The Government’s actions based on the 2016 referendum’s outcome were politically illegitimate
It is plain to every impartial observer that Brexit is a disaster, and promises yet worse. The harm to the UK, already happening and already mounting in ever larger quantities, is as clear as day. In any rational order a stop would have been put to the madness by now. But a dysfunctional cabal of people at the centre of both government and opposition are currently persisting with it, against all reason, evidence and advice, and against what is now clearly a majority in the country opposed to it.
These latter considerations mean not just that Brexit has to be stopped, but that it will be stopped. The question is, how? The answer is as follows…
There are three mechanisms available for stopping Brexit. One is a Government announcement that it is withdrawing the Article 50 notification and that the UK is remaining in the EU. The second is a vote in Parliament, most simply on an Early Day Motion instructing the Government to withdraw the Article 50 notification. These are the two simplest, quickest and most straightforward mechanisms; both are entirely feasible, and both are fully warranted.
A change at the top of government – inevitable soon anyway – that brought into office people from the rational part of the Conservative Party could result in a government withdrawal of the Article 50 notification. That would make the first mechanism effective.
A brave and principled individual MP who called on the Remain majority among his or her fellows to rise to the defence of our country’s interests could, if they responded to the call with equal courage and principle, by a single vote oblige withdrawal of the Article 50 notification. That would make the second mechanism effective.
The third mechanism is another referendum on EU membership. The 2016 referendum was constitutionally flawed, and the actions taken as a result of it by the Government then in place were politically illegitimate. Understanding these two points tells us not only why a second referendum is required if either of the first two mechanisms is not employed, it also tells us how the second referendum must be structured.
The 2016 referendum was constitutionally flawed for at least three reasons. It had a deliberately restricted franchise that excluded three groups of people with the most material interest in any outcome – 16-17 year olds, expatriates of more than 15 years’ residence abroad, and citizens of other EU countries living and working in the UK. Secondly, because it was about a constitutional matter it should have had a supermajority bar in place, but it did not. This is a necessity for any referendum on such a major and consequential issue.
Thirdly, the formulation of the franchise and the nature of the required majority was inconsistent with each of the last two referenda held in the UK, and inconsistency is a mark of constitutional inadequacy because it accords different rights, powers and weightings to voters and their votes on the different occasions, which in a democracy is unacceptable.
The Government’s actions based on the 2016 referendum’s outcome were politically illegitimate likewise for three reasons. One was that the referendum was explicitly and expressly advisory but was not treated as such; MPs were told both before and during debate on the Bill for the referendum that it did not bind them or the government either way – and yet the Government immediately and without further questioning treated itself as strictly bound.
The second reason is that the referendum’s outcome did not confer a mandate for constitutional change even without a supermajority bar, since only 37% of the (restricted) electorate voted Leave, and that, by any stretch of the imagination, is woefully inadequate for major constitutional change such as leaving the EU and stripping UK citizens of important rights.
And the third reason is that the Government deliberately tried, and at length succeeded, in subverting the sovereignty of Parliament by selling the idea that – presumably temporarily through the referendum vote? – the proportion of the referendum vote that was for Leave was sovereign over Parliament. That, of course, is a nonsense.
Taken together, all the foregoing makes it imperative that, if either of the first two mechanisms is not employed – they are the obvious and easiest ones and should be employed – there must be another referendum. And this time it must be based on a proper franchise and it must have a supermajority bar.
The proper franchise would include the three important groups deliberately excluded from the first referendum – 16-17 year olds, all British expatriates, and citizens of other EU countries living and working in the UK.
The supermajority bar should be a two-thirds majority of votes cast, or a specified minimum of the total electorate. To make it consistent with the 1979 Scottish devolution referendum, that minimum would be 40% of the total electorate, a very low bar (Parliament requires of itself a 66% majority for an election to be called! – this is because of the potential consequences of an election for major change: how much more major might a change be in an EU referendum!). Even this low bar would not have mandated Brexit in the 2016 EU referendum; only 37% of the electorate – though a restricted electorate, to repeat – voted Leave (a mere 26% of the population). Arguably, it should be an accepted minimum standard that constitutional change should require more than 50% of the total enfranchised electorate. But whatever bar is specified, there should be one.
Finally, if there is another referendum anyone campaigning for Leave should be required to produce a costed plan, with details, evidence, facts and worked-out evaluations of what and how the UK will manage post-Brexit. What kind of Brexit? What does the Leave campaign have in preparation for future deals on international trade and services, and on what terms? Who have the Leavers spoken to in the international community and what assurances and prospectuses for these matters and the economy generally can we expect to see in place after a Brexit? Leave should publish them so that voters can consider them. Would there be transitional arrangements, and what would they be? What are the carefully costed and publicly scrutinisable consequences for employment, migration, the environment, taxation, the NHS, educational and scientific collaboration, air travel access, financial services, maritime relations, tariffs, standards, international security arrangements, military co-operation, treaties, visas, and relations with the EU itself and other countries? The Leave campaign should publish these so that we can know what to expect. In the EU referendum campaigns of 2016 the Leave side produced no such information – indeed, no information! – no plans, no costings, and no details. It offered only slogans, distortions, false promises, vague gestures, and some disgraceful examples of xenophobia verging on racism.
The Remain campaign was lacklustre because it did not expect the outcome, but its so-called ‘fear’ agenda has already proved to be a considerable understatement. Next time round the many and major advantages of EU membership with its collaboration, co-operation, progress, economic advantages, and shared civilisational values will rightly be to the fore, even though we already know well, for the facts are available to all and have been for 40 years, what those great advantages are.
And if there is another referendum there has to be complete transparency about all the money and all the lobby groups involved in the campaigns, including the Big Data companies trawling social media in order to hypertarget messages at, and manipulations of, groups of voters. Anyone giving over a certain level of money to either campaign should be publicly named. Tabloid newspaper claims and propagandising should be subject to challenge; any newspaper making claims and assertions outside its opinion pages should be obliged to publish equally prominent corrections when relevant.
If there is indeed a second referendum, nothing less than the foregoing should be acceptable to the British people, all of whom, whatever their views, should wish to see a proper and thoroughly democratic evaluation of the national opinion about EU membership. The fact that we know right now that such a referendum would without question result in a substantial Remain majority should be enough to make Government and/or Parliament see that one of the first two mechanisms is so much more sensible, because quicker, less expensive – and such obvious good sense.
By the way: I challenge anyone to refute or answer the foregoing points, point by point; to state the reasons why none of the three mechanisms is possible or desirable; to defend the constitutional and political propriety of the 2016 Referendum; and to defend the Government’s actions since. I have issued this challenge several times, including in individualised letters to MPs. No-one has taken it up. I re-issue the challenge again now.
Most MPs are Remainers. They shrink from acting in the country’s best interest out of a deeply misguided claim to wish to ‘respect the Referendum’, yet at the same time they are anxiously looking for an excuse to stop Brexit that would keep their parlous democratic credentials intact in light of that ‘respect’ view. So, another referendum would allow them, with infinite relief, to ‘respect’ the second outcome and thus escape the disaster of Brexit.
But of course the outcome of the 2016 Referendum should emphatically not be respected, for the reasons set out above and endlessly iterated elsewhere; namely, that it gave no mandate for Brexit. There has never been a mandate for Brexit. If the Government by the first mechanism, or our MPs by the second mechanism, do not stop Brexit and the incalculable harm it is already doing, then because they would have let us down, another referendum becomes obligatory. That fact in itself is a resounding statement of the failure of our political order, right from the drafting of the 2016 referendum Bill until now. Putting it right is already woefully overdue: one of these three mechanisms must now be implemented.