[This text formed the basis of a public lecture delivered at the Goethe University, Frankfurt on 23
November, 2016]
Brexit: The Meaning of Votes and Mandates amid the Inadequacies of the
British Constitution
Manufacturing meaning from meaningless terms
Brexit means Brexit. We are told. But what does Brexit mean? Brexit means that the United Kingdom
will not at some point be a member of the European Union. But apart from that truism, Brexit is
meaningless. The vote of 52% of the UK electorate who chose to vote in favour of leaving the Union
has no meaning, apart only from the fact that they wish to leave. If Brexit is taken to refer to the
terms of Brexit, then The Vote has no singular discernible meaning; it provides no “mandate” for a
particular form of exit arrangement or strategy; and provides no direction for whose interests should
be promoted, and whose interests should be sacrificed, in the terms of any exit arrangement.
A vote of 52% of the voting electorate translates into 37% of the registered electorate and a mere
34% of the electorate eligible to vote. 28% of the registered electorate did not vote at all on the
question they were asked: “should the United Kingdom remain a member of the European Union or
leave the European Union”. A further 7% of the electorate elected not to register for The Vote. This
35% group of silent voters were indifferent to this binary option. But one cannot infer from such
indifference that they are indifferent to the terms upon which we are to exit the European Union.
Different questions related to the different Brexit options may have elicited a voting response. The
interests of those who did not vote and their voice are not reduced to nought as a consequence of
their non-participation in the binary choice they were offered.
Of the 52% who voted in favour, or of the 48% who voted against, we do not know with any
certainty why they exercised their vote as they did. We do not know the cost / benefit calculation or
ideological commitments that generated their cross in the relevant box.

Many voted for exit in order to control intra-European immigration;

others because of their disillusionment with the outcomes generated by our globalised
world;

others on grounds of low level nationalism to make Britain great again and not to be told
what to do by European bureaucrats;

others because of objections to the EU’s perceived democratic deficit;

others because of the bad taste that an impression of EU waste and corruption leaves
behind;

yet others because it was time for the UK to take back control over its own laws, although it
wasn’t always clear which laws they wanted to control;

others voted to leave to protect the supremacy of the great institution of the UK Parliament,
the mother of parliaments, our great centre of representative democracy;

for others the idea of the European state is incongruent with the nostalgic idea of a small
British state, and the regulatory style of the European Union is incongruent with their idea of
the British regulatory style;

