A response from AC Grayling

Following my blog post of last week, AC Grayling has been in touch. He asks me to post this by way of response.

First, allow me to congratulate you on receiving the title of professor this year with your appointment at Royal Holloway College. I am motivated by the occasion to suggest the following, if I may. It is one of the less pleasing aspects of debate between academics that some of our fellows seem to feel that disagreement can properly be expressed only as if predicated on dislike, and couched in hostile tones. When you consider that even if you disliked someone, and had that as your reason for disagreement, the expression of that disagreement still merits being courteous. Debate might be adversarial, but the Platonic distinction between dialectic and eristic is a worthwhile one to bear in mind in pursuit of better understanding all round. It is a distinction that follows the lines of separation between pairs respectively of opponents, debaters, and enemies: it has always seemed surprising to me that a putative ‘fisk’ should be couched in terms of enmity in the arena of debate where, as your own remarks at the end of the blog suggest, standards should be maintained. In your newly elevated role you might therefore consider setting an example to colleagues accordingly: verbum sapienti sat est.
Second, there is one thing in your blog I agree with: that the strict and original meaning of the term ‘gerrymander’ applies to manipulation of electoral boundaries for political gain. We are all familiar with the story of South Essex in Massachusetts in 1812, and the cartoon which spliced Governor Gerry’s name to the salamander-shaped constituency in question. You will however appreciate that the endeavour in question — manipulation aimed at electoral advantage — is not confined to arranging constituency boundaries, but can take other forms: and by extension the term ‘gerrymandering’ is now not infrequently used to denote any form of manipulation of electoral arrangements in pursuit of political advantage. I use that term in that way in my book, confident of being understood.
Where we have more of a debate concerns referendums. You provide a table of places where referendums are decided on simple majorities of votes cast. Much more interesting would have been a table of countries where constitutional changes — amendments to existing constitutions, the introduction of new constitutions, changes making major constitutional differences to (say) the rights of citizens — are decided by referendum, and the nature of referendums in that kind of case. As we all appreciate, a referendum on whether or not to abolish street lighting in some Californian town might acceptably be based on a simple majority of votes cast; but let us address the more interesting question of what is and should be the practice in constitutional matters. Amending the US Constitution requires a 66% majority in each of the Senate and the House of Representatives to trigger sending a proposal for amendment to the states of the union, following which three-quarters of them must agree if the amendment is to be accepted. That is a very substantial requirement: a double-super-majority. It offers one model for how such arrangements for significant constitutional change, such as proposed by Brexit, ought to be viewed. As you are an expert on elections and referendums, your strictures on my view would have profited from a discrimination between the circumstance I had in mind, and referendums in general, given that I had expressly referred to the former.
Moreover, had you had an opportunity to read the book as a whole rather than just an excerpt, you would have seen among other things that there is context for my view on what an acceptable referendum should be for the case; among other things invoking the concept formulated by John Stuart Mill in his Representative Government of ‘constitutional immorality’ which I amend to ‘impropriety.’ Here the great variability of arrangements for recent referendums comes into focus. The Scottish independence referendum of 2014 enfranchised 16–17 year-olds and citizens of other EU countries, on the grounds that they had a material interest in the outcome. The Scottish devolution referendum of 1979 required a threshold of 40% of the total electorate, on the grounds that a constitutional change was in prospect. These highly relevant precedents were not followed in the case of the EU referendum of 2015, but not because of mistake, oversight, or laziness. The franchise for the referendum was debated in Parliament in October and November 2015 and David Cameron is on record, since the referendum, as saying that the fight with the right wing of his party would have been such as to make adherence to a general election franchise the only option. That is why he whipped his party into overturning the Lords’ amendment on the matter.
My point therefore is that the inconsistencies between the EU referendum on the one hand, and the two other referendums cited and the general principle of threshold requirements for referendums addressing major constitutional matters, on the other hand, calls the propriety of the EU referendum into question. That there are inconsistencies are perfectly clear, contrary to your assertion that there are none. Indeed I do not understand how you can claim this.
