The possibility of a second referendum offers, to many, a tantalizing prospect of rescue from political deadlock. Since Parliament cannot decide on a deal and largely refuses to contemplate “No Deal,” this argument goes, we should allow the people to “choose” once more.
Barrister Oliver Conolly has offered a well-written and thoughtful case for a second referendum here on Quillette, which acknowledges some of the flaws that advocates of this plan often ignore.
Yet his analysis, in my view, suffers several major drawbacks. I will discuss these in loose categories, starting with the least important before broadening my analysis out to more substantive complaints.
The first category consists of examples of bias. To his credit, Conolly restricts his discussion to the official campaign groups in the 2016 referendum, rather than appealing to the excesses of the unofficial campaign groups. Yet he still maintains that the Leave campaign was more deceitful than Remain—a debatable proposition. Conolly also uses the loaded term “People’s Vote” throughout the article—not always in inverted commas. As numerous objectors have pointed out, participants in the 2016 referendum weren’t animals. At times, he indulges in obvious snobbery, e.g. referring to “Some of the more intellectually sophisticated Brexiteers.” This is precisely the kind of pompous, technocratic elitism that led to Remain’s defeat in the first place.
Advisory or Binding?
In examining the ongoing question over the nature of the referendum, Conolly notes: “If the result of referendum was not legally binding, there is no room to interpret it as ‘politically’ binding.”
This view surely overlooks key parliamentary decisions taken since that time. Not only did Parliament pass the Referendum Act by a huge majority in 2015, which committed the UK to an In/Out referendum, the outcome of the Supreme Court’s decision re: Miller very quickly forced parliament to approve the result of the referendum, which they did with a majority of 384 votes. This moved the electorate’s vote to Leave from “advisory” to one with clear parliamentary approval.
Parliament rejected an amendment to the Withdrawal Bill requiring the government to hold a further referendum by 319 votes to 23, and even amendments on maintaining aspects of EU membership, such as the Customs Union, have been roundly defeated. In other words, Parliament has had multiple chances to revisit the question, yet has chosen to commit itself to Leave as a default position. We have also had a General Election since the referendum in which parties pledging to uphold the result of the 2016 EU referendum secured the overwhelming majority of the votes cast.
Many would argue that the referendum process sent clear instructions to MPs that they should support the decision made by a majority of voters, even if formalities didn’t require them to. Either way, Conolly takes an unreasonable view of the public’s legitimate expectations of the referendum and its implications. He notes: “The key question with regard to issue of betrayal is not, ‘Would people feel betrayed if there was a ‘People’s Vote?’ but ‘Would they be justified in feeling so betrayed?’”
Conolly quotes a speech from David Lidington—then the Europe Minister—in the House of Commons before the referendum supporting the view of the referendum as “advisory,” but other ministers made contradictory remarks—even in that same debate. For instance, Philip Hammond (then-foreign secretary) said: “Decisions about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber…”
Perhaps voters missed these remarks, but similar lines were repeated on widely-viewed televised debates, by David Cameron, George Osborne and key figures from both of the official campaigns—not to mention in the infamous government leaflet stating, “The government will implement what you decide.”
Yet Conolly argues that the population would have no justified sense of betrayal because they should have recognized the government’s promise was not theirs to make (despite hardly anyone mentioning this before the vote). Here, the author can be accused of not living in the real world. Given the examples outlined above, it is hard to see how any sensible onlooker could expect voters not to view the referendum as binding. This would require people to have a perfect constitutional understanding (and rather clairvoyant, given the divergence of expert opinion before the supreme court settled it in Miller).
Putting this aside, the practical consequences of a sense of betrayal would occur whether Connolly believes them justified or not. There is no doubt that a second referendum would lead to a huge loss of faith in the democratic process, especially considering how many of the voters in 2016 were voting for the first time in decades.
Use of Precedent
Mr. Conolly asks, reasonably, whether the unique character of the 2016 referendum should lead to a second vote—something previously raised by some advocates of Brexit. He then cites the practices of the US and Germany, whose lawmakers require two thirds majorities to amend their constitution, to imply that a simple majority was insufficient to decide such a momentous matter.