and there is even a small group who voted to protect the UK from the colonialism of the
European metric system! I stand before you 6ft two inches tall. I have no idea what my
height is in metres and centimetres. I am not sure how that can be true. But it is.
For sure it seems likely that some of these drivers were much more prevalent than others, but there
is no majority for any of these, or others (and there are, of course, others), in “the 52”.
We can, and we do, look to ex-post polls of voting choices and preferences to fine tune our
understanding of The Vote. Yet those polls will not reflect accurately the drivers of the decision.
Such polls are partial and necessarily subject to a range of ex-post justificatory and other biases that
distort that polling. And polling, as Brexit and Trump have made very clear, is not what it used to be.
But even assuming that polls are still capable of extrapolating national preferences from small voter
samples, they are incapable of accessing the complex mix of preferences, biases, commitments and
trade-offs that form voting choices.
Even if, let us assume, polls could identify one primary driver of The Vote, and let us assume, such a
driver is control of intra-EU immigration. Even then, we still would not know the extent to which
those who voted to leave to further that goal would be willing to sacrifice other benefits and rights
in order to obtain this sought after, “primary driver” of The Vote. That is, we do not know how firm
or precarious such a primary driver was for “the 52”. Votes are the product of a personal balance of
considerations, an implicit, sometimes explicit, cost-benefit analysis which contains multiple in-built
assumptions about trade-offs, and the limits of acceptable trade-offs. If those trade-offs are
different than pre-supposed then that vote would not have been cast as it was. But we can never
identify preferences accurately, never mind the implicit trade-offs (and the assumptions that
underpin those trade-offs) which underpin such preferences.
Again we can look to polling data, but again it can provide no meaningful direction. It can, as it did
last week, tell us that 51% of the UK electorate think that access to the single market should be
sacrificed if necessary to obtain control over free movement. But it does not tell us what percentage
of the electorate would be willing to make such a sacrifice, if such sacrifice would make you poorer
or your friends or family poorer, or how much poorer it would have to make you, your friends or
your family in order to reject this sacrifice. Furthermore, such preference-polling does not tell us
whether those preferences are a function of a lack of understanding of the meaning “of access to
the single market” or “the costs of leaving the Customs Union”, and, therefore, it does not tell us
how the vote or the preference would change if one was to ask the question through more precise
lenses. For example: the lens of fewer, or indeed more, cars produced, more expensive wine,
cheaper meat or the increase in the probability of an interest rate rise on your mortgage. The Polls
themselves reveal the deep indeterminacy of this preference polling. Consider, for example, a
ComRes Poll in June 2016, just before the referendum. 45% said they wanted to leave, with 9%
undecided; 47% highlighted a concern about immigration BUT 68% said they would not be happy to
sacrifice any of their personal annual income to tighten control over immigration.
The Vote, and the polls that attempt to decipher The Vote, are then truly meaningless as a direction
for political action; as a direction for the terms of Brexit. This much is incontestable. Yet on a daily
basis in the British press politicians and commentators tell us that the Brexit vote is meaningful as a
programme for exit. The British people, we are told, voted to ensure we get, above all, control over
our borders. The British People, we are told, voted to ensure that we get control over the laws that
govern us. The British People, we are told, voted to exit the Customs Union to look beyond Europe to
golden free markets in Asia, India and the Americas; we can be like Canada we did not vote to
become Norway.
That is, “Brexit” has now become meaningful in the media’s world of forming and getting ahead of
“the story”. “A story” which manufactures and steals a mandate from the jaws of the inevitable
ambiguity and meaninglessness of The Vote. In this world, the meaning of The Vote is formed in a
competition to capture “the story”; stories which further the aims of the politicians, commentators
and media outlets who are best placed to fashion “the story”. A competition that has been squarely
won by a nationalistic, anti-immigration version of Brexit. The rest of us are left complaining that this
is not what The Vote means; it can’t mean that; it doesn’t have a meaning. But the “story”
competition has already played itself out, and so no one listens, unless, that is, you have a literally
captive audience in a room in the Goethe University in Frankfurt. “The story” about The Vote is now
the truth about The Vote. To suggest otherwise, does run a risk that you will be labelled antidemocratic by “the story” tellers. Yet for the sake of quality of the Brexit debate it is essential that
“this story” is challenged and that the inevitably limited meaning of “The Vote” is reclaimed.
The nature of Brexit
Those who have captured the meaning of The Vote hold two strong views. First, that if it has to be
hard Brexit, then hard Brexit is what it has to be. Hard Brexit is understood to involve an exit that
provides the UK with no access to the single market and no preferential Custom Union
arrangements. “Our borders are sacrosanct and this is what The Vote has told us”. If the EU refuses
to allow us access to the single market without giving us control over free movement then access to
