A SECOND BREXIT REFERENDUM?
BY NIK SLOAN
BY NIK SLOAN
Nigel Farage recently made some comments on the desirability of a second referendum. This has served to reopen the debate on whether there should be a second referendum and whether the Brexit decision could ultimately be overturned. It’s obvious to everyone that it can be overturned. The very fact that the EU referendum in 2016 was called proves this point, as that itself overturned the referendum in 1975 which determined that Britain joined the EEC. Nigel Farage said as much just before the referendum, when he said that a narrow remain win may require a revisiting of the question. So it is quite imaginable and it is possible that the referendum can be overturned. The more interesting question is whether it should be.
First, we should examine the question on policy grounds. If Brexit is bad policy then surely it should be reversed? So is Brexit good for the national interest? The Leave campaign’s arguments made the answer to this appear deceptively simple. Leave, it was claimed, and Britain would be wealthier outside the EU. How? By trading on the same terms with Europe as before, by having control of the money we send to Europe and having freer trade with the rest of the world. Not only would we be wealthier, but we would “take back control” from Brussels; making our own laws on trade, migration and generally excluding EU laws from affecting British law.
This “fantasy Brexit” has proved impossible. Hardly surprising, considering the campaign promises were often contradictory, some were based on misrepresentations and on the assumption Britain had the stronger negotiation hand.
The situation is this: Britain can’t walk away because there is simply too much to lose. Had walking away ever been an option, May could have done so during her populist heyday - whilst probably significantly boosting her already impressive popularity through an upswing of nationalist fervour. She did not walk away, and that speaks volumes. We rely on Europe, not just for trade, but aviation, brand recognition, heritage protection etc. That aside, new free trading arrangements are ever more difficult to find in an increasingly protectionist world, and President Trump is clearly less than accommodating contrary to the early hopes of Brexiters; although a fool’s hope from the outset.
Throughout the negotiations, Britain has acquiesced to most of the European demands. The British did achieve some fairly limited concessions pertaining for example to the amount paid for the divorce bill, but it is clear who calls the shots. May’s aim in the negotiations can fairly be described as keeping our current trading arrangements with the Europeans, whilst trying to get rid of unlimited EU migration and the direct jurisdiction of the European Court of Justice. Essentially, her approach is to leave the European Union, but recreate our membership of the EU outside of the EU with some modifications.
Whether or not this approach is successful will be seen as the year continues, but what can be said with certainty are two things.
1) First, it’s not the Brexit we were promised by the leave campaign, far from it. We will not get control of our own laws, we will not be able to trade freely with the rest of the world, we will not be able to spend the 350 million on the NHS, etc.
2) Second, May’s Brexit makes no sense on its own terms.. We still have to obey EU laws, but notably without having a say on them. We still have to pay into the EU budget, without having a say on its future and our trade with the rest of the world will be limited by virtue of regulatory alignment which comes from obeying EU laws.
So now we come back to the question of whether Brexit should happen. Evaluating May’s Brexit, the answer is no – so much is lost for no gain. We still would have most of the obligations of EU membership, whilst losing some very significant benefits. The May government will still want to keep the city of London’s unique relationship with Europe, but the Europeans are unlikely to allow this unless the British accept freedom of movement – although there may be some limited compromise on this, like an emergency break that Cameron was offered, but unlikely much more. It is possible that CJEU jurisdiction will become indirect, in that the Supreme Court will be the highest court in the country, but it will still have to have regard to the CJEU’s jurisprudence, in practice not really making much difference. So under May’s Brexit, everything will remain the same but we lose a say in the future of the European Union. Hardly a sound policy, and a Brexit in name only.
Of course there is the alternative of exiting all EU institutions, trading more freely with the rest of the world and becoming a low regulation, low taxation hub. This must be dismissed as unfeasible here, because it will involve the fallout of a hard/no deal Brexit, affiliation with the EU becomes difficult because this option precludes regulatory alignment. A hard Brexit is not possible through the Northern Irish border situation. It requires a huge amount of political capital and a long time to pull off. Whilst there may be benefits to this approach in the long run (although that is a big maybe), the short term fallout is unsustainable, especially not in a democracy with frequent elections and Jeremy Corbyn knocking on the door.
On substantive policy grounds, the referendum “fantasy” Brexit is discredited, May’s Brexit keeps things the same but leads to less say for Britain and a true hard Brexit is not feasible. Of course, that still leave the following objection: Brexit is the will of the British people; the referendum was an unprecedented democratic decision and must be respected. It is a surprisingly powerful argument which has at least disabled much resistance to Brexit in political circles, although it has odd implications because it holds democracy as a good in itself, that is to say that if we had a referendum to kill all ginger children, it would need to be respected because it purveys the will of the people, even if the decision is absurd. Nevertheless, to make the case for an ongoing debate on the subject, it must however be engaged head on.
