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Why the People’s Vote is a Bad Idea by Bryn Harris

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Written by Bryn Harris

Bryn Harris proposes five reasons why the People’s Vote is a bad idea. It is unfair; too late; inappropriate; undemocratic and self-defeating. The supporters of this proposal have fooled themselves that the term ‘People’s Vote’ is more than a pitifully transparent euphemism for ‘second referendum’.

Last Saturday 100,000 people attended a march through Central London to demand a ‘People’s Vote’ – that is, a referendum to decide whether the UK accepts the withdrawal agreement between the EU and UK, and leaves, or rejects it, and remains.

Despite the large number of people in attendance – a tally which, as any fair-minded Brexiteer should accept, was not unimpressive – the proposal for a second referendum remains a fundamentally bad one. Bad enough, one suspects, that the millions of reasonable and fair-minded people in this country will reject the proposal outright.

Here are five reasons why they should do just that.

  1. It is unfair

The People’s Voters propose a two-referendum process to decide whether the UK should leave the EU or remain in it. There should, they say, be one referendum to decide whether we leave or stay (we all know the result of that one) and a second to decide whether to accept or reject the final withdrawal deal struck between the UK and the EU.

Leaving aside the question of whether a referendum is a suitable mechanism for approving the withdrawal deal, this could just about have worked – but only, however, if it had been proposed from the start. When we voted in 2016, the understanding was that the referendum would be decisive. If we decide now that the 2016 referendum was in fact only a provisional decision, to be reviewed at a later stage, then we change the terms on which people have already voted. We shift the goalposts – what was understood at the time as a decisive vote becomes, after the fact, merely provisional.

It is unfair in the same way that it would have been unfair to change the wording on the ballot paper after the votes had been cast.

The unfairness isn’t merely notional, though even its unfairness in principle is enough to damn the proposal of a second referendum. The result of a second referendum would be that one side, the Leave side, would be deprived of an advantage they should have had – they should have been able to argue to voters that a vote to leave was worth risking, because it could be reviewed in a second referendum after we knew the terms of the deal. If the deal was bad, then a voter could choose the ejector seat, even if he or she had voted to leave in the first referendum.

It is highly likely that, had this been the proposal been made properly, i.e. before the 2016 referendum and not after it, then more voters would have risked a vote to leave. A significantly larger winning margin would have resulted in a radically different post-referendum landscape. Would Anna Soubry resist Brexit so vocally if the margin had been 60-40?

The crucial point is that there are no special circumstances justifying the shift of the goalposts. There is no reason why a second referendum be proposed now, rather than prior to 2016 when it should have been proposed. A second referendum would be acceptable, even desirable, if there were some major change in the facts, such that the assessments made by voters in 2016 were no longer applicable. However, there has been no major change in the facts. The People’s Voters want to vote on the deal, which was always the likely outcome of leaving the EU.

The People’s Voters are out of time. The proposed second referendum would be an unfair, retrospective alteration to the terms on which people voted.

  1. It is too late

The People’s Voters are proposing quite a radical innovation. In elections, voters choose a party to go ahead and carry out their manifesto promises. Five years later, sometimes sooner, a new mandate is issued. In referendums, voters tell the government to go ahead and do something. The People’s Voters propose, novelly, a first referendum to instruct the government to leave the EU, or stay in it, and then, in the event of a leave vote, a second referendum to review how well the government has carried out the instruction to leave.

There are clear theoretical problems with using a second referendum to mark the government’s homework. First, if a government knows there will be a second, reviewing referendum (which wouldn’t be the case with the People’s Vote after-the-fact ambush) then it likely won’t act with any certainty or decisiveness in executing the instruction delivered in the first referendum, as it might anticipate an imminent reversal of the decision. Second, the opposite might transpire – in executing the first mandate, the government takes steps which are either impossible, or highly undesirable, to reverse, thus rendering pointless a second referendum that offers to undo what was decided in the first.

This is, of course, what has actually happened. Article 50 has been triggered, and it seems very unlikely that the UK can unilaterally revoke it. The Court of Justice of the European Union is the sole body that can decide on the revocability of Article 50 notification. Even finding the opportunity to get the CJEU to hear the question seems unlikely.

It is possible that the EU27 could unanimously agree to revoke the UK notification, though this too could be challenged in the CJEU, to say nothing of the political challenge of securing unanimous revocation.

So the second referendum proposed would promise something that is, in all probability, impossible.

Even if, against all the odds, Article 50 revocation proved possible and there were time to hold a referendum before the UK’s scheduled exit in March 2019, it is questionable whether remaining in the EU could possibly be as desirable now to the 48% as it was in 2016. If the only option to remain an EU member would be for the UK to rejoin anew, how many would be happy to accept the euro as the UK currency? And even if the UK could remain rather than having to rejoin, how many of the 48% would still view the EU as a benevolent organisation following its conduct during negotiations?

It is too late to hope the referendum result, and its subsequent implementation and all its consequences, can be rewound. The toothpaste is out of the tube. The only way to have prevented this would have been for remain supporters to have won the argument about our membership of the EU in 2016. Unless something very unexpected happens, that failure to win will remain an insurmountable obstacle to the People’s Voters.

  1. It is inappropriate

ManyRemainers have argued that a referendum was always an inappropriate method to decide our EU membership. The economic and legal details are too technical, they argued, and the UK’s political culture too permissive of exaggeration and outright deceit.

This argument relies on a questionable notion of how adversarial politics and a free press function in a democracy. Even taken on its own terms, however, the argument speaks loudly against a second referendum.

