What’s the Difference Between Brexit and the Death Penalty?- The Use of Referenda in Political Decisions
Whats the difference between Brexit and the Death Penalty?
Welcome back to the LiberalismFive blog after a longer than planned break. You may have tuned in expecting a joke* but alas not. Rather, I want to saw a few words on referenda and political choices led by the public, in our public and political life.
I’ve been troubled lately by my lack of ability to say when and why and how we should use referenda or other engagement mechanisms to make political choice. I can’t say I’ve fully figured it out but as a contribution let me offer these thoughts…
*There is a bad joke at the end…
Is Mr McShane Right?
Lets’s start with the quote above. Is Mr McShane right to say that if we gave into the populist demand for Brexit (which we did), we’d have no defence from populist demands for a return of the death penalty? Or, to expand the list, banning abortion, bringing back corporal punishment, or fox hunting, or whatever popular demand was lurking waiting to be activated by a bored, mischief-making politician or reactionary press?
In other words, if we concede that some decisions should be made on majority grounds, using public engagement mechanisms such as referenda, why aren’t all political decisions like that?
Let’s set aside any arguments over the impracticality of such an endless series of political referenda and questions to the public, and focus on the question in principle:
‘When is it right to engage the public to shape or make political decisions, and when should we not do so?’
That’s a large question which I will only partly answer here. Let me say, I think Mr McShane is completely wrong- by using referenda or other engagement mechanisms for one choice, we are not duty bound to use them in all choices.
Choice-Sensitive and Choice-Insensitive Decisions
But why, if we use referenda or other engagement mechanisms sometimes, are we not bound to use them in principle in all cases? How do we distinguish?
At this point I want to use terminology from the great Ronald Dworkin (1) which I think helps shine light on this.
Dworkin says there are two types or classes of political decisions- those involving mainly ‘choice-insensitive decisions’ and those involving ‘choice-sensitive decisions’.
To quote Dworkin:
‘Choice-sensitive issues are those whose correct solution, as a matter of justice,depends essentially on the character and distribution of preferences within the political community. The decision whether to use available public funds to build a new sports centre or a new road system is typically choice-sensitive. Though a variety of issues may merge into that decision, from issues of distributive justice to those of sound environmental policy, information about how many citizens want or will use or will benefit directly or indirectly form each of the rival facilities, is plainly relevant and may be decisive.’
And on choice-insensitive decisions:
‘The devision whether to kill convicted murderers or to outlaw racial discrimination in employment, on the other hand, seems choice-insensitive. I do not believe that the right decision on these issues depends in any substantial way on how many people want or approve of capital punishment or think racial discrimination unjust. The case against capital punishment, I believe, is just as strong in a comment were a majority of members favour it as in a community of people revolted by the idea.’
I think Dworkin gets this exactly right. And hopefully it’s easy to see why I introduced these distinctions to answer my own question.
Brexit is a choice-sensitive decision, where there is in principle no right or wrong answer, merely a political choice, albeit a very important one, that trades off how many people prefer international engagement and higher economic growth at the cost of sovereignty, verses those who believe higher controls on sovereignty trump any and all other issues. Note that it doesn’t matter whether the latter group are mistaken about degrees of control that Brexit will bring- it is public preference ultimately that matters so we are correct in principle if we want to make a Brexit decision via a choice-sensitive engagement mechanism such as a referendum. I’ll say more at the end about why I think the 2016 Brexit mechanism was still badly flawed but you see my point hopefully.
At the same time, it should now be clear why the death penalty is altogether a different sort of political decision. Bringing back the death penalty is a choice-insensitive decision. It matters not how many people in opinion polls want it, thats a bad way to make the decision as the answer really ought not to turn on weight of opinion, but on moral and political questions about the power and limits of the state.
Dworkin accepts that of course people will disagree about which issues are choice-sensitive or choice-insensitive From my examples above, I’d put fox hunting as a choice-insensitive decision (just wrong, based on my reasoning about animal welfare and the capacity to suffer) whilst many see fox-hunting as a choice sensitive decision, related to questions of economic loss in the countryside or the degree to which rural dwellers should be allowed freedoms which urban dwellers may end repugnant. As Dworkin says though ‘ the second-order question whether any particular first-order question is choice-sensitive or choice-insensitive is itself choice-insentivive. It makes no sense to say that a particular question is choice-sensitive if,but only if, a majority of people think it or want it to be.’
In other words, we need to have agreement via some political means, such as the rule of law or constitutional checks, on the balance between the two types of decisions in our society.
So, I think we have a usable and helpful distinction that goes a long way to helping us decide when and which questions might be subjected to referenda or other engagement mechanisms, and when we should run away as fast as we can when a consultation on a choice-insensitive question is posed.
Incidentally, many friends who support Scottish independence and who know I am strongly against the idea, assume implicitly or explicitly that somehow I must be considering it a ‘choice-insensitive’ decision. Presumably this perception might arise because I argue strongly (some might say rudely and ferociously) against it. But for the record- not at all. Scottish independence is clearly and absolutely a ‘choice-sensitive’ decision- I may have (and do have) a series of very strong arguments against, but my voice is but one when it comes to the weighing and measuring of political views on the issue, and that’s as it should be.
Coda- What Was Wrong With the Brexit 2016 Referendum?
-it was clearly called to manage tensions and difficulties in the Conservative party and not for the good of the nation
-the UK’s lack of written constitution and agreed rules about how we do these major events means we ended up fighting it out in court using wealthy individuals and crowd funding to sort out fundamental questions of process, scope and law. Even then we have only touched the surface
-we didn’t work out in advance how the devolved nations fitted into the decision, or how consultation should happen, triggering arguments afterwards
– we left fundamental questions of the franchise, the question, the minimum voting requirement and the threshold for victory be decided ‘as the dice fell’ or by normal political bargaining, meaning we ended up with a badly designed franchise, a narrow victory for one side and a lower than acceptable turnout to make such a big decision on.
To do referenda correctly in my view we need a constitution to tell us when and how referenda on major decisions can be triggered and by whom (we might say 2/3rd in house of parliament or a multi-million citizens’ petition). We need an independent and agreed decision on the franchise, and agreed and settled rules about turnout and thresholds (at least 70% turn out and at least 60% of the 70% voting for change?). We also need much stronger and better rules on the political and funding rules, to avoid all the dodginess now emerging on illegal donations and so on.
I hope to have at least partly answered my own question and convinced you along the way. There are such things as choice-sensitive, and choice-insensitive questions. And we would do well to only deploy referenda when we want to answer the choice-sensitive ones…
Now the Bad Joke..
What’s the difference between Brexit and the death penalty?
The death penalty hangs over you but eventually kills you. Brexit hangs over you but just tortures you slowly.
Ronald Dworkin Sovereign Virtue (2000) p204. Harvard University Press