22nd October 2018
On Saturday 20th October there was a march in favour of the “People’s Vote” – for a further referendum in respect of Brexit before the UK departs the EU.
The march was heavily attended, good natured and peaceful. The photographs on the news were striking, especially of the sheer size.
The legal tweeter and QC Sean Jones set out a compelling justification for the march, even if the prospects of getting such a referendum are low.
And I know many good and sensible (and admirable) people who went on the march.
So it is not with any joy that I set out arguments against a further referendum.
(Please not that these are my assortment of arguments, and should not be seen as a package, as you may find some weaker than others.)
As a preliminary point, however, there is a bad – if popular – argument against a further referendum.
That argument is that the 2016 referendum result was determinative of the issue, that the people have spoken and there is nothing more to say.
But, as I have contended elsewhere, a referendum result is either democratic or irreversible, and it cannot be both.
Just as no parliament can bind another, no electorate can bind another.
The votes on that June day in 2016 have no special magical power which cannot ever be gainsaid.
If there was a reversal of Brexit, by any constitutional means, that would be just as constitutional as the 2016 vote.
The first argument against a further referendum is the simple one of time.
A further referendum would need primary legislation, and probably secondary legislation, and there is simply not enough time for it to be done – that is, properly done – before March next year.
This blog pointed out the issue of time back in December last year.
The last referendum statute took a year from beginning to end (in a far less controversial atmosphere).
Also: issues to do with voter registration and campaign funding, which were dealt with by secondary legislation, would also have to be revisited.
(And the last lot of secondary legislation here has not stood the test of time well, as various findings of illegality indicate.)
In theory, a statute can be rushed through Parliament in a day, in an emergency, but that is for short legislation where there is no dispute between parties or between the lower and upper houses.
This “time’ argument has less force if there is an extension to the Article 50 period, but no extension is being proposed by any main player. But even then, the easy and quick passage of the legislation cannot be taken for granted.
The second argument against a further referendum is that Brexit has already been subject to constitutional checks and balances, and has passed them all.
Brexit does not hang only on a referendum result but now also on subsequent decisions of the supreme court, of parliament, and of the electorate.
The 2016 referendum was advisory, and the the result in and of itself had no legal effect.
After litigation which went all the way to the supreme court, there was a bill put before parliament so as to provide a basis for the prime minister to make the notification.
This bill was passed and became a statute, by significant majorities in both houses.
You may think MPs and peers were misguided in voting for the bill, but they did.
And then, unexpectedly, there was a general election and the question of Brexit was put before the voters themselves.
The electorate voted by a significant majority for parties committed to the UK’s departure.
Again, you make think that voters were misguided.
But the brute constitutional fact is that Brexit has now been approved by both parliament and the electorate.
It has passed through two constitutional pressure valves.
The objection to Brexit is now not only to the referendum result but also the decisions by parliament and the electorate.
In my view, parliament can and should still assert itself before March 2019, but that is unlikely.
But it cannot be denied that Brexit has passed through the required constitutional checks and balances.
Supreme court, parliament, electorate: how many more bites of the cherry?
(And it is, of course, difficult to place credence on a campaign for a further referendum promoted by those who, by definition, do not accept the results of referendums.)
The third argument against a further referendum is that referendums are part of the problem not part of the solution.
This can be also be seen as the problem of duelling mandates.
Referendums on a UK-wide basis sit badly with the UK constitution.
A mandate derived from a general election is a weak mandate. Many victorious parties ignore many promises in their manifestos. Some government’s even u-turn on manifesto promises (as the Conservative government did in 1990 over the poll tax/community charge).
But a mandate derived from a referendum is a different creature (or a poison, depending on your view). It seems not to have any way of being extinguished.
Some may argue that a further referendum is the only means the Brexit mandate can be cancelled out.
But instead what you will have are two decisions – two heads of a dragon instead of one.
And what if the further referendum is on a lower turn-out? Or a different majority?
Which mandate takes precedence?
This is why it is a matter for parliament to assert itself on.
The fourth argument is that a further referendum campaign, and a further fall-out from a referendum result, will make things worse.
You may wonder how a referendum could make things worse.
How it could make things worse has been set out by Robert Shrimsley at the FT (click here).
As he argues (in my view persuasively):
“If the previous campaign was ugly and divisive, imagine the next: a full assault on every institution of political stability with added venom for foreigners.”
Is there anything about how the Brexit debate has been conducted for two years which makes any serious person doubt this?
Fifth, there is the argument that the vote is unpredictable.
Those who were surprised by the 2015 and 2017 general election results, and by Trump’s defeat of Clinton, seem to believe that somehow this result is predictable.
But there is no particular reason to believe the electorate will suddenly side with Remain, as much as opponents of Brexit would want it to do so.
So overall: there is not enough time for a referendum, the constitutional opportunities for checking (or slowing) Brexit have already come and gone, there will be no way to choose between competing mandates, the whole thing will be divisive, and it may not get the result its supporters want anyway.
This is not to say that those opposed to departure should give up. They should carry on opposing with all their might until the very last moment, using any legal or political weapon available. There is nothing wrong with that.
I would love this Brexit story to have the happy ending so many of you want, with the # saving the day. Sadly, however, this is likely to be a Brexit by Quentin Tarantino, and not by Walt Disney.
Unless parliament asserts itself before next March – using the deeper magic of the constitution to defeat the witchcery of the 2016 referendum – the most sensible thing to do seems to be to prepare and influence the post-Brexit regime, so UK can continue being in the single market and customs union. I have described this as a “Burma Brexit”.
Any other way, it seems to me, does not rid the UK polity of the 2016 referendum “mandate” for the UK leaving the EU.
Let’s get it over with, stay close to the EU or rejoin – and let us never – ever – have a UK-wide referendum again.
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