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A Second Referendum: Misleading Claims and False Temptations

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Written by Sir Noel Malcolm

Oxford historian Sir Noel Malcolm analyses some of the specious arguments that continue to be made by the so-called ‘People’s Vote’ campaign.

The ‘Leave campaign promises have been broken’ argument, the ‘trying to leave has turned out to be too difficult’ argument, and the ‘we’re only doing what Leave campaigners would have done if the referendum vote had gone the other way’ argument. He also considers the idea of a ‘Mrs May’s deal versus no deal’ referendum – a scenario which may be justifiable in theory, but would be a fateful error in practice. The best response to the ‘People’s Vote’ campaign is not to imitate it in any way, but merely to expose its deceptions..

Reports of its death are greatly exaggerated

The prospect of a second referendum on Brexit seems to have receded a little, with Jeremy Corbyn’s refusal to include any straightforward promise of such a referendum in the Labour manifesto. But he still allows talk of a ‘confirmatory referendum’ in the event of there being something called a ‘Tory Brexit’; and meanwhile the untiring efforts and large-scale expenditure of the ‘People’s Vote’ campaign continue. So, it is much too early to conclude that this is no longer a live issue.

Some of the obvious points that need to be made have been put forward so often that there is no need to elaborate on them here. We all know that the 2016 referendum was not a challenge to parliamentary authority; it was chosen and legitimated by Parliament itself. We all remember that the government leaflet, sent just before the campaign to every household in the country, said: ‘The referendum on Thursday, 23rd June is your chance to decide if we should remain in or leave the European Union …This is your decision. The Government will implement what you decide.’

We also know that almost all the major organisations that back the ‘People’s Vote’ campaign have actively lobbied for the UK to remain in the EU (see https://www.telegraph.co.uk/news/2018/12/15/eight-nine-organisations-backing-peoples-vote-campaign-actively/). Their constant public assurances that the ‘People’s Vote’ campaign takes no view on the desired outcome are therefore especially disgraceful, given the high tone they adopt when talking about ‘lies’ told by the Leave campaign in 2016.

Three misleading claims

But there are other points which are made less often yet are no less important. Here, in brief, are three of them.

The ‘promises’ argument

First, it is often said (by politicians, journalists, and especially BBC correspondents and commentators) that the people of the UK are now discovering that the ‘promises’ made to them by the Leave campaign were false – a claim which, if accepted, seems to give strong support to the idea of a second referendum. But this claim is fundamentally wrong, for a simple reason: nobody made ‘promises’ in the referendum campaign. They did not, and they could not.

People make promises in an election campaign, when their message to the voters is: ‘if you vote for me, and for a sufficient number of other candidates of my party, we shall form a government, and, in that case, these are the policies that we promise to carry out.’ A referendum campaign is not an election campaign; it merely seeks to persuade people to vote for or against a particular change. Being on the winning side of that argument, and being in charge of government policy thereafter, are two quite different things, with no necessary connection between them.

Besides, the fundamental arguments on the Leave side were about what people thought was right or wrong in principle: the rightness of living under laws made by your own elected lawmakers; the wrongness of being unable to control your country’s immigration policy. Factual predictions did not play a large role on this side (unlike on the Remain side, where George Osborne’s predictions of an instant recession and the rapid loss of 500,000 jobs carried real weight; 43% of Remain voters voted primarily on the basis of economic projections). And even if factual predictions had played a major role on the Leave side, they still could not be described as ‘promises’.

Indeed, one might add that even if the things that were said are mis-described as promises, it is still hard to see how they can be said to have been broken. The main prediction made by some on the Leave side was that in the medium to long term the economy would benefit by being freed of EU protectionism and costly regulations; at the moment we are nowhere near the stage where the truth of any such prediction can be tested. And while it is true that some Leave campaigners said that a withdrawal deal beneficial to both sides could easily be obtained, that proposition  has also not been tested, since the strategy used by the May government has fundamentally diverged from the one they would have applied. Nobody knows whether, if a British government had prepared seriously and openly, from the start, for a departure on WTO terms, while negotiating hard for an enhanced free trade deal with the EU, we would by now have left on much more satisfactory terms – though it’s hard to see what could disprove that supposition. But this brings us to the second point that needs to be made.

The ‘difficulty’ argument

We now hear it said quite often that we must have a second referendum because nobody realised how difficult it would be to negotiate a viable withdrawal agreement: the extreme intransigence of the EU negotiators is a ‘new fact’, which means that the whole situation must be reassessed. The answer to this was given several months ago by Professor Richard Tuck, a contributor to Briefings for Brexit, when he pointed out that this ‘fact’ was really an ‘artefact’ –  not an inevitable feature of the way things are, but something deliberately created. And why was it created? Because of the possibility of a second referendum.