First, we have to accept that the referendum is not binding by law, it is advisory. The Supreme Court’s case in Miller confirmed as much, where it essentially said that the referendum result did not give the government the power to remove the rights conferred onto the citizens of the United Kingdom without having recourse to Parliament. The referendum was also explicitly made advisory by the Cameron government, as can be seen from the Parliamentary debates on the Bill which authorised the referendum. There is thus no constitutional reason why it should be binding.
So rather, there must be a normative reason why the referendum should be binding. Binding is a loaded term here, as it confers a dictatorial powers over all aspects of government policy for an unforeseeable amount of time on a slim majority, identified by an opinion poll on one particular day. Decisions pertaining to some constitutional question usually require a 2/3s majority, whether this be in a Parliament or through a referendum, this is the case in any civilised society with a sophisticated political system. This is for good reason, significant deviations from a constitutional status quo usually require a clear and emphatic majority.
Now Brexit had a majority 52% of the participating electorate of the United Kingdom. That is 37% of the electorate as a whole, falling way short of this 2/3s majority, which would usually be required for a change of such constitutional significance. Both those figures fall way short of the 66% mark. Neither 52% nor 37% of the electorate can be equated with the will of the British people, infact when considered within the UK’s population as a whole, the 15 million that voted for Brexit looks very much less impressive. It is a mere 26% of the whole population. It is entirely unjustifiably to extrapolate that the will of 26% of the population is the will of the entire British people. That’s akin to saying that my legs are my body.
Note too, the perversity of invoking the will of the British People whilst excluding the vote of 16 and 17 year olds. Sure you can say that demographic would not have sufficient knowledge to vote on the subject. But is that really true? That defence should not be open to Brexiters anyway, expertise is no longer fashionable according Michael Gove – the hypocrisy of referring to remainers as elitist whilst denying the vote to others on the grounds of being too ignorant is apparent. How can Commonwealth citizens be allowed to cast their vote in the referendum? Are they part of the British people, and how can EU citizens be excluded if they are included, seeing they participate immensely to British society - it is they whose rights are most jeopardised by the vote.
Granted, it is possible to argue that including EU citizens and 16-17 year olds is gerrymandering, as it would have influenced the result to get a victory for remain. But surely, excluding them is gerrymandering too, seeing it affects the result the other way. Plus, if the Brexit argument was truly robust and beneficial, then why could they not be persuaded to vote leave too?
Even if we grant the point that Brexit is the will of the people, can this justify Theresa May’s Brexit? Had the referendum offered the choice between remaining in the EU and Theresa May’s Brexit, leave would never have carried the win. Given the fragmented nature of the leave campaign, with many different and irreconcilable visions of Brexit, is there even a majority for any kind of Brexit? The Reece Mogg, Liam Fox, free trade and low regulation Brexit is very different from that promised by Gove and Johnson. Is there a mandate for Brexit at any cost or the great many (and unpleasant_ social and regulatory reforms which will accompany Brexit? Is there a mandate for a hard border in Northern Ireland, seeing the question never really came up in the referendum but is a certain consequence of a hard Brexit, given the DUP’s confidence and supply agreement with Theresa May?
The answer to these questions is almost invariably no. Will a second referendum solve any of these difficulties? It is hard to see how, considering how the first has irrevocably toxified British politics and hamstrung our government from acting in the public interest by forcing it to at least pay lip service to the idea that Brexit will occur, even though this Brexit is lightyears away from its original conception. The problem too is that it is impossible to overturn Brexit, whilst “the will of the people” argument is a poor one, it is certainly persistent, has a nice populist flair and can easily be abused by politicians – notable too is how hard it is to argue against it. Yet, that is the dilemma the British government now finds itself in, forced to square a circle no one has made sense of yet. Humbly one could suggest a way forward however – May’s interpretation of Brexit is so different from the referendum Brexit that the term itself has become quite malleable.
As politics.co.uk editor Ian Dunt has suggested, perhaps it would be best see Brexit as an opportunity to reform our relationship with Europe, helping to create a Europe that is better for everyone. Europe currently stands at a crossroads, new Eurozone reform is badly needed, but the Europeans are unable to find any momentum to do so. Rather than the passive, unimaginative negativity displayed by the current government, Brexit could be used as an emphasis of Britain’s role in Europe, as the leader of nations interested in trade arrangements, whilst excluding themselves from further integration – whilst enthusiastically supporting other European countries in their further political and economic integration. Of course, such bold and inspirational policy towards Europe is characteristically un-British and has become less credible in the face of post-referendum partisanship. Britain continues to drag its feet when it comes to Europe, and this will not change with a second referendum or if Brexit is cancelled. As the saying goes, you don’t miss things until they are gone. It may be the only way to fix Britain’s Eurocrisis.