Brexit: Referendums - The Good, the Bad and the Ugly?

Recumbent under the family oak tree the mysterious IS, was struck by an acorn, and then pondered on the laws of science, gravity already a given but he then reflected that the current state of British politics at the moment resembles the second law of thermodynamics. He further reflected that maybe referendums are not always the most useful devices in a representative democracy with parliamentary sovereignty.

The one clear conclusion that ought to have been reached from the experience of the past two years is that referendums are not a very good way of deciding key constitutional issues. The verdict of the 2016 June referendum portrayed a United Kingdom that split 52:48 on membership of the European Union and subsequent events have only served to deepen such divisions.

But one might argue, what can be better than consulting the people: direct democracy, the purest form of democracy, the People’s Vote? For referendums are proving popular, particularly when the issues at stake chime with people’s interests: the 2016 referendum attracted a 72% turnout, significantly higher than the 66% and 68% turnouts for the 2015 and 2017 general elections. And the Scottish referendum of 2014 achieved a staggering 84.6%, the highest turnout for any election or referendum in the UK since the introduction of universal suffrage.

So why this modern trend for consulting the people? After all, post war Prime Ministerial giants such as Clement Attlee and Margaret Thatcher were very opposed to resorting to referendums. The 2016 referendum was only the third national referendum to be held throughout the UK, following the 1975 referendum on whether to remain in the European Economic Community (EEC) and the 2011 referendum which rejected the offer to switch to the Alternative Vote system for voting in general elections. It is surely no coincidence that the incidence of referendum use has grown in line with public appetite for greater involvement in decision making. Technology has opened up the opportunity for direct voting participation in light entertainment television programmes such as X Factor and Strictly Come Dancing, but such essentially fun decision making should not be equated with the responsibility of deciding issues of major constitutional importance in a referendum.

Referendums have invariably been a tactic to which PMs have resorted when in a party political fix. Harold Wilson cleverly used the 1975 referendum as a means of keeping the Labour party together on an issue in which it was fundamentally divided. Tony Blair, responding to growing nationalist pressure, was content for the Scottish and Welsh people to vote in 1997 on whether they wanted a form of devolved government (though whether the Welsh YES vote of 50.3% to NO 49.7% on a 50.2% turnout gave a clear mandate for devolved government is a moot point). He was not, however, willing to give the electorate the opportunity to endorse membership of the euro, a policy on which his government in principle was in favour, possibly because opinion polls never suggested that the outcome would be what he wanted – and David Cameron subsequently showed what happened to PMs if they end up on the wrong side of the argument. And Cameron himself only agreed to a referendum on the Alternative Vote as part of the price to be paid for entering 2010 coalition agreement with the Liberal Democrats.

So was David Cameron wrong to make a promise contained in the 2015 Conservative manifesto to give the UK electorate a say on EU membership? It would be easy to blame him for creating the political situation that the UK currently finds itself enmeshed, but that would be to conveniently forget the political pressures that were circling around him. In January 2013 Cameron signalled a future Conservative government’s intention to renegotiate terms with the EU and then hand the decision on continued membership over to the electorate, but this did not stop UKIP achieving the historic feat of being the leading party in terms of both votes and seats at the 2014 European Parliament elections. It is, of course, impossible to evaluate, but it is difficult to believe that the Conservatives would have won the 2015 election outright without such a commitment to holding a referendum on EU membership. But the essential point remains: the commitment to hold a referendum was given primarily for party political reasons.

There are a number of practical considerations which can influence the outcome of referendums: the nature of the question to be asked, the decision of when to hold the vote, and how to ensure that there is a level playing field of campaign expenditure between the two sides of the argument. Those who end up on the losing side of the argument are inevitably likely to proclaim that the issues were not properly understood and therefore the electorate were misled – but that is always going to be the case because time moves on and the future is uncertain. For example, did the electorate of 1975 who responded YES to the ballot paper question ‘Do you think the United Kingdom should stay in the European Community (the Common Market)’ appreciate or realise that this organisation would within eighteen years evolve into the European Union with political as well as economic aspirations?

These factors, however, are relatively insignificant compared to two overriding issues:

a. For how long should the result of a referendum be binding?

In 1975 in reaction to the 67% YES vote, a relieved Prime Minister Harold Wilson declared that ‘fourteen years of national argument are over’ (1961 being the year when Harold Macmillan’s government first applied to join the EEC) but this did not stop the Labour party, only eight years later under the different leadership of Michael Foot, including a commitment to withdraw from the EEC as part of its infamous 1983 election manifesto, subsequently dubbed ‘the longest suicide note in history’ by backbencher Gerald Kaufman.

Likewise the SNP north of the border has not abandoned hopes of Scottish independence following the 2014 result. The stalling of nationalist momentum with the loss of some seats in the 2017 general election and current opinion polls trends are the reasons why Nicola Sturgeon is merely delaying and not abandoning a formal demand for a second referendum.

And the primary Remainer argument for a second referendum on EU membership is that the electorate need to be given the opportunity to reconsider, now that they are aware of what Brexit would mean under the May Withdrawal Deal. But if the opinion polls are to be believed, a second referendum would again be a close outcome, so would a second vote come any closer than the first to resolving national differences?

b. Referendums undermine the principle of parliamentary sovereignty

Referendums are, at best, a snapshot of public opinion on one particular day and there will be always be a myriad of reasons behind how people choose to exercise their vote.

Our elected representatives in the House of Commons are sent to Westminster to debate issues, pass legislation, and scrutinise the actions of the Executive. At a general election those representatives, and particularly those members of the governing party, can be held to account for their actions and judged on their parliamentary voting record. In short, they are paid to take decisions on behalf of the electorate and herein lies the core problem with our current representatives: the majority of the 650 MPs in the House of Commons favour the Remain option with regard to Brexit; they struggle to interpret and enact the will of the electorate as expressed by the majority in the June 2016 referendum.

So here is a New Year resolution for all Right Honourable and Honourable Members of Parliament. The current political impasse has been created by the House of Commons: it legislated for a referendum, the referendum was held in 2016 and the people responded by giving their verdict. Both Conservative and Labour manifestos in the 2017 election subsequently made a commitment to honour the result of the referendum.

It is therefore the duty of the House of Commons to come to a majority view, after considered and learned debate, as to how to execute the wishes of the people in terms of negotiating a satisfactory exit from the EU. What the House of Commons should not be tempted to do is once again abrogate its responsibilities by putting decision making back to the people in the form of a second referendum.

If the Executive, in the form of the Prime Minister and her government, is unable to persuade a majority of the House of Commons to back its preferred course of action, it is no longer able to command the confidence of the House. The honourable, sensible, and indeed constitutional course of action would be for the Prime Minister to seek Her Majesty’s permission to dissolve Parliament ahead of a subsequent general election (which is why the Fixed Term Parliament Act should have been repealed at the conclusion of the coalition government, as it was never designed to prop up a weak minority government until 2022). The electorate can have the opportunity to examine and make a judgement on the different routes to Brexit offered by the two main parties alongside the Remain option that would be promoted by the Liberal Democrats.

‘Not another election’ might be the cry from some quarters. But the electorate in 2019 are likely to respond with renewed enthusiasm, as the need to broker a new Parliament would be clear and obvious. The current situation is fundamentally different to the spring of 2017 when ’Brenda from Bristol’ so effectively encapsulated the mood of the nation by questioning why a government with a working majority needed to renew its mandate from the electorate.