Is the Leave vote a case of tyranny of the majority? Should it be overturned by Parliament on that basis?
Of that tyranny, John Stuart Mill wrote:
Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.
It is clear that membership or otherwise of the EU is not an area where one could argue that the state “ought not to meddle”; it is not a matter of individual liberty of conscience or action, but of constitutional arrangement. Mill further argues:
There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.
Mill enumerates the rights of which he is speaking as religious freedom and “absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological,” freedom of speech, freedom of “tastes and pursuits” and action and what we now call ‘freedom of association’.
Here we may be in difficult territory. One clear argument, perhaps the most difficult to refute, is that younger people – those born after Britain’s accession to the then European Economic Community in 1973 (along with Denmark, Ireland and Norway, which later rejected membership by referendum) – are European as much as they are British (or English, Scottish, Welsh or Irish). To deny them membership denies them freedom to associate in Europe, of which they consider themselves integrally part. Certainly, polling by YouGov prior to the referendum shows a strong positive correlation of age to support for Leave among all voters other than those identifying as supporting UKIP. For voters under 40, there is a majority for Remain (to within the margin for error) for all parties other than UKIP.
Have older voters, thus, tyrannised younger voters? Edward Heath’s Conservative Government joined the EU in 1973, a decision endorsed by 67.2% majority at a referendum in 1975 (on a 64.6% turnout). The Treaty of Maastricht in 1992 established freedom of movement and residence within the EU. The ‘freedom’ is a mere 24 years old. But, for the more youthful voter, it may be no less a matter of his or her identity and perceived set of rights. Importantly, however, it does not stand alone as right of citizenship but is part of a bundle of rights and obligations accessed via national membership of the EU; in this case, one of the ‘four freedoms’ of Europe’s internal market which offers (or will offer) free movement of goods, services, capital and people. That ‘right’, and the identity that has grown up around it, cannot be separated from the other costs and benefits of EU membership.
Although it would seem not to be a tyranny against individual independence, that leaves open the possibility that it is a “wrong mandate instead of a right”. Mill argues that such issues can only be answered by resort to utility based on objective truth. Because the perceived balance of utility differs between people and deals with the future, it is necessarily speculative and uncertain and, thus, subjective. On that topic, Mill states:
People decide according to their personal preferences . . . [M]en range themselves on one or the other side in any particular case, according to this general direction of their sentiments; or according to the degree of interest which they feel in the particular thing which it is proposed that the government should do, or according to the belief they entertain that the government would, or would not, do it in the manner they prefer; but very rarely on account of any opinion to which they consistently adhere, as to what things are fit to be done by a government.
But again, here, Mill is talking about the test for “the propriety or impropriety of government interference.” Ultimately, there is no accurate assessment of utility, no clear and objective truth to either the Leave or the Remain proposition. There is no tyranny of the majority. We are left with the popular will, properly expressed. And from that popular will, whether we agree with it or dissent from it, we have an answer. Parliament overturns that expressed will at its electoral peril.
The question is what to do about it.