Dishonouring the referendum result

By the editor, May 9 2019 02:22PM

Should the result of the 2016 EU referendum be honoured, regardless of the consequences? If not, what consequences might allow the UK not to honour it? What does “honouring” the result actually mean?

The reason it’s worth asking these questions is that there’s an assumption – among Remainers as well as Leavers – that the result should be honoured. But it’s not obvious what this assumption is based on. Some of the possible reasons for it, and some of the objections to it, are set out below.

Parliament voted for it, the Government promised to implement it

Parliament voted overwhelmingly in favour of calling the referendum: by 544 to 53 in favour of the principle of a referendum, and by 316 to 53 in favour of the final version of the bill, which included the wording that appeared on the ballot paper. In case anyone has forgotten (and some people appear to have done), the question was:

“Should the United Kingdom remain a member of the European Union or leave the European Union?”

Legally, of course, the referendum result was advisory not mandatory. But the combination of other circumstances led to a widespread assumption that the result was effectively mandatory. This included in particular a promise by David Cameron’s Government that the result would be implemented.

The result was fraudulent

Those Remainers who no longer honour the result often take this position on the basis that a) the Leave campaign peddled lies, and/or b) the Leave campaign broke the law, and so the result was invalid.

Legally, there’s nothing in these points. The first of these provides no legal basis for invalidating the result: electors are left to judge for themselves the accuracy of political campaigns. The second was considered in detail by the Court of Appeal, and rejected as having “no evidential basis” and being “clearly untenable” (The Queen on the Application of Susan Wilson and others v The Prime Minister [2019] EWCA Civ 304 paras 42 and 43).

It remains a point of view. I don’t agree with it myself. We all know that political campaigns are dishonest, and the dishonesty here was pointed out at the time. The Remain campaign was not itself beyond reproach, for example stating that an emergency budget would be needed immediately after the vote to prevent the economy from imploding. The Court of Appeal's reasons for rejecting the view that the breaches of the law by leave campaigners affected the result are compelling, whatever your view of the legal issues.

Clear but not overwhelming – the Soft Brexit compromise position

I was in this camp. It honours the result, but acknowledges the lack of clarity in the question that was answered. It considers that the closeness of the result, splitting the voting public 52:48, gives a clue as to how the question should be more precisely answered: implement a Brexit that would be most acceptable to Remainers. Something akin to a Norway model looked sensible.

A problem with this is that the Northern Ireland issue makes a straightforward Norway model unlikely if not impossible. Finding another Soft Brexit model that will work and could get through Parliament also looks unlikely. A further, perhaps more terminal, problem is many Leavers now regard any kind of Soft Brexit as no Brexit at all. It then becomes hard to persuade Remainers to support something that even Leavers don't want. There seems no realistic chance at the moment that a Soft Brexit would be democratically acceptable.

Another referendum

There’s the argument that we should respect the result in 2016, but acknowledge that it only provided part of the answer: we need a further vote now that the position is clearer on the options for leaving.

Proponents of another referendum are invariably Remainers, who expect one of the options on the ballot paper to be to remain. It seems to me a confused position. On the one hand it can be seen as dishonouring the result, given that only a short period of time has elapsed since the country voted to leave. Honouring the result may at least require the UK to leave before offering the electorate the chance the rejoin. On the other hand, it confers some democratic legitimacy on the 2016 referendum, by requiring another referendum to overturn it (and of course Leavers say, if there can be another referendum after Remain lost the first, why shouldn’t there be a “best of three” – it seems to me a fair argument). Furthermore, which Leave model or models should appear on the ballot paper? Excluding certain models (such as a no deal exit) may mean some Leave voters are effectively disenfranchised for the second vote, even though they won the first round.

Let Brexit wither and die

This looks the likeliest option at the moment, though few people openly advocate it. It may be that Parliament continues to disagree on any means of leaving, though it supports some form of leaving in theory, and the EU continues to agree to extensions to Article 50. It would mean dishonouring the referendum result but not doing so openly. The uncertainty would continue to damage the UK economy and its standing in the world otherwise. But after a few years, perhaps the issue becomes less potent, and it’s officially or unofficially dropped.

Political imperative, moral imperative?

I think it’s worth considering what “honouring” means. It suggests a moral imperative, rather than simply a political imperative. It’s undeniable that there is or has been a political imperative to press on with implementing some form of Brexit. As mentioned above, the advisory nature of the referendum is widely regarded as a legal technicality. People were promised that the result would be implemented. Brexit continues to dominate political discourse. Both main political parties claim to want to implement it. Many people would get very angry – even angrier – if Brexit was cancelled.

I don’t doubt any of this. But what of the moral dimension to this: is there a moral obligation on us as citizens, or MPs, to agree to Brexit being implemented?

I think I used to think this, though I’d not articulated it in such a way. This was partly guilt: having voted Remain, and lost, I felt a grudging sense of obligation to toe the line that Brexit should happen, even though privately, slightly shamefully, hoping that it wouldn’t.