You dwell for some time on what you claim are errors in the account I give of this. Let me take just one but central point in your argument: you correctly point out that the Conservative party would not, for other reasons than those pertinent to the referendum itself, have been happy either to have the franchise extended from a general election franchise to a referendum franchise of the Scottish type, or to have a threshold such as was imposed in the devolution referendum; and that that is why Cameron did not insist. Apart from his own general dislike of the idea (in which he was supported by George Osborne) in case it gave electoral advantage to Labour, he felt he did not need to follow referendum precedent on the franchise because he was confident that Remain would win; and that therefore he could afford to be concessive to the Leave faction. The Leavers had insisted on this concession, as we see from the overturning of the Lords’ amendment among other things, for polling had suggested that inclusion of 16–17 years olds and EU citizens (and the excluded expats) would have given the Leave side a significantly more difficult task. It was a victory for them, therefore, in the debate on the franchise, to have the referendum precedents ignored in the interests of their aims. You may choose what term you like for a political effort to manage the franchise in the interests of influencing a political outcome, but I use ‘gerrymandering’ in its general sense to capture precisely that fact. I do not ‘accuse the government of manipulating the franchise to make it harder for itself,’ I say that the government allowed the franchise to be restricted because it did not think making matters harder for itself would matter. As it transpires, it did matter, and those who worked to have the constitutional precedents ignored in order to optimise arrangements for their own ends did so in full awareness of that fact.
You object to my saying that opposition to extending the franchise from a general election franchise to a more appropriate referendum franchise was ‘deliberate.’ The Commons being whipped into overturning the Lords’ amendment on the matter is about as deliberate as you can get.
The House of Commons Library is, quite rightly and properly, careful never to seem prescriptive or partial in giving summaries of Bills about to come before Parliament, so when in §5 of Briefing Paper 07212 (June 2015) they described the proposed referendum as advisory only and its outcome as not binding on Parliament or Government, and when they alluded in §6 to something other than simple majorities when significant constitutional matters are at stake, they did so in suitably neutral language. I used the terms ‘told’ and ‘pointed out’ in summarising the content of the two sections respectively: there is no problem with the semantics there, as this just summarises what the Briefing Paper says. However, nothing could be clearer than those two sections, or the Minister for Europe’s dicta in the debate in the House of Commons, as to whether the referendum was explicitly advisory only. You are just wrong in claiming that it was only implicit (and that therefore — so you seem to suggest? — that this does not quite matter).
Finally, on the Supreme Court decision in Miller. It is indeed my judgment that Parliament treated the decision in Miller with contempt. It was contemptuous to guillotine debate, to publish a White Paper on the implications of legislating only after the debate, and above all not to address the main issue: whether it should accept the advice of the advisory referendum or not, which as the sovereign body in the State it alone has the right to do. Instead the Bill hustled through Parliament addressed only the question of authorising the government to serve notice under Article 50 of the Lisbon Treaty, as if Parliament had already voted to leave the EU, that is, as if a decision to this effect had been formally taken, in line with the ‘constitutional requirements’ (as the Lisbon Treaty itself describes them) for doing so. Was the purport of the Miller action that the limited aim of the Bill would be sufficient, and did the Supreme Court think it was asking Parliament to consider this dependent issue alone? In contemplating the responsibility of Parliament in the matter of the referendum outcome the Court was careful not to be seen to be passing judgment on the outcome itself. It is important therefore not to mistake the matter of nuance in the judgment: the length of the Bill and time for the debate on it is not the substantive issue, though altogether too revealing of the government’s thinking about the nuisance that Miller represented.
Leaving aside the animus in your penultimate paragraph, I agree about ‘high standards’: had you made use of the leisure you devoted to your piece to addressing the extremely serious consequences for our country of the referendum, how it was framed, how the outcome has been treated, and what it says about our governmental and democratic orders, that would have been very useful. I look forward with interest to reading whatever you have to offer on these questions.
I read your forecasts for the 2017 General Election with interest.