10 Years On: The Anti-Democratic Brexit

Yossi Nehushtan & Beatriz Flügel Assad

Yossi Nehushtan is Professor of Law and Philosophy at Keele University.

Beatriz Flügel Assad is a DPhil candidate in Law at Oxford University, and a Graduate Research Student at the Bonavero Institute of Human Rights, Oxford University.

On 23 June 2016, in the British EU referendum, 51.9% of voters voted for leaving the EU, in what was arguably the most important political decision made in the UK since it joined the European Economic Community (EEC), the predecessor to the EU, in 1973. Here we argue that all the decisions that led to the UK leaving the EU were anti-democratic, because they never reflected the will of a sufficiently autonomous, rational, and well-informed majority.

Those who argued that the referendum’s result reflected the will of the people made the following assumptions: (a) that the rule of the majority is a necessary component of democracy, and (b) that acting against the will of the majority, as expressed in the referendum, will be anti-democratic, and therefore unthinkable (for ample examples see here and here).

We accept the premise that the rule of the majority is a necessary component of the definition of democracy, and that acting against the will of the majority may sometimes be justified (for protecting human rights and liberal principles such as the rule of law, for example) but will still be anti-democratic. We wish, however, to revise these premises and to suggest a new approach:  that the will of the majority has democratic value only if voters are sufficiently autonomous, rational, and well-informed. People are autonomous if they have, inter alia, an adequate range of valuable options from which they can choose, and are appropriately independent while exercising these choices, i.e. they are free from outside determination, coercion, and manipulation (see here). People are rational if they apply the appropriate means for achieving their ends (see here). The requirement for being well-informed is self-explanatory.  

We then argue that (a) the referendum campaign resulted in an electorate that was not sufficiently autonomous, rational, and well-informed; (b) even if we are wrong – the referendum’s result did not reflect the true will of the majority; and (c) even if we are wrong again – the political decisions after the referendum did not reflect the true will of sufficiently autonomous, rational, and well-informed voters. If that is true, then Brexit never had any democratic legitimacy.

The Manipulative, Dishonest Road to the Referendum

The ‘Vote Leave’ campaign before the EU referendum is probably the best-known example of political dishonesty in the UK. It was exceptional for the magnitude of the dishonesty, its rate of recurrence, and its consequences. It seems unnecessary to go through the long list of lies, manipulations, misinformation, and disinformation that ruled the Leave campaign (see here and here). We find it difficult to find a single reason for leaving the EU advanced by the Leave campaign that was not a lie or manipulation (see here), or a prediction that has not proven to be ill-informed and ill-founded (see here and here).

The exceptional, unprecedented political dishonesty during the referendum campaign denied the referendum’s result any democratic value or legitimacy. At best, the referendum reflected the views of too many ignorant, manipulated and irrational voters. Regardless of what is exactly the threshold below which voters are not sufficiently autonomous, rational, and well-informed, it is a common wisdom that this threshold was clearly crossed in our case (for a persuasive argument that too many voters are always below said threshold, see here).

Political dishonesty transforms adults into political agents who are not significantly different from young citizens who do not have the right to vote. A deceived and manipulated citizen is always non-autonomous because autonomy entails, inter alia, freedom from manipulation (see here). Also, a deceived citizen is less likely to be rational (as understood above), where the lies or manipulations prevent the citizen from applying the appropriate means in order to achieve their own ends. Lastly, a deceived citizen is an ill-informed citizen, especially when they lack the ability to expose the political lies and manipulations.

Even if we are wrong here, and the referendum campaign did not affect the democratic legitimacy of the referendum’s result, either because voters were sufficiently autonomous, rational and well-informed, or because they are not required to be so, the referendum itself lacked democratic value and legitimacy, because of the following.  

The Will of the Majority – and the Referendum’s Result

The referendum addressed a multifaceted political issue and oversimplified it in the form of a yes/no question. Very few important political questions can be answered with a simple yes or no. Here, one can think of at least three possible approaches (one of which contains multiple sub-approaches): remain in the EU on existing terms; remain or leave subject to certain conditions relating to the UK’s future relationship with the EU; or leave without conditions. UK voters, however, only had two simplified options to choose from. One of the options – leave the EU – was notoriously vague and uncertain regarding its actual meaning.

