I began this series of blogs by noting the fogginess of the UK’s constitutional position in relation to the Brexit referendum. In formal terms the vote was advisory, since there was no concrete legislative proposal for voters to choose, by contrast say to the 2011 referendum on the Alternative Vote legislation. Yet, virtually all MPs acted on the assumption that the EU referendum was mandatory.
Even after the Miller judgement, ensuring that the government could not trigger Article 50 without parliamentary approval, many MPs and government ministers continued to debate the issue as though, once the electorate had voted, parliament had been given its marching orders. Yet, since no parliament can bind its successors, the fog has not lifted. We are now in a position in which, although no decision was taken to determine the precise constitutional status of the referendum, people insist that it would be contrary to democratic values to hold a second referendum.
Does it make a difference that neither parliament nor the government have chosen to conduct a confirmatory referendum? From one point of view, the answer to this question is ‘yes’. The fact that parliament could have insisted on a confirmatory referendum, but failed to do so, might seem to be a reason for completing Brexit without a second confirmatory referendum.
After all, this is how things work in ordinary life. If you are given a chance to commission a survey on a house you are buying and you do not take that chance, you have brought the consequences of your negligence upon yourself. So, the fact that the opportunity was not taken to confirm the practical result of the referendum suggests that the process should go ahead unimpeded. We are where we are, wherever we otherwise might have been.
Yet there is an opposite point of view. That view says that the failure even to consider the possibility of a second confirmatory referendum does not provide a reason for going ahead but instead is just the reason for saying that to date there has been a failure of political responsibility. If Brexit really is the once in a generation decision that it has been billed as, then it is a decision that should be taken with care.
In an earlier blog I suggested that a second referendum was like the second chamber of a parliamentary system, providing a form of super-majority decision making, but without the fancy franchise and arbitrary numbers that often go along with super-majorities.
If there was a failure of responsibility in not thinking through the implications of the first referendum, that failure could be corrected by a second referendum.
Given that we are where we are, voters would know more about what were the realistic alternatives to continued membership of the EU. Brexit would no longer be defined by the meaningless mantra ‘Brexit means Brexit’. It would be clear that, according to the Prime Minister’s agreement, Brexit would place the UK outside the Customs Union, the Single Market and the jurisdiction of the European Court of Justice.
On present form, and if the government has its way, this looks like the UK standing in a similar relationship to the EU as does Canada, provided – a big proviso – the Irish border problem can be solved by technical innovation. On that basis, at least voters could acquaint themselves with the relevant facts.
How should we interpret the results of a second referendum? Suppose it confirmed the result of the first one. That ought to carry considerable weight, for it would be inconsistent with democratic values for government and parliament not to accept that result.
By contrast, suppose a second referendum decisively overturned the result of the first, say by a margin of 55 per cent to 45 per cent or more. Then it would not be consistent with democratic values for parliament and the government to reject the result. To do so would be to prevent voters from changing their minds. Since parliament can change its mind, as it did over the Poll Tax in 1989 and 1990, there is no reason to prevent the electorate from changing its.
Do these conclusions still hold if the second vote is close, say by the same 52 percent to 48 percent as the first referendum? A two-round referendum system makes it more difficult to secure change, just as a two-chamber parliamentary system makes it more difficult to secure change than in a one-chamber system, but it does so without setting an arbitrary threshold of support for change.
So, if the second referendum repeated the result of the first, the two-round process would have done its job of providing an opportunity for rethinking the issue. If the second round negated the first, even by a small margin, that too would mean that the system had done its job.
Opponents of a second referendum sometimes say that it is simply a way by which a political class goes back to the people until it gets the result that it wants. Perhaps among some Europhiles that is true. But there is another way of concluding that a second referendum is justified, which relies solely upon democratic principles and what they imply for politically existential decisions. Look before you leap is a good principle. Vote twice in order to confirm is equally good.