Here is a simple thought experiment. Imagine that the UK had a written constitution which said it was not permitted to hold another referendum on the same issue within ten years of the first referendum. Does anyone really think that the negotiating strategy of the EU would have been the same in that case? As has become increasingly clear, the Brussels strategy has aimed at giving the UK such unacceptable conditions that a political crisis would ensue, leading either directly to a second referendum or to a general election and a Labour government committed to holding a second referendum. (What makes this clear is the refusal of Brussels to compromise on the Irish backstop, even after Barnier and others have admitted that in the event of a ‘no deal’ Brexit, rather than impose physical controls at the Irish border, they will find technological alternatives – which is precisely the idea, previously dismissed as ‘magical thinking’, that British politicians have been pressing for when demanding a change to the backstop.)

For nearly three years now, there has been a stream of VIPs – Tony Blair, Peter Mandelson, Nick Clegg and others – travelling from this country to Brussels in order to give their advice on how best to keep the UK in the EU. A second referendum must surely have been a key element in that planning right from the start; just think how different their advice would have had to be if, as in the thought experiment, no such manoeuvre were possible. So when people say that we must have a second referendum because trying to carry out the decision of the first one has been so ‘difficult’, they are guilty of huge and systematic disingenuousness. The ‘difficulty’ they allude to exists, to a significant extent, for the sake of the second referendum, and not the other way round.

The ‘but they would have done the same’ argument

The third point concerns another claim which has often been heard from hard-line Remainers during the last 35 months. ‘Nigel Farage, Boris Johnson and others’, they argue, ‘were quite unashamed in saying before the referendum that if they lost, they would continue to campaign for Brexit. So why should anyone complain when we do the equivalent?’ Despite its superficial plausibility, this rests on a simple failure to think about the asymmetry between the two scenarios. The asymmetry is a matter of implementation time. If Remain had won the referendum, David Cameron could have stood up and said (as soon as the results had been officially declared) that the UK was therefore remaining in the EU. Implementation would have been almost instantaneous – certainly before the end of 24 June 2016. The simple and obvious difference, in the actual case of a Leave victory, was that implementing the decision of the referendum was going to take time – an undetermined length of time up to the triggering of Article 50, and then up to two more years.

The fundamental point here is that when a government and a parliament hold a referendum, with solemn statements that it will be decisive, they are committed to implementing the decision it makes. In the case of the 2016 vote on Brexit, that implementation will and must consist of our departure from the EU. After the referendum decision has been implemented in that way, it will be entirely legitimate for pro-EU campaigners to start political action again to try to persuade the people to vote the other way at some future time – just as it would have been entirely legitimate for Leave campaigners to start again after a Remain vote had been implemented on 24 June 2016. This really is a fundamental point, not a quibble; there is a world of difference between trying to persuade people to revisit, and eventually reverse, a democratic decision once it has been made and implemented, and trying to prevent a democratic decision from being implemented at all.

A second referendum of a second kind?

To conclude: there are no good arguments for holding a second ‘Remain-Leave’ referendum, and the specious nature of some of the commonly stated ones needs to be exposed every time they are used. But is there a case for holding a different kind of second referendum, where the choice would be not between Remain and Leave, but between Mrs May’s deal and the so-called ‘no deal’?

Where matters of political principle are involved, there seems to be only one basic reason why no such referendum should be held. It is that in our modern constitutional tradition, referendums are called not on questions of policy but only on fundamental constitutional issues, such as whether Scotland should have its own legislature, whether the voting system for our general elections should be changed, and whether we should be under a supranational European government. The choice between Mrs May’s deal and ‘no deal’ is, although weighty in many ways, not at that level of constitutional importance.

But these are unprecedentedly strange and difficult times. Might it be a good idea, in these special circumstances, to push for a second referendum of this type, on the grounds that the national interest requires a positive decision on how to leave the EU – a decision which Parliament is now apparently incapable of making?

This may in some ways be a tempting route to go down; but the temptation should be resisted. The well-established and well-funded ‘People’s Vote’ campaign contains too many clever and unscrupulous tacticians, who would seize on this as a marvellous opportunity. If a serious campaign for a ‘May’s-deal vs. no deal’ referendum began to gather support, the ‘People’s Vote’ lobbyists would be quick to declare that momentum was growing for their big idea, combining the opinion poll figures for the two distinct ideas and eliding the essential difference. It’s all too easy to imagine the parliamentary tactics that would follow: a two-stage procedure, where MPs would vote first on whether to have any second referendum at all, and then on which type – with the ‘People’s Vote’ campaigners confident that they would gain a majority on the second vote.

The one thing we can be sure of is that the ‘People’s Vote’ lobby will use every possible trick at its disposal. After all, its very name is a trick, cynically played on the genuine People who cast their vote in June 2016. The best response to this campaign is not to imitate it in any way, but merely to expose its deceptions – including the three false arguments analysed above. Asking these lobbyists why, if they think we need a second referendum, they are not calling for a simple choice between Mrs May’s deal and ‘no deal’, is also a perfectly legitimate way of challenging them. But actually to call for a second referendum along those lines would be a fateful error.

About the author

Sir Noel Malcolm