Assistant ProfessorSince the referendum in 2016, the Government has repeatedly justified its decisions on Brexit by invoking the concept of public trust. In December last year, the Prime Minister rejected the idea of a second referendum because, in her view, it “would do irreparable damage to the integrity of our politics, because it would say to millions who trusted in democracy, that our democracy does not deliver”. Then, last month, the Prime Minister said that not leaving the EU would cause “potentially irreparable damage to public trust”. And most recently, the Government – when confronted with a public petition to revoke Article 50 and remain in the EU – relied upon this concept of public trust to justify its ultimate rejection of that petition.

At the date of writing, the petition has just over 6 million signatures. On 26 March 2019, the Government rejected the petition. The first paragraph of the Government’s response reads:

It remains the Government’s firm policy not to revoke Article 50. We will honour the outcome of the 2016 referendum and work to deliver an exit which benefits everyone, whether they voted to Leave or to Remain.

As in the past, the Government continues in its response to invoke public trust in Government and to raise the concern that not leaving the EU will damage such trust. It explains:

Revoking Article 50, and thereby remaining in the European Union, would undermine both our democracy and the trust that millions of voters have placed in Government.

The Government acknowledges the considerable number of people who have signed this petition. However, close to three quarters of the electorate took part in the 2016 referendum, trusting that the result would be respected.

Revoking Article 50 would break the promises made by Government to the British People, disrespect the clear instruction from a democratic vote, and in turn, reduce confidence in our democracy. As the Prime Minister has said, failing to deliver Brexit would cause ‘potentially irreparable damage to public trust’, and it is imperative that people can trust their Government to respect their votes and deliver the best outcome for them. [Italics added]

The Government is not wrong to place great importance on public trust. First of all, it seems appropriate on an intuitive level that the Government should fulfil the public’s trust in it. Are we not entitled to trust our political representatives? But additionally, as I have noted in a recent article in the Oxford Journal of Legal Studies, such trust has significant instrumental value. For more than 50 years, social scientists have stressed the value of public trust in government to well-functioning democracies. They have argued – supported by a wealth of empirical research – that such trust is tied to the valuable ends of social stability, economic welfare and effective governance. Why? When the public has greater trust in government actors, it is more likely to regard government actions as legitimate and to cooperate with government, tolerating the political regime and voluntarily complying with laws and government demands. Such cooperation is critical because it allows the state to focus its limited resources for coercion on the relatively few disobedient. In Russell Dalton’s words: “democracy functions with minimal coercive force because of the legitimacy of the system and the voluntary compliance of the public. Declining feelings of political trust and political support can undermine this relationship and thus the workings of democracy” (159).

The Government’s apparent understanding of what trust means, however, is oversimplified. It is evident from the Prime Minister’s statements as well as the Government’s response to the recent petition, that the Government’s interpretation of public trust in Government, and what will damage it, places considerable importance on outcome. Put simply, in trusting you, I expect that you will deliver a specific outcome. So, if I trust you to buy me a specific house (which we can call Villa X), you will, in the end, buy me Villa X. Applied to Brexit, this understanding means that the public – in trusting the Government vis-à-vis Brexit – expects that the Government will deliver the result of the 2016 referendum: that the UK will leave the EU. The Government notes in its response that the public voted in the referendum, “trusting that the result would be respected”. It also refers to the Prime Minister’s earlier statement that “failing to deliver Brexit would cause ‘potentially irreparable damage to public trust’”. And it concludes its response to the petition with: “it is imperative that people can trust their Government to respect their votes and deliver the best outcome for them.” [Italics added]

But trust is far more complicated than that. The philosophical literature stresses that a factor distinguishing trust from the related concept of reliance is that breach or abuse of trust gives rise to feelings of betrayal, resentment and anger in the truster (whereas unrealised reliance does not). An outcome-based understanding of trust – like that adopted by the Government – implies that if a trustee does not deliver a specific outcome, the truster’s trust in her will have been breached or abused. And so, it follows that the truster in these circumstances will feel betrayed, resentful and angry. Applied to Brexit, this means that if the UK does not leave the EU, the Government will have breached or abused the public’s trust; and the public will feel betrayed by, as well as resentful and angry towards, the Government. But that cannot be right. We can imagine many reasons why a trustee will not, in the end, deliver an outcome, including reasons that may be beyond the trustee’s control. This is especially the case in a political context like Brexit where political, social and economic circumstances may change with time. Consider the example of you buying me Villa X. Now, you may not, in the end, buy me Villa X for any number of reasons. You may become physically incapacitated. Or you may learn that the property next to Villa X will be used for some undesirable purpose that will significantly diminish the house’s value. Or you may learn that advertisements about Villa X – upon which I based my decision to buy it – were misleading. If you do not buy me Villa X in these circumstances, surely you have not breached or abused my trust. Hence, I do not think we can fairly say that the trustee’s trust has been breached or abused – with its corresponding feelings of betrayal, resentment and anger – simply because the expected outcome has not been delivered. Given this problematic consequence of a purely outcome-based understanding of trust, it is not surprising that most academic writers have defined the concept in terms beyond outcome, specifically in terms of the trustee’s goodwill towards the truster and the trustee’s competence vis-à-vis the trusted subject matter – terms that I have argued, in another article, relate more to the process of decision-making than to its outcome.

Moreover, an outcome-based understanding of trust does not deliver the goods that public trust is expected to deliver. To repeat, public trust in government is valuable because of its tie to public cooperation, including the public’s willingness to accept governmental decisions, its feeling obligated to obey laws and its performance evaluations of government actors. However, a significant body of empirical work (including that of Tom Tyler and John Hibbing and Elizabeth Theiss-Morse) has shown that the public’s assessments of government legitimacy – and the cooperation that follows from such assessments – are minimally influenced by the public’s judgments of the outcome of governmental decision-making. Rather, the central or dominant consideration for the public is, actually, the process by which government actors make those decisions. So, if one of the principal reasons we are concerned with trust is its tie to public cooperation, should we not aim to understand the concept in terms of what better yields such cooperation: the decision-making process? Of note, the empirical work makes clear that for the public to assess government as legitimate, it is central that the process be seen as fair, including transparent and participative, as well as competent.

So, what does all this mean? It means that if the Government is concerned with the public’s trust (including fulfilling that trust) – as it says it is – it should pay greater attention to the process it follows vis-à-vis Brexit. Put simply, public trust in this context is not a matter of simply delivering an outcome – leaving the EU – at all costs. Process is key. Trust requires the Government to carry out the Brexit process in a competent and transparent manner. It also requires that the public be able to meaningfully participate in the decision-making process. Such participation – which surely includes the Government giving due consideration to the recent petition and perhaps a referendum on any final Brexit decision – would serve to fulfil the public’s trust. Regardless of the outcome ultimately delivered, it is the Government’s failure to follow a fair, participative and competent process that will damage public trust.

Dr David Vitale is an Assistant Professor at the School of Law, University of Warwick.

(Suggested citation: D. Vitale, ‘Leaving the EU: A Matter of “Trust”?’, U.K. Const. L. Blog (9th Apr. 2019) (available at https://ukconstitutionallaw.org/))

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