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Proposal #5

Do Not Hold a Second Referendum

Martin Loughlin

11 June 2018

Calls for a second referendum make no sense constitutionally or politically. The idea that the first referendum would be binding was never contested at the outset, only by bitter Remainers unwilling to accept the verdict. Overturning the result will be politically disastrous, unleashing a wave of populist reaction.

As the EU Withdrawal Bill returns to the Commons for its final stages, fifteen London Labour MPs have joined three other London MPs, and other MPs across the country, to write an open letter calling for a second Brexit referendum. They claim that the 2016 referendum established a general principle only and that another referendum is required to approve the precise terms negotiated for withdrawal. “It cannot be right”, they argue, “that 650 MPs alone decide whether to accept the deal” and therefore it is “essential that there is a People’s Vote on the final Brexit deal, so that 65 million people can have their voices heard as well”.[1]

 

Earlier this year an amendment requiring just this was proposed in the Lords and rejected. But the London MPs’ call – following on from an announcement by George Soros that a political campaign to promote a second referendum will be launched on 8 June – signals the emergence of a coordinated movement by a determined group.[2] Let’s ignore the fact that the London MPs have somehow managed to add almost 20 million people to the UK’s electorate and focus instead on their claim[3]. If we think about it carefully we will see that the MPs’ demand for a second referendum can only undermine Parliament’s own constitutional authority. Moreover, the political consequences of a second referendum would be disastrous, widening the gulf that already exists between the political class and the population and further undermining the already fragile belief in the value of democratic representation. Let’s consider the constitutional aspects first and then the politics.

 

The Brexit Referendum and Constitutional Practice

 

The EU Referendum of June 2016 was authorized by an Act of Parliament of 2015 to give effect to a pledge by the Conservative Government in their 2015 Election Manifesto. That Manifesto stated that they “would negotiate a new settlement for Britain in Europe and then ask the British people whether they want to stay in the EU on this reformed basis or to leave”. It reiterated that: “We will hold an in-out referendum before the end of 2017 and respect the outcome”. Introducing the Bill to give effect to this pledge, Philip Hammond, the Foreign Secretary, left us in no doubt about its significance:

 

This is a simple, but vital, piece of legislation. It has one clear purpose: to deliver on our promise to give the British people the final say on our EU membership in an in/out referendum by the end of 2017.[4]

 

None of the speeches in the following debate cast any doubt over the finality of the proposed procedure. Speaking for the Labour Party, Hilary Benn was unequivocal. The Bill might only consist of eleven words, “but the answer will have profound consequences for the future of our country, as the people of the United Kingdom make the most important decision on our place in the world for 40 years”. It was, he continued, a decision “which will be felt by the people of our country for decades and generations to come”.[5] Later in the debate, he emphasised: “I do not think that anyone who goes into the polling station on the day, whenever it is, will not understand the consequence of voting either way”.[6] For the Green Party, Caroline Lucas stated: “I welcome the Bill and will support it. Greens have long called for a referendum on EU membership, not because we are anti-EU, but because we are pro-democracy”.[7]

 

The Referendum Bill passed its second reading with a resounding 544-53 vote in favour. It quickly passed the parliamentary stages and was enacted by the end of 2015. All of the signatories to this London MPs’ letter who were then present in Parliament voted for that Bill. Not one MP raised an issue about its status as a final determination. The 53 who voted against were mainly SNP MPs who did so because the Bill didn’t give a vote to 16 and 17 year olds and, most importantly, did not include a double majority provision to ensure that no nation in the UK would be taken out of the EU against its will.[8] There was extensive debate in the committee stage about the relevant franchise, purdah provisions for government and such like. But no proposals were made either to make the referendum merely advisory or to build in threshold requirements to ensure a substantial majority verdict.[9] Indeed, one of the current signatories of the London letter was eloquent on this point: “If I lose an election or a referendum, I recognise the result. … It is a pity that Scottish nationalists do not accept the result of the referendum they lost last year”.[10]

 

On an unusually high turnout of 72 per cent, the Brexit Referendum of 23 June 2016 resulted in 51.9 per cent voting to leave. It’s clear the Government were not anticipating this result, having made no preparations at all for its implementation. This has been the source of much governmental weakness subsequently. More profoundly, it’s clear that the result has produced a major crisis of political representation. Significant majorities of the parliamentary representatives of each major political party are evidently appalled by the prospect of leaving the EU. Having quite consciously transferred authority to determine the question to “the people”, they are only now beginning to realize that they have managed to undermine their own authority as well as eroding the authority of parliamentary government.

 

Now, rather than doing something to retrieve the situation – working to deliver what has been promised – they continue to bicker about the meaning of the referendum result. This will undoubtedly undermine parliamentary authority further with serious consequences for the stability of our constitutional arrangements. Whatever arguments parliamentarians use to justify trying to unravel the referendum result, they will only serve to demonstrate parliament’s own incompetence in the carrying out of its responsibilities.

 

Is there a political case for a second referendum?