When voters face only two options to choose from, rather than an adequate range of valuable options (in a multi-option referendum – or referendums), and regarding a complex and critically important issue, they do not have real choice and therefore are not able to express their true will by choosing one of the options given. They are in fact not sufficiently autonomous.  It would be naïve to assume that the referendum’s result reflected voters’ top preference. Therefore, even if voters were sufficiently autonomous, rational, and well-informed when they voted in the referendum, the referendum was nothing more than a façade of democracy that completely failed to reflect the true will of the majority.   

2016 Onwards

From June 2016, immediately after the referendum, until December 2019, the UK government either did not know how to proceed with Brexit or was not able to proceed. In December 2019, Boris Johnson led the Conservative Party to a landslide win in a General Election that was mostly about Brexit. However, despite the Conservatives winning 56% of seats in Parliament under the First-Past-the-Post electoral system, they only got 43.6% of the votes. The Conservatives and their pro-Brexit natural allies (the Brexit Party and the DUP) got only 46.4% of the votes between them. Opposition, ‘Brexit sceptic’ or ‘Remain’ parties got 50.9% of the votes – and around one million votes more than the pro-Brexit parties – yet they lost the election.

It would be a stretch of the imagination to claim that the 2019 election clearly showed that a majority of voters wanted a Conservative government that would in turn, implement ‘hard-Brexit’. In fact, three different opinion polls in the month of the election consistently found more voters preferring to remain than to leave the EU (by 51%-46%; 45%-39%; and 50%-46%).

Brexit as an Anti-Democratic, Anti-Constitutional Restraint on the Will of a Future Majority

Unlike most laws and political decisions, the decision to leave the EU is either irreversible or was always likely to change the UK legal, political, and social landscape for a long period of time, before it could be reversed. It is anti-democratic to allow a marginal majority at an isolated point in time to prevent a future majority from having its preferences realised (unless the purpose of binding a future majority is to protect basic human rights or basic democratic principles – but that is not the case here).

Being a member-state of the EU was part of the UK political constitution. It affected numerous aspects of its legal system (see here), politics, culture, and society. It was democratically and constitutionally inconceivable to change the UK constitution because of temporary preferences of merely 51.9% of voters, on a random day in June 2016. A super-majority and a more staggered procedure were required. Constitutional principles, arrangements, and institutions reflect an ongoing consensus. They should not be changed by a marginal, temporary majority. The stability of constitutional principles is what makes them ‘constitutional’, even within the context of the UK’s uncodified and relatively flexible constitution.

The 2016 referendum’s result did not reflect the deep, true, ongoing preferences of the British people. We surveyed relevant opinion polls that were conducted either from 2016, or from earlier years. The clear conclusions are: (a) public opinion on the matter changed over the years, going back and forth, with ‘remain’ sentiments being more dominant more often than not; (b) there was never a consistent, long-term majority that preferred to leave the EU; and (c) in recent years, there has been a clear shift towards rejoining the EU and a decline in ‘anti-EU’ sentiments, along with regret about leaving the EU (see here, here, here, and here). The referendum, therefore, reflected and captured nothing more than a random, temporary public mood of too many manipulated, ignorant, non-autonomous voters. Acting on it was anti-democratic.   

Conclusion

The decision to leave the EU was anti-democratic because (a) the Leave campaign led to too many voters being not sufficiently autonomous, rational, and well-informed; (b) the referendum yes/no question led to an answer that did not reflect the true preferences of voters; (c) implementing ‘hard-Brexit’ after the 2019 general elections did not reflect the will of the majority at the time; and (d) there was never a long-term majority that preferred to leave the EU and that could have justified preventing a future majority from realising its preferences on the topic.

Yossi Nehushtan is Professor of Law and Philosophy at Keele University.

Beatriz Flügel Assad is a DPhil candidate in Law at Oxford University, and a Graduate Research Student at the Bonavero Institute of Human Rights, Oxford University. 

We wish to thank the IACL-AIDC Blog editors for their excellent and rigorous comments on a previous draft of this post.

Suggested Citation: Yossi Nehushtan and Beatriz Flügel Assad, ’10 Years On: The Anti-Democratic Brexit’ IACL-AIDC Blog (29 September 2026) 10 Years On: The Anti-Democratic Brexit