We all know the EU
referendum was not legally binding on parliament. That is not true of
all UK referendums: the referendum on using AV did require
parliament to enact whatever voters decided. Despite the lack of a
legal requirement, there remains a powerful political argument that
parliament was nevertheless duty bound to implement the referendum
result. It is an argument that is often invoked by both government
and opposition MPs. Now I have no doubt that in reality other motives
are important, perhaps decisive, but because political arguments can
be persuasive, it is important to debate this one.
The clearest
argument along these lines comes from a post
from Richard Ekins, who is a Professor of Law at Oxford University.
He writes
“Parliament made clear that the decision about whether to leave the EU was to be settled by the referendum. There were good reasons, outlined above, why Parliament should not permit Brexit otherwise than by way of a referendum. Even if one denies all this, one should still accept that a referendum once held settles what should be done. For the decision to proceed thus is itself an important public decision that fairly governs how we jointly are to decide. That is, Parliament having decided to hold the referendum, and the public having participated fully in it, the result should be respected and not undone.
Political fairness and democratic principle require one to respect the outcome of the referendum even if one is persuaded that Brexit would be a very bad idea. One might think it wrong to hold the referendum, but it was held – and Parliament invited the people to decide this question. ... In short, the important constitutional question of whether Britain should remain in the EU was fairly settled by public vote.
The proposal to ignore or undo the vote is unjust. It bears noting that the relatively powerless in our polity – the poor – overwhelmingly supported exit. Ignoring the referendum would be particularly unfair to them.”
Note that this does not say that people like me should shut up about
the harm that this action will cause. Instead it says that
parliament, having invited people to decide, should respect that
verdict. To do otherwise would be highly undemocratic, and would be
particularly unjust to those who, for well known reasons, might
justifiably claim that they are not well represented by the
sovereignty of parliament. Arguing that the Leave campaign told lies,
or that voters were deceived, does not seem to be a compelling
argument against this, as exactly these charges can and are made after general
elections
To help see why Ekins is wrong, it is useful to look at his
discussion of the claim
by Ken Rogoff that the “real lunacy of the United Kingdom’s vote
to leave the European Union was not that British leaders dared to ask
their populace to weigh the benefits of membership against the
immigration pressures it presents. Rather, it was the absurdly low
bar for exit, requiring only a simple majority.” But Ekins’
response strikes me as particularly weak. He essentially says
parliament could do this because it has done it before. He goes on to
say that there is “nothing at all perverse in Parliament choosing
to make provision for a clear decision on point by way of a single
referendum, inviting and encouraging public deliberation that
culminates in a moment of clear and authoritative decision.”
This strikes me as completely ignoring Rogoff’s point. How can a
51.9% vote on one particular day represent a “clear and
authoritative decision”. If a general election is close in terms of
seats, that is reflected in the balance of parliament, and
governments with small majorities and independently minded MPs face
constraints on what they can do. What Rogoff is saying is that a
referendum which only requires in theory a majority of only a single
voter can never be clear and authoritative. Those who lost can
justifiably claim that if the vote had been taken a day later or
earlier the result could have been different, and we know they could
be correct. The fact that UK governments have made this mistake in
the past does not make it right. Remember we are talking about what
is right politically, not what is right in law, so precedent is far less compelling.
Much the same point applies to the issue of a second referendum. He
says: “Parliament having chosen already the decision-making
procedure, it is not legitimate now to say that this should be set
aside. The time for arguing for a two referenda requirement, or
majority
support in each part of the UK, was before this referendum was
held.” He is certainly right that those who had won would think it
is unfair to apparently change the rules of the game after the event,
much as those who have lost think the whole process is deeply unfair
and unjust. I also think that Ekins’ appeal to those who are
otherwise unrepresented resonates with many Labour supporters, who
feel that such a move would look just like the elite overriding the
wishes of the people. (See
Owen Jones, who questions Corbyn’s leadership but not his Brexit
line.)