the single market must be sacrificed in order to implement the will of the people expressed in The
Vote. The second view they hold is that such a hard exit is unlikely because UK brinksmanship will
ensure that Europe will be reasonable and will allow free movement restrictions together with
qualified access to the single market and, possibly, preferential Customs Union treatment. This
means, for example, that UK based banks will continue to benefit from passporting, that UK cars will
not be subject to 10% tariffs and that those cars can be dealt with through quarantined exceptions
to a UK exit from the Customs Union. “Why would the European Union not agree to this”, we are
told, “EU countries want access to our markets to sell us their cars, their wine, their cheese, their
furniture”. In any event, according to our Foreign Secretary, it is “nonsense” to suggest that free
movement is a fundamental freedom. And, as it is not as fundamental as everyone thinks, the
European Union will adjust, negotiate, compromise, and, in exchange, we will continue to buy
German cars, French wine and cheese, and Italian clothes and prosecco.
This belief, of course, faces some significant headwinds. From this (Frankfurt) side of the Channel the
Europeans have been very clear. While Brexit means Brexit is meaningless, free-movement is not.
Free movement really does mean free movement; fundamental really does mean fundamental.
Here we see a clash of political and social cultures. Pragmatic Brits bought into the European project
for its economic benefits not for the political, peace-seeking romantic ideals that continue to
underpin the idea of the European Union for both a significant majority of European citizens, and for
an overwhelming majority of those who, currently at least, represent those citizens. From the
vantage point of Berlin and Paris free movement within the European Union is a fundamental
freedom, a political and value commitment as well as an economic necessity. However, pragmatic
deal-makers often fail to understand immovable lines built on ideas and animated values and
commitments. They presume they are moveable right up until the end of the negotiation when they
discover that they are not; and that they are left without a deal.
In the face of these headwinds, of course even the most belligerent Brexiteer and economic
pragmatist can’t help harbouring some doubt and anxiety as to whether such confidence that a deal
will be brokered is well founded. This generates an odd, if predictable, partial-interpretation of any
indications of compromise from European politicians, particularly of Chancellor Merkel words. When
she talks of a deal being available (sogar wenn sie sagt, dass die Briten nicht die Rosinen picken
koennen) the press focuses only on the availability of a deal not the impossibility of what we call
cherry, rather than raison, picking. When Chancellor Merkel says anything about free movement,
through this lens it is readily over-interpreted as a sign of pragmatic compromise. Last week, for
example, Chanceller Merkel talked about the need merely to “discuss further” free movement.
“Weiter diskutieren”, nicht mehr als das. That’s it. But not to the British Brexit media. This, we were
told, was a significant shift in the direction of a border controlling, single market deal for the UK.
Hope really does run eternal in Brexit land. Two days later, the anxiety returned as Schäuble merely
restated the German Government’s articulated position since June 23rd: no cherry picking; free
movement is sacrosanct.
And hope runs in the direction of further political “black swan” events. All of which are welcomed by
pro-Brexit groups. Welcomed because there is now an increasing affinity between the current
Conservative administration policies and those of other European populist movements, for example,
the Freiheitlichen in Austria. But welcomed also as enhancing the probability that the EU will be
more flexible in the single movement/free market trade off. Through this lens Trump’s election shifts
the balance of power towards the UK in the negotiation. Europe needs the UK more if the US
disengages from Nato and refuses to continue to allow European free riding on military spending.
Similarly, one can envisage that the election of Front National and the European dislocation this will
bring would similarly be welcomed. Welcomed because it could bring the European project down or
result, at least, in a new receptivity to a British deal. Germany is less hopeful in this regard; Merkel’s
possible demise at the hands of AFD may let in a SPD / Linke coalition but it will not assist in a proBritish Brexit deal.
Of course, it is distinctly possible that reform of the European Union driven by Europe’s changing
political landscape may result in a two tier Europe with a weaker EU role in relation to non-Euro
countries, alongside a strengthened role for the EU in the Eurozone. Sarkozy, for example, outlined
his views on a two-tier Europe last week in the Financial Times. And although he is now “yesterday’s
news”, perhaps there is an inevitability about such an outcome when not all members of the club
participate in monetary union. But such reforms are unlikely to come in time to impact the UK’s exit
process; and if they come quickly they will not assuage the Brexiteers with their manufactured
powerful “mandate” given to them to “take back control” over British laws and borders, because
such EU reforms will still require free movement.
A perfect storm of risk
This leaves the United Kingdom in a precarious position facing many foreseeable and significant
economic, political, and existential risks. It is a perfect storm of risk consisting of six components
which exacerbate rather than control and manage the risks arising from the Brexit Vote. I only have
time to touch on most of these briefly here.

