ‘change of mind’. No third referendum will be needed as public autonomy will be adequately respected. There should be a constitutional convention on this matter which should be articulated by our courts as both the democratic guardians of the autonomy of popular sovereignty as well of people’s rights at times against the people and their representatives.
A second referendum ought to be a constitutional obligation owed to the people. Any second referendum of that kind should have been conceived as an implied democratic precondition for triggering Article 50. Now, after it has been triggered, the constitutionality of the triggering should be challenged.