Political Constitutionalism and Referendums: The Case of Brexit

Abstract

The UK's political constitution rests on the checking and balancing operations of a representative system in which parliament is sovereign. By contrast, referendums are often considered instances of popular sovereignty. Critics condemn them as populist appeals to a singular will of the people that risk majority tyranny, supporters believe they allow citizens to check and balance the elitism of politicians. Such arguments lay behind the criticism and praise of the Brexit referendum. This article argues that while the criticism is justified when referendums form an alternative to representative democracy, they can usefully supplement such a system provided they are embedded within and constrained by it. So conceived, the Brexit referendum can be regarded as consistent with political constitutionalism. Yet, this conception challenges claims that it represented the sovereign will of the people. The result remained subject to ratification by a sovereign parliament and could be legitimately overturned by that body.