But I can’t now see that there’s any reason for this. The referendum, based on the question posed on the ballot paper, should never have been held. That wasn’t so obvious at the time. It has become clear in retrospect. A referendum result can only provide a deliverable instruction to Parliament if the instruction is clear. We now know quite how unclear the instruction was. There are many varieties of leave, and none were specifically endorsed by the electorate. To take just one example, there was no promotion of a “no deal exit” by Leave campaigners, and no suggestion by any politician that such an exit was being considered. Yet now many Leavers claim that this is what a vote to leave actually meant.

The fact that the Government at the time promised that the result would be implemented may, again, have political force. But it has no legal force, and has no moral significance as far as citizens or MPs generally are concerned. In any event, that Government is no longer in power – we have since had a general election.

And it is worth once again considering the advisory nature of the referendum. The fact that politicians and others have distorted this so that it’s become generally accepted as being a technicality or forgotten doesn’t alter the legal fact. Parliament made legislation that resulted in a legally non-binding referendum.

Ah, but Parliament voted overwhelmingly to trigger Article 50, didn’t it? And didn’t most MPs stand on manifestos that supported Brexit?

Yes, but Parliament can change its mind. It can choose to revoke Article 50, or call another referendum. A Government may be under a political obligation to deliver its manifesto, but MPs aren’t under any duty to vote accordingly. MPs are also entitled to change their own minds, and indeed we ought to hope they will do so if they become aware of facts that undermine their original views. This is representative democracy.

The mess in summary

Unlike an election, the referendum didn’t give a victorious party a mandate to push through the result of the vote. Accordingly, no one has direct responsibility for it. Although the current Government has taken on that responsibility, it doesn’t “own” the vote. Accordingly, others have laid claim to representing the “will of the people”. Unlike a policy proposal in a manifesto, the referendum result won’t simply live or die with the Government. There is also no defined or agreed shelf life for it. It is partly this feature of referendums that makes them dangerous to democracy, and why they should be used sparingly, and carefully.

The vagueness of the referendum question was exploited in the referendum campaign. As the designated campaigner, with the largest resources, Vote Leave became the face of the Leave campaign. Its strategy was considered brilliant by many, partly because it managed to avoid pinning its colours to any particular leave option. It made the vague promise that the UK would “take back control” of its money, borders and laws, while also indicating that the UK would stay in some form of single market, and managed to keep socialists, nationalists and free marketeers inside the same broad tent. It might have been brilliant at winning the campaign (or maybe it was just being pragmatic), but the strategy has made implementing the result even more difficult.

The politics of Brexit is at an impasse because of the vagueness of the referendum question, and what resulted directly from it. Even if a form of Brexit was achieved, it would hardly satisfy anyone, and would infuriate many. The deal agreed by the UK Government was not only rejected repeatedly by Parliament, but is unpopular with many Leavers, many of whom consider it to be “Brexit In Name Only”, and worse than staying in the EU (30% of Leavers thought that MPs should have rejected the deal in March, while 49% thought they should vote for it, according to YouGov – and I expect the deal is becoming even more unpopular now). The EU aren’t going to offer any other deal that’s substantially different. The no deal exit favoured by many Brexiteer politicians involves negotiating a new deal, which simply takes us back to square one. A no deal exit that is based on no deal ever being struck, and relying on WTO rules only, is too extreme for mainstream politicians, and even for the Brexit Party. Among established parties, only UKIP supports this. But even if politicians were elected who pushed forward with this, it would require negotiations and compromises with various countries, not just the EU bloc, in order to keep the UK functioning, and that would lead to similar howls of betrayal from the hardcore Leavers, of accusations of selling our sovereignty, and the cycle would be repeated – or such politicians would be forced out, because everyone else would be appalled at the chaos this had unleashed.

So while it’s tempting to take the position that Brexit must happen for the sake of democracy, the political reality is that there is no form of Brexit that will satisfy a majority, or even a significant minority, of people. In which case, how would democracy be served by pushing on with some form of Brexit, if people don’t want it, and there’s no principled reason to do it either? Democracy was damaged by the referendum question, not by a failure to implement the result.

So what’s the solution?

As most people agree, there are no easy options now. The referendum has been extremely damaging, and recovering from it won’t be easy.

The political realities may require the UK to pursue Brexit somewhat longer. Provided the other EU countries agree, we could continue to extend Article 50 for some time yet. Parliament and the Government could continue to pretend to put some effort into finding a solution. In the meantime, it is possible Brexit could happen by accident (perhaps if France wants us out). Otherwise, we could stay in the Brexit antechamber until something forces the issue. That may be the least worst option in the short term.

But aside from the political realities, my conscience is clear: I think we should revoke Article 50 as soon as possible, and simply treat the referendum result as a constitutional aberration. Political parties would be free to campaign for Brexit in the future. There is bound to be a big shake-up of political parties over the next few years, and quite likely a new party or coalition will emerge with significant support that is overtly nationalist. At some point there could be a Government with a proper democratic mandate from a general election to implement Brexit – having decided on a particular form of it that could in fact be implemented, if that can ever be found.

I voted Remain – I wish I hadn’t now – I shouldn’t have voted at all. But however the country goes about trying to repair the damage being caused, I hope that one lesson learnt will be that we should never hold a referendum like that again.

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