Since the outcome of the Referendum of 23rd June 2016 there have been calls for a second referendum. The past few months has seen renewed calls for a referendum. The arguments for and against need to be soberly assessed. I argue here that a lot depends on the specific case that is made and when it is made.
Any discussion on a second referendum is complicated by the specific question that such a referendum might ask and the political context and time when it might be held, for example whether it is a referendum on the ‘final deal’ on the terms of leaving the EU or a more general question of leave or remain, whether such a referendum might be held following a parliamentary rejection of the final deal, following a general election that might see a change of government. The case for a referendum on a final deal is very different from a call for a referendum in the absence of any clarity on what leaving the EU means. Parliament may quite well decide that the final deal will need to be settled by a referendum. This may possibly follow a rejection by parliament of the final deal, thus triggering a political crisis that could be settled only by a referendum.
The case for a second referendum at the present moment is very strong, however the case for one on the final deal is even stronger. It is not just about getting the people to ‘change their minds’, but of settling a matter of major national importance in light of the situation that exists now as opposed to in June 2016 when no information was provided on what leaving the EU entailed.
My analysis is based on the fact that the case for a second referendum now – or in the next six months or so – is very different than in the immediate aftermath of the referendum. Like it or not, it is the only way the problem will be resolved.
Let’s look first at the argument against. The Cameron government decided rightly or wrongly to settle the question of UK’s membership of the EU by referendum and this received (through more or less non-existent scrutiny) parliamentary approval. The outcome of the referendum, it is argued, was definitive and an unalterable decision made by the people and consequently the government has no choice but to implement the ‘decision’. Therefore to have a second referendum would call into question the will of the people and undermine the foundations of democracy. In other words, come what may, regardless of the economic costs, especially to the the poor and future generations denied of their rights, the UK must leave the EU because the outcome of the referendum made it inevitable. For those familiar with political philosophy, it an Hobbesian argument that the social contract once made cannot be changed.
There is another argument, which can be discounted for now, that once invoked, A50 is irreversible (this this almost certainly not the case).
These arguments are wrong for the following reasons (and more or less Lockean reasons, namely that political arrangements can always be reversed if they transpire to harbour tyranny). Democracy may lead to major mistakes, but democracies can also correct their errors.
The Referendum was not designed to settle the question of UK membership of the EU definitively for the simple reason that it was not designed to do so. As a consultative referendum, it was not a legal or political requirement that the result should be implemented. Were this the case, it would have been necessary to have stipulated a number of criteria (principally a super-majority). The government claimed it would implement the decision, but it did not have this right. Only parliament has such a right. This was clarified by the Supreme Court, which decreed in January 2017 that only Parliament can make the decision on whether or not the UK will leave the EU. Until now, despite the fact that the government has invoked Article 50, parliament has not yet made a decision on whether or not the outcome should be implemented. The proposed withdrawal Bill, has now been amended to give parliament the right to have a ‘meaningful vote on the final deal’. So, this all means that the referendum, as a fact of law and political reality, is not a done deal; it is not a decision.
The outcome of the referendum is not decisive or compelling. There is no political or moral mandate to implement the outcome. The 3.8 per cent lead that Leave had over Remain was in numbers 1,269501 m votes. That means the swing vote was only 634,751 (that is, if Remain had this many more votes the outcome would be the opposite). It is absurd to claim that this is a decisive figure or that it represents the ‘will of the people’. Yet the government is persisting with a course of action that disguises the small swing vote as a decisive vote.
To implement is not the same as to respect the outcome. The outcome should be respected, but not necessarily implemented as if it were a clear-cut decision. The result of the withdrawal discussions until now make clear that there is nothing clear-cut.
In view of the lies and distorted facts in the Leave campaign, people personally targeted by Cambridge Analytica though various social media sites, and the undoubted fact of Russian interference that has now come to light, further doubt is now cast on the strength of the Leave victory in terms of numbers and its moral standing. Faced against these forces, the swing vote looks a poor basis on which to build a new social and political order.
The small margin for Leave must also be consider the limited franchise that made it possible. While the turnout was relatively high (72.16%) and the size of the franchise (46,501,241 million) was in line with that of most elections, the fact is that a large number of potential voters were not enfranchised to vote: 16-17 year olds, UK nationals living in other EU countries and EU nationals living in the UK. Additionally, a large number of potential voters were not on the register of voters (those in short tern tenancies) and many people failed to get onto the register in the final lead up to the deadline due to the website crashing (possibly because of external interference).
The facts remain that in a population of 65.64 m only 17,410,742 m voted to leave. Of those who voted, 63 per cent did not vote to leave. Only 37 % of the electorate voted to leave. 12.9 million registered voters did not vote and whose views we do not know. In Scotland and NI the majority vote was Remain.
Still, the government can claim as a technicality that Leave won. That is correct but only a technicality. The problem with the argument is precisely this that it is a legal technicality, but democracy is not reducible to technicalities – it also requires legitimacy. The outcome of elections is, to be sure, settled by such often tiny fractions. This is not the case with referendums in general, which, again, is why the Referendum was a consultative one. In view of the fact that the EU Referendum is about altering the very fabric of British society, it is all the more reason why it needs to be deliberated and subject to every possible form of scrutiny. There is no reason why it should determine the future regardless of all consequences.
This now brings me to the core case for a second referendum: the question put to the electorate was undefined and we are now at a point where, if implemented, it will be defined and there is almost universal anguish about this the long-term consequences of even the best possible deal. Only a small number of MPS (c 40 or so) think the EU is better off outside the EU. Almost every national organisation, business, media, higher education, is sceptical of the claims of the benefits of Brexit, which is being pursued on the mistaken premise that democracy would be undermined by not doing so.
It is not against the spirit of democracy to settle by referendum a second time a question that with the passage of time became clarified. Indeed, it is precisely the nature of democracy that deliberation leads to decisions being revised in light of fresh information and new perspectives. Where previously the question was a vague question about leaving the EU – and which had numerous possible meanings – the result of considerable debate and deliberation over the past 18 months has led to some clarity on what the possible shape of a post-Brexit UK will look like. It does not look good.
It is clear that there is considerable support for a Soft Brexit, though this exists in several possible forms and all with considerable disadvantages, and that there is also wide support for remaining within the EU. A Hard Brexit (exit from the single market and custom’s union) has little popular support. It is evident that the democratic process requires clarity on the outcome and that it is subject to a vote. Even if there is not as yet a huge swing to remain in the EU, there is certainly a massive swing in favour of some kind of Soft Brexit. This is where the real problem resides. Due to the difficulty that the government will have in delivering a Soft Brexit in a form that is in anyway advantageous, there is in this alone a reason for a referendum.
For the moment, it is unlikely that there is political will to hold a second referendum. However, once the shape of the final deal is in place – probably by early autumn – it is imperative that this is settled by a referendum followed by a parliament vote on the outcome. It is likely that by then there will be political momentum in favour of a second referendum.