Except that is nonsense. If those who voted to Leave cannot get a
simple majority in a second referendum when we have a lot more
information about what leaving entails then that indicates something
very wrong with the initial vote, and not some plot by the elite to
cheat them. It is hardly undemocratic to hold a second referendum
because the situation has become much clearer. As I have said before,
when politicians argue that allowing a second vote is going against
‘the will of the people’ you know that you are in real trouble.
Is that unfair to one side? Of course not, because it is how politics
works. Take the Scottish referendum, where Remain won by 55.4%. Just
a few years later, and we could well see another referendum. To say
that is different because something crucial has changed actually
plays into the arguments for a second EU referendum. Unless voters
perfectly anticipated the nature of the exit deal with the EU, that
deal in itself is a huge and crucial change.
It seems to be neither politics nor fairness dictates that something
poorly done in the past should dictate what politicians do in the
future, when there is no legal constraint on them changing their
minds. Holding further votes when the situation has changed cannot be
undemocratic or unfair to anyone. [1]
I think all this is a useful perspective when we go back to the
original question of whether parliament is obliged in some way to
enact the result of the referendum we have had. Recall that Ekins
says: “Parliament made clear that the decision about whether to
leave the EU was to be settled by the referendum.” Now I have said
in the past that I can understand why an individual MP, who has
pledged to let the referendum decide their vote, should feel duty
bound to keep their word. But I do question how exactly ‘parliament’
made such a pledge. An obvious way for a parliament to make such a
pledge is to embed it into the terms of the referendum itself, as was
done
with the AV referendum. This was not done on this occasion.
It seems to me, therefore, well within the rights of any MP or Party
to say that they do not regard a vote this close as binding on how
they should vote. Indeed I would go further. Any MP or Party who thinks, based
on the knowledge they have, that those voting Leave will over time
regret their decision, has a duty to vote based on his or her
judgement, rather than be tied by some vague notion around
parliamentary commitment.
But all this assumes
that the Article 50 vote was just about implementing the referendum.
It clearly was not just about that. Any sane discussion of the
referendum has to recognise that voting Leave gave no guidance to
politicians about how to leave. The referendum was not about the
Single Market, the customs union etc. What the Prime Minister should
have done was to allow parliament to debate the issue of how to leave, which is critical for
the future of the UK. No doubt they would have given parliament a
lead, but triggering Article 50 could have waited until that
discussion had taken place. [2] Theresa May decided not to allow
parliament that discussion.
As a result, the
vote on Article 50 was not just about deciding to start the leaving
process, but it also effectively became the last chance for MPs to
express any view on how we should leave. That in effect made the vote
a decision to leave the way May had decided, or might decide without
recourse to parliament. The moment the Prime Minister did that, any
obligation an MP might have felt regarding the referendum became null
and void.
This is the crucial
difference between 1975 and 2016, and another reason why arguments
that appeal to precedent are wrong. In 1975, voters had a clear idea
about what both In and Out involved. In 2016 what Leave meant was
completely unclear, not least to those campaigning for it. That meant
in practice that voters decided on the basis of the form of Leave
they expected to happen, or perhaps were promised would happen,
rather than the form of Leave the government would eventually choose.
It is for this
reason that we appear to have a decidedly undemocratic result. If the
referendum had set remaining against leaving for the type of hard
Brexit that we are almost certain to have, it seems extremely
unlikely that a majority would have voted for that. Yet those who
argue that the referendum obliged MPs to vote for triggering Article
50 are in effect arguing for exactly that result. That is neither
democratic, fair or indeed wise.
[1] I am sure many
would argue that a referendum which came with the promise of a later
referendum where you could change your mind would be too great an
invitation to those who simply wanted to exercise a protest vote. I
will leave that and similar arguments for others.
[2] The more people
argue that such an arrangement would not have been practical, the
more they illustrate how badly designed the original referendum was.
Instead of debating and voting on a specific way of leaving (which
could have been chosen jointly by those who wanted to leave) relative
to remaining, we got a decision which was far too open ended. As a
result, Leave campaigners said during the campaign that voting Leave
did not imply leaving the Single Market. Once again, it seems odd to
argue that parliament should not try and rectify past mistakes like
this for the sake of some imagined commitment.