This is where the analysis becomes more tenuous. Citing America and Germany ignores not only that referendums play no part in their politics, but the emerging precedents for the conduct of referendums in Britain. These include the 2014 Scottish referendum and the original referendum on EU membership in 1975, and often-overlooked examples like the Welsh devolution referendum in 1997, which was won with a margin of just 0.6% (6,721 votes). Though Conolly asserts that the 2016 Referendum somehow differs from these examples, because “there are many different ways of leaving the EU”, there are surely many different ways of, for instance, Scotland establishing itself as an independent nation.
While the 1998 devolution referendums and the 2011 AV referendum were on “specific” proposals, the most directly analogous referendum (1975) was conducted on exactly the same terms as 2016—as was the 2014 Scottish Referendum. In both cases, winning by a single vote was all that was needed. Whatever your view on the topic, it is disingenuous to submit only after the vote that the margin for change should have been higher. Though this might be the case in the future, such issues should be discussed and decided, in good faith, beforehand—rather than cynically moving the goalposts after the event.
The ‘No Deal’ Conundrum
Conolly moves on to discussing potential choices in a Second Referendum where he concludes that a ‘No Deal’ option should be ruled out immediately. His rationale is partly because it is, he believes, too uncertain; less “specific” than either the option of Remain or the PM’s deal. Yet it is not obvious why people’s options should be limited in this way. If anything, this suggests that referendums are not practical ways of overseeing treaty negotiations, which could easily be another argument to be made against a second referendum. And, since we are operating in hypotheticals, would it really be beyond the wit of man to come up with a defined offer on ‘No Deal,’ explaining what it meant in practical terms?
Conolly also dismisses important concerns of opponents of a second referendum. For instance, he notes: “It is a telling that ‘No Deal’ advocates in parliament are not campaigning for a second referendum in which ‘No Deal’ is on the ballot.” This ignores the fact that any referendum with multiple “leave” options, but only one “remain” option (e.g. Deal, No Deal and Remain) would, unless structured with some kind of qualified voting system, divide the Leave vote while clustering support around a sole Remain option. This would be seen as a “rigged” vote by millions, further eroding public trust in politics.
While No Deal may arguably offer “unspecific” outcomes (although Britain would almost certainly revert to some specific World Trade Organization processes and procedures) identifying Remain as a “specific,” continuity outcome also overlooks significant changes which have occurred in the EU since our vote to Leave. Already, the EU has withdrawn the concessions offered to David Cameron in 2015 when he attempted to “renegotiate” our relationship, while its budget commissioner has suggested that Britain could lose its budget rebate should we stay in. The EU is unambiguously moving towards ever closer union in more integrated military structures, and there is even support for a common immigration policy. One only has to look at the EU’s evolution since Britain’s accession in 1972—moving from a common trade area to a supranational lawmaker, exercising influence on tax, migration and regulation—to see that Remain could also bring unknown and “unspecific” repercussions of its own.
Finally, Conolly argues that “No Deal” would compromise the Belfast Agreement which helped to bring peace to Northern Ireland by necessitating a hard border between Northern and Southern Ireland. Yet this is also a contentious proposition, disputed by numerous legal experts and the likes of David Trimble, who actually negotiated the Belfast Agreement (and won the Nobel Prize for his trouble). Not only have leaders from the Republic of Ireland, the EU and the UK pledged not to implement such a border, there is nothing in the Belfast Agreement concerned with trade and border formalities other than disarming the security border. Tellingly, the Supreme Court judges in the Miller case agreed that the Belfast Agreement would not impede the triggering of Article 50 which committed us to leaving the EU on March 29—and this was certainly not conditional on the government reaching a trade deal with the EU. Yet here, matters of ongoing debate are presented as established fact.
Argument by Analogy
Conolly uses a number of unsatisfying analogies in his argument. Firstly, he compares the decision to hold a second referendum to a group of diners going out to eat and then deciding, having seen the options available, to head home instead. This simplistic comparison neglects a number of key dynamics, such as the impact of taking “No Deal” off the table, or that the likelihood of a second referendum would lower the array of options offered to the electorate the first time around. These seem odd omissions considering the article’s earlier emphasis on “bundling” in decision-making.
In a later analogy, Conolly does upgrade the importance of this choice to the family deciding whether or not to relocate for work. Yet this also overlooks the EU’s agency in negotiations. In this scenario, it would surely be more appropriate if the bosses or one or both of the parents did not want them to move and, knowing they wouldn’t if the offers were bad enough, proceeded to write them terrible references for their next jobs!