First, as outlined, we have a referendum that does not, and cannot, give any majoritarian
instruction or guidance about the nature of an exit arrangement and the range of acceptable
trade-offs that it entails. But a referendum whose meaning has been expropriated by
populist control of “the story” of “the meaning of the referendum”.

Secondly, we have a Conservative government which has used Brexit to position itself within
the more nationalistic, anti-immigration and, at times, implicit anti-foreigner components of
the Brexit campaign; that is, a government at one with the story of the democratic
majoritarian “mandate” to control free movement as a “red line”.

Thirdly, we have the absence of political discipline which is normally generated by effective
political opposition. This results from a separate and leftist, progressive insurgency within
the Labour party. An insurgency that, to all but the most stalwart supporters of Jeremy
Corbyn, renders the Labour Party a powerful pressure group and not a plausible
Government in waiting. An insurgency that allows the United Kingdom Independence Party
(UKIP), as well as the Conservatives, to court the disillusioned white working class vote that
for decades has been strongly pro-Labour.
This leaves little doubt on the part of most
commentators that however the UK exits, and however damaging it will be for the UK, the
Conservative’s parliamentary majority will not decline, but increase, at the next election.

Fourthly, Brexit is taking place in the wake of other nationalist fault-lines which have arisen
in the UK in the past decade, most importantly the Scottish Nationalists. The Scots voted to
remain in the United Kingdom in 2014 by a majority of 55% on a turnout of 84%; the Scots
voted 62% to 38% to remain in the European Union. Scotland has been given no role or veto
in the Brexit negotiations. As a result, the likelihood of a second and successful Scottish
referendum is not insignificant, although the economics of separation remain very difficult
for Scotland.

Fifth, there is a sense of great urgency on the part of the Brexiteers, if not clearly Prime
minister May. A sense of urgency driven by the fear that events may drain the current
momentum from the idea of a radical exit connected to a clear populist mandate. If
foreseeable or unforeseen events intervene to stop or truncate a radical Brexit, then they
fear that it is unlikely to happen in most Brexiteers’ lifetimes.