 

Putting to one side for the moment the constitutional aspects of the referendum, can a second referendum be justified on political grounds? The answer commonly given is that the electorate did not fully appreciate the significance of the decision they were making. In the light of the above, it’s clear that this is an argument parliamentarians are not fit to make. It is also claimed that people were misled by dishonest campaigning. Yet this is an inevitable part of all political campaigning, and always one in which both sides collude (see also Analysis #6 - Why Did Britain Vote to Leave the EU?). The more general point is that in a democracy politicians should beware of claiming that the people have reached their decision through ignorance and deception. Doing so does nothing but destroy the ground on which politicians themselves stand.

 

It’s true that there is a growing tendency across EU member states of governments holding a rerun of referendums when the initial result is found not to be satisfactory, but this is a practice we should be very reluctant to allow to infect British political culture. For all its faults, the British tradition of parliamentary government has enabled us to make the transition from aristocracy to democracy without revolutionary upheaval and always to respect the outcomes of democratic elections. The underlying belief that political leaders comply with established rules, practices and decisions should not be thoughtlessly belied. And the opinion data suggests that the British public recognize this, with a majority of those expressing a view consistently indicating that there should be no second referendum.[11]

 

But what if the requirement was pushed through? There’s little evidence to indicate that views have significantly changed since the initial decision.[12] But let’s assume for the moment that in a second poll Remain wins (presumably by a similarly narrow margin). What follows?

 

The most immediate effect would be to convince those who voted to leave that the political system is rigged against them. And given that the first referendum result was the most class-correlated poll in recent political history this will have serious consequences. It will fuel the conviction that the impact of any vote against the wishes of the political class - those who, in Max Weber’s words, live off rather than for politics – will, in one way or another, be nullified. This will accelerate not only the retreat from political engagement but also a turning towards anti-establishment (so-called “populist”) movements. Both will seriously erode the basic foundations of British parliamentary democracy.

 

A second consequence is presumably that the Government will seek to withdraw the Article 50 notification. The Miller litigation, which engendered a great deal of public attention in 2016, proceeded on the assumption that such notification was irrevocable. However since withdrawal of the notification concerns a question of EU not UK law, it could not have been authoritatively resolved by the Supreme Court in any case. Should an attempt to withdraw the notification be made, it is likely to be dealt with by Member States in the European Council as a political matter. But we might note this could not prevent some disgruntled party seeking to refer the question to the Court of Justice of the EU as a legal question concerning interpretation of Article 50 of the Treaty on European Union.

 

Even without that legal threat, the process is complicated. Article 50(3) is clear: two years after a Government notifies the EU under Art 50(2) of its intention to withdraw, the EU Treaties will no longer apply.[13] By virtue of EU law, the UK will be ejected from the EU on 29 March 2019. It remains uncertain whether the UK’s Article 50(2) notification can be unilaterally revoked and despite wishful thinking to the contrary,[14] the logic of the Article suggests that it cannot. The decision on whether a revocation of the UK’s Article 50(2) notice is acceptable will be taken by the European Council … and this must be unanimous. All it requires to prevent revocation, then, is for just one of the 27 Member States to refuse on the grounds, perhaps, that things have gone too far and that any unravelling of the process would be too disruptive.

 

These technicalities should not obscure one key point: that once the UK issues the Article 50 notification the decision on such matters was transferred to the European Council to decide by unanimity. Who knows how some of the Member States will react? In the interim, consider the political fallout. The Brexit decision may have caused disruption and confusion throughout the EU, but seeing it through is the only way in which Britain’s credibility on the world stage can be maintained. To have gone through the upheavals of the last two years only to have Parliament and Government decide at the final moment that the UK has, after all, changed its mind would not only undermine whatever is left of our confidence in our own political system – it will make the UK a laughing stock.

References

[1] "It is essential that there is a People’s Vote on the final Brexit deal", The Independent, 2 June 2018.

[2] "Brexit: Second referendum campaign to be launched, George Soros announces", The Independent, 29 May 2018.

[3] According to the Office of National Statistics, as of December 2017, the total number of UK Parliamentary electors is 46,148,000.

[4] Hansard 28 May 2015, col. 1047; emphases added here and henceforth.

[5] Hansard 28 May 2015, col. 1056.

[6] Hansard 28 May 2015, col. 1059.

[7] Hansard 28 May 2015, col. 1142.

[8] Hansard 28 May 2015, col. 1067 (Alex Salmond).

[9] Cf. the Scotland Act 1978, which provided for a scheme of legislative devolution to Scotland but stated it would come into effect only if a majority of Scotland’s electors voted in favour and that majority constituted 40 per cent of the registered electorate. The 1979 referendum returned a simple majority (51.9%) in favour but this represented only 32.9% of the electorate and the scheme lapsed.

[10] Hansard, 16 June 2015, col 213 (Mike Gapes).

[11] See NatCen, "Should there be a second referendum on Britain’s membership of the EU once we know the terms the government has negotiated?", no date; NatCen, "Do you think there should be a second referendum to accept or reject the terms of Britain’s exit from the EU once they have been agreed?", no date. 

[12] See, e.g.: NatCen, "Is Britain’s exit from the EU working out better or worse than you expected?", no date.

[13] Article 50(3) states: "The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period."

[14] See Andrew Gray, "Article 50 author Lord Kerr: I didn’t have UK in mind", Politico.eu, 28 March 2017.

 

About the author/s

Martin Loughlin is Professor of Public Law at the London School of Economics and Political Science

This work represents the views of the authors only. It is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.