These criticisms may seem pedantic, but ignoring the interplay between options gives an incomplete picture. It also overlooks the perverse political incentives created by announcing beforehand that there will be a second referendum, which would incentivize MPs to obfuscate and delay difficult decisions, or else to present the public with badly-designed alternatives until they get their preferred result. To appropriate Conolly’s dinner analogy, this would be akin to rewarding those members of the family who initially voted against the decision to eat out. By dragging their feet and taking forever to get ready, they could ensure that the restaurant is closed by the time they get there.
Of course, no analogy can ever perfectly capture a given situation, but the fact that Conolly’s case relies heavily on nebulous comparisons involving sealed boxes and restaurants suggests a lack of concern for practical considerations—and this is a common trend throughout the article. Although he mounts a legal defense of a second referendum, a decision with huge political and social repercussions, his article contains just one sentence on process at the very end.
This leaves many unanswered questions. Even supposing MPs could just go to the House of Commons before the end of March and “vote” (in what context, exactly?) and agree a second referendum, how would politicians get around the 2015 Referendum Act and PPERA—the Act setting out established practice for referendums? What about securing EU agreement to extend Article 50, or the danger of running into EU parliamentary elections in May? How would you determine the wording of a second referendum question?
The Case Against a Second Referendum
There are, in my view, many strong arguments against a second referendum (and I certainly can’t do them all justice here). To begin with, how could the electorate trust that the result of the second vote would be respected any more than the first? If one referendum isn’t enough to resolve the matter, why would two be enough? If Leave lost in the second one, wouldn’t they insist on the “best out of three?” There could also be chilling implications for democracy beyond our shores. Should it prove impossible for the UK to assert its legal right to leave the EU, some would argue, it would suggest that no other member country could do so either. And this is before we even consider crucial questions about the implications for social cohesion.
Brexiteers are frequently asked questions like: “Why are you so afraid of a second referendum?” “How can more democracy be undemocratic?” etc. These are easily debunked propositions. Stable democracies depend on maintaining the electorate’s trust that their decisions will be respected, so voters can resume life in between them—and, as outlined earlier, voters were explicitly told the government would implement their choice. One only has to imagine the limit case to see the flawed logic behind such arguments. A system which held referenda on a daily basis would be “more democracy”—and also “no democracy” at the same time.
One of the most compelling arguments against a second referendum is slightly more intractable. I have previously written about some of the “unseen,” ignored economic benefits of leaving the EU, per Frederic Bastiat’s famous “Broken Window Fallacy.” In a similar vein, I believe a second referendum would represent a huge democratic “missed opportunity”—not just for Britain, but for the rest of Europe too.
Many UK-based commentators view Britain’s decision to leave the EU as part of a dangerous and rising populist wave. Some deplore Leavers as “gammony” backwoodsmen—or even racists. Yet in reality, if you had to choose an EU member state to exit first, you could do rather worse than Britain. Recent polling shows UK citizens to be supportive of free trade, and look significantly more favorably on migration than residents of many other OECD countries. We have a centuries-old history of political moderation, partly due to our first-past-the-post electoral system, but also a long tradition of parliamentary democracy, and comparatively stable institutions (for now!). Though there are obvious exceptions to this rule (take UKIP’s current leadership), British Eurosceptics, unlike many of their continental counterparts, have tended towards internationalism and free trade.
For these reasons, I believe Britain has all the ingredients to leave the EU in a reasonable way, maintaining a warm relationship with our European friends after departure. We have a unique opportunity to model a liberal form of nationalism—promoting cooperation and free exchange without the need for extensive political integration.
For similar reasons, thwarting Brexit carries proportionally high “hidden” dangers. Supranational, “command and control” approaches to politics are losing favor across Europe and, given the dramatic transformation of the political landscape in recent years, it seems likely that at some point in the future, another member state will vote to leave the EU. Instead of a Britain led by moderates representing voters who look (comparatively) favorably on free movement and exchange, the next EU departure might well be led by the likes of Matteo Salvini or Marine Le Pen, championing toxic forms of nationalism. This kind of departure would be far more dysfunctional, chaotic and damaging to European unity.
Some opponents of a second referendum have raised the risks of Britain’s political system being pushed to extremes as a result. I would argue that the same could happen elsewhere in Europe too.
In short—the stakes are far higher than our current political debate would suggest.
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