And then there is a sixth, and in my view centrally important, component in this perfect
storm of risk and its management, which I would like to spend a little more time on in the
final part of this lecture. This final component of this perfect storm is the structural
weaknesses of both the British constitution and our modern conception of representative
democracy when faced with pressure for fundamental change. Weaknesses in the elements
of a constitution that should, and in most jurisdictions do, enhance the probability of good
decision making when faced with fundamental decisions that generate significant economic,
social and existential risks.
The British Constitution’s failure to manage existential risk: back to basics
In the political life of a nation, or any organization for that matter, the constitutional settlement is a
centrally important component for managing and controlling risk, and for maintaining certainty and
stability in political, social and economic life. A constitutional settlement typically renders
fundamental or game-changing events very difficult to implement. Such barriers to change take the
form of either, or both, high-threshold voting hurdles or the co-approval of multiple organs of the
state or the organisation. In a corporation, for example, constitutional changes cannot take place
without crossing high-thresholds or several hurdles. In a UK Plc or German AG, to change the articles
or the Satzung requires 75% of the votes cast by the General meeting; a Delaware corporation
requires a vote of both the board and a simple majority of the shareholder body, but of all the
outstanding shares. Similarly, pursuant to Article 79 of the German Grundgesetz, to change the
Grundgesetz requires a two-thirds absolute majority of the Bundestag and two-thirds of the votes
cast in the Bunderat, the Federal Council of the sixteen German Laender. In the United States, Article
5 of the US Constitution requires a two-thirds vote of both the House and the Senate in order to
propose a constitutional amendment, which must then be approved by three-quarters of State
legislatures.
In a corporate context, such high and multiple hurdles are also applied to
transformational events that do not involve constitutional changes, for example mergers.
These barriers to constitutional and fundamental change increase the probability that such gamechanging decisions, when they occur, are good decisions. There must be overwhelming support to
make them. Accordingly, such decision-barriers to fundamental change reduce the probability that
short-termist, populist pressures can generate existential risks to the state or the organisation. They
also dampen debate and demands relating to such fundamental change as the probability that
change can be generated is low. These barriers also generate positive economic effects, both within
countries and corporations, as they provide long term jurisdictional and organisational stability.
A second, very basic, feature of the way in which modern societies and organizations manage
decision-making risk (both generally and in relation to game-changing decisions) is that they deploy
representative democracy not direct democracy. It is, of course, banal and self-evident that direct
democracy is an unworkable form of government in large societies, and banal and self-evident that
representative democracy enhances the quality of high-level decision making, as representatives are
more likely to be skilled in decision-making and, as full time representatives, they have the time and
the incentive to become more informed.
Whilst party control of Parliament, together with the Whip system, may lead us to lose sight of the
effective functioning of representative democracy, the idea remains clear. It is about electing a
representative who will represent the interests of her constituents; who will make an informed
decision in the best interests of those constituents. A representative is not a pure conduit for the
majoritarian views of her constituents. As part of our social contract empowering the representative
we recognise that a neutral and more informed representative may act in ways that do not accord
with the majoritarian, even our super-majority majoritarian view. We empower a representative to
make an informed decision on our behalf; we defer in part to her expertise and skill. And whilst she
may belong to a party, her loyalty in making such decisions belongs to her constituents. Her decision
must be what she thinks, not what her party thinks, furthers her constituents’ interests. Such a
representative bargain generates better decisions and thereby, as compared to direct democracy,
enhances our social welfare. Of course such a representative operates within the constraints of reelection, but again constitutional rules, such as mandatory term periods, facilitate freer,
independent representative action.
This representative bargain is acutely important when it comes to game-changing fundamental
decisions. Whilst “the idea” of the representative role may seem somewhat quaint or utopian in the
context of the everyday cut, thrust and compromise of Parliamentary life, in the context of
fundamental changes the representative role is a key constitutional bulwark enhancing the quality of
decisions around pressure for radical change. Reliance on representative democracy lowers the
probability that any game-changing decision will be made unless the “case for” is very strong. This is
because representatives are more informed about the risks associated with such decisions than their
constituents, and also because representatives are aware that they will have to answer for the
consequences of the decision when they materialise, which may be some time after the popular
demands for action subside.
In the United Kingdom we do not have a written constitutional settlement; we have never written
down, at least fully and in one document, the terms of the British constitutional settlement and the
terms upon which it can be amended. We have several core understandings of our constitution and
multiple conventions which guide those core understandings. Most importantly, the Crown in
Parliament is sovereign. Which, in theory, means Parliament can make any decision it elects to
make. Absolute power resides with Parliament: it can distribute or retain power in any way it elects
to. All exercises of power are made by simple majority vote, of the votes cast, of the two Houses of
Parliament, namely the elected House of Commons and the unelected House of Lords - although the
House of Commons has the legislative power to override the objections of the Lords, subject only to
a time delay of approximately a year before the Act can come into force following rejection by the
Lords. Furthermore, under the UK constitution the Executive retains certain powers known as
prerogative powers, for example the foreign affairs power to negotiate and make treaties. In the
theory of the British constitution such prerogative powers are the residue of pre-18th century Kingly
or Crown power. They are the Crown powers that are left by Parliament in the hands of the
Executive, and could at any time be taken away by Parliament.
The effect of this constitutional structure is that there are no constitutional rules placing high voting
hurdles on fundamental changes and, in theory, one organ of the British state - the House of
Commons - can act alone; a power relationship that, together with the unelected nature of the
Lords, drives a deferential outlook on the part of the Lords to Common’s decisions. In simple
summary, the UK constitution provides no break, no distinctive barrier to radical and fundamental
change. It provides a relatively open door to populist drivers for radical change. The UK constitution,
therefore, is poorly designed to ensure good decisions are made in relation to game changing
questions like Brexit.
The idea of representative democracy, as outlined above, is therefore of profound importance in the
UK to good, long term decision-making in relation to game-changing events. Given the weakness of
the constitutional settlement that I have just outlined, the effective functioning of representative
democracy carries much more weight on its shoulders in the UK than it does in other jurisdictions. Its
effective functioning is, therefore, of profound importance to the actual form Brexit will take and to
the consequences of Brexit. The problem, however, to continue the metaphor, is that Parliamentary
representatives do not appear to want to carry this weight.
More precisely, the problem is that the meaning and primacy of representative government in the
United Kingdom has been challenged, and undermined, by the increasing acceptance of a role for
direct democracy. For issues of fundamental concern there has been a marked shift in the UK in this
decade towards using referenda. Since 2011 we have had three – on voting systems, Scottish
independence, and the EU. Yet without a written constitution we have not set down any rules on the
appropriate form or effects of referenda. We have not thought in any systematic way about the
appropriate voting thresholds for such referenda. It is for this reason that the terms of the Brexit
referendum could be set by David Cameron and his MPs. A referendum of fundamental and long
term significance for the UK, on 50% of the votes cast, no super majority, no threshold of the overall
electorate, and no four-country lock requiring support from each of the four countries of the United
Kingdom. And furthermore, we have no clear rules on the authority effects of referenda: how to
specify whether they are binding or advisory, and if the later, what does advisory mean in relation to
a vote that is a binary choice for an outcome that is an awfully long distance from a binary choice.
With an unformed and uncertain idea of direct democracy and the rhetorical power of “people
power” comes a diminished and less effective idea of representative democracy. Opening a door to
direct democracy has compromised British representative democracy which in turn enhances the
risks associated with Brexit. We see in the wake of the referendum a real risk that the central tenets
of representative democracy will be sacrificed to a manufactured idea of the people’s will and the
meaning of The Vote. For this reason, although Parliament is now likely to have a vote on triggering
Article 50 of the Treaty of the European Union, many Remain Conservatives and Remain Labour
party members appear likely to put up the white flag of surrender when faced with the rhetorical
gun of “the people have spoken”. As of the date of this lecture, it seems probable that (assuming
the Supreme Court affirm the position that Parliamentary approval is requires to give an Article 50
notice) that Parliament will approve, on relatively short notice, a one line authorisation bill, with
limited debate – the scope for debate being constrained by the limited wording of the bill itself. To
be clear, it is not that parliamentary representatives true to the ideal of their role should stop exit at
any cost. Clearly they must give great weight to the exit preference articulated in The Vote when
they decide whether to authorise the triggering of Article 50. But rather the point is that, as
representatives, MPs should only allow Article 50 to be triggered following a detailed and informed
debate about the range of Brexit options, including debate about the probability of various possible
outcomes and their effects. And that they should consider placing conditions on exit if preferred
options are unattainable or improbable. Such sensible conditions are easily envisaged. For example,
prior to triggering Article 50 the Government must determine definitively whether it is unilaterally
revocable; or, for example, assuming unilateral revocability, that authority given to the Executive to
negotiate is limited and that Brexit may not take its hard form, given the economic dislocation it is
likely to generate.
This is a necessary part of the representative role, if representatives consider it to be in the interests
of their constituents to impose such requirements and conditions. The claim that Parliament should
not act in this way as it would force the Government to publicly show its hand, is so weak that it is
quite remarkable that it can still be repeated or relied upon. The range of available “hands” are
considered publicly in the newspapers every day. The Government does not have any “hands” that it
has not revealed; or that have not been discussed in detail in multiple newspaper columns; or that
will not be publicly revealed the day after the negotiations commence.
With regard to any possible conditions imposed by parliamentary authorisation – such as a no hardBrexit condition, one could argue that they would undermine the executive’s negotiation strategy.
However, the balance of considerations to determine whether such conditions are necessary are an
inimical part of the representative role. In any context in which authority is delegated for a defined
purpose, it is a truism that the more unconstrained the authority the greater the possible return. But
given the risks associated with unconstrained authority it does not, of course, follow from that
truism that an authority delegation will not be subject to limitations and conditions. The delegator
of authority must always balance, on the one hand, the claims of the agent that more extensive
authority will generate a better return, with, on the other hand, the risks of loss that such extensive
authority may create. As a corollary of such balancing, a principal will often sacrifice a “best case”
possible return and limit the agents authority in order to obtain a lower targeted-return that
involves less risk of significant loss. To use a driving metaphor to make this point, one could say that
this would involve balancing the risk that an executive who is subject to no authority constraints may
elect to drive very dangerously, versus the fact that we may not be able to go so fast if we include
some brakes. Following such balancing, representatives may of course elect to impose no conditions
on the authority delegation. However, at a minimum the representative function requires them to
seriously consider them, and to impose them where they conclude that the risks and costs of driving
dangerously exceed the likely negotiating advantage of not including any brakes. MPs must,
therefore, resist the perfunctory acceptance of the notion that “the government must not show its
hand” or “the government’s negotiating position must not be compromised” as a justification for
compromising their representative function. The risks of loss may exceed the benefits of granting an
unconditional authority to the Executive trigger Article 50. The failure to seriously consider such risks
of loss and possible mitigating conditions would amount to a real abdication of their representative
responsibility.
I hope that these concerns are not well founded and that the Common’s will stiffen its resolve when
the authorisation legislation is put before it. But if it does not do so then it is incumbent on the
unelected chamber, the House of Lords, to stiffen its resolve and do the representative job that the
British constitution has given it. This is likely to be presented as establishment coup by the
unelected. However, such criticism would confuse the current constitutional role of the Lords, with
the broader questions of the legitimacy of an unelected chamber and possible reform options. Such
legitimacy concerns and ideas for reform are worthy of serious consideration, but until such reforms
take place the Lords has the constitutional function to perform which it has been given. A
representative function, not a rubber stamping function.