If the Brexit question was too technical to be resolved by a popular vote, then the proposed second referendum, in which voters would be asked to compare and contrast the merits of the EU treaties versus the terms of the withdrawal agreement, would be, a fortiori, even more unsuitable for a popular vote.

The proponents of the People’s Vote, in many cases, defeat themselves on their own terms. If they truly hold to those terms, then a second referendum could only be an orgy of mischief from the red-top and the red buses.

However, even if we take a more reasonable position on the role of referendums in our democracy, the People’s Vote is still a bad idea.

The virtue of referendums is that they ensure that the fundamentals of our constitutional order have consent from those governed by them. When those fundamentals become so controversial that consent to them cannot be assumed, we ask the people directly whether their consent is given, or withdrawn. Provided we believe in the necessity of government by consent, only voting citizens themselves are competent to answer this question, just as voters alone are competent to decide who represents them in Parliament. Consent cannot be given on their behalf. In cases where a general election could not give a clear answer on the issue, a referendum is necessary.

It could, perhaps, be argued that the withdrawal agreement will involve constitutional controversy, because it will involve the continued direct effect of EU-derived law in the UK, and the continued jurisdiction of the European court (to an extent yet to be determined). Having rejected those aspects of EU governance in the 2016 referendum, one could argue, voters should be asked if they consent to their continuation, albeit in modified form, after Brexit. The proposed second referendum would fail even to meet this arguable ground for a second referendum, as it would give voters no option to reject this degree of EU oversight, even if their intention in voting Leave in 2016 was to reject EU governance outright. They would have the choice to accept more EU governance than they voted, or vastly more than they voted for – which is to say, they would have no choice at all.

There is no convincing argument that a plebiscite is necessary to determine the relative merits of one treaty with the EU, with the UK as a member, versus another with the UK as a third country. It is not a question that voters are uniquely competent to answer – in fact, it is overwhelmingly likely that voters are less competent to answer that question than ministers acting on the advice of civil servants. This is well within the competence of government, and its exercise of that competence is to be evaluated and held to account in the usual democratic way – by Parliament.

The People’s Voters seem to labour under the fallacy that, because a referendum was a suitable mechanism for deciding the issue of the UK’s membership of the EU, it must be suitable for subsequent decisions regarding that issue. This is a misunderstanding. The suitability of referendums is determined by the type of decision made – does it concern consent to government? – not by the specific issue being decided.

  1. It is undemocratic

Supporters of a second referendum argue that democratic decisions are not frozen in time. They can be revisited. This is clearly right, otherwise the result of the 1975 referendum would have defeated any argument to hold another one in 2016.

Where the People’s Voters fall down, however, is their failure to acknowledge that, without a good reason for it, a request for a second decision inevitably weakens the authority of the decision-maker. If the decision of a judge, or an umpire, or an electorate is not decisive enough to be final, absent error or irregularity, then there is little purpose in appointing them to make decisions. Their decisions will then have no certainty, no directive force. Their power will instead be merely provisional, and to be exercised at the whim of those who should properly be bound by the decisions of the decision-maker.

When the facts change radically – for instance, if a trade bloc metastasises into a nascent federal state – then the electorate’s authority as decision-maker would not be undermined if asked to decide again, because they would be asked to make a new decision, on new facts. The grounds for asking again would be substantial, and not mere capricious optimism, or presumptuous distaste at the first decision.

Similarly, if the Brexit process results in circumstances that couldn’t have been reasonably foreseen by voters in 2016, then those too could, arguably, be grounds for saying that a new decision is called for.

However, nothing of the sort has happened. It was always known, or predictable, that there would be a negotiation, that it would be bruising, that the EU might be somewhat doctrinaire, and that the UK government might bungle it.

There is a democratic remedy for the latter mishap, in the form of ministers’ accountability to Parliament for their conduct in negotiations and, if it comes to it, in the form of a no-confidence vote. It would be wildly disproportionate to choose, instead, to undermine the decision made by voters in the 2016 referendum.

Democracy means that citizens – yes, ‘the people’ – have power as decision-makers in crucial assigned roles. Our parliament gave citizens power to decide whether we remain in the EU or leave it. It cannot now impugn that decision-making power without rendering democracy in this country shabby and dishonourable.

  1. It is self-defeating

The People’s Vote is a paradigmatic example of the foolish man who abuses his tools and then expects to be able to rely on them. As a second referendum will impugn the determining power of the referendum that came before it, on what grounds do campaigners expect that their second referendum will escape the same fate? The People’s Vote is motivated purely by a single desirable outcome, rather by any sort of principle, but it is hard to see how a second referendum could avoid laying down a principle – ‘referendums are provisional and undecisive’ – that would also undermine the result of the second referendum. At which point, the wearying spectre of Neverendum looms.

It is also likely that any fair second referendum question would have to depart from usual referendum practice and pose more than two options, thus risking a hopelessly indecisive three-way split. This is because a second referendum would need to ask whether we accept or reject, and whether the leave or remain in the EU.

The People’s Vote proposal to elide the two questions in this way, so we can either choose to accept the deal and leave, or reject it and remain, means that voters will face an artificially restricted choice. Those who want to leave will in fact have no meaningful say on the deal – if they want to stick by their 2016 decision to leave, they will have no option but to accept a deal, even if it is an objectionable deal. Those still favouring Remain, however, will face no such unconscionable arm-twisting – despite the fact that remaining is the only option that, properly speaking, has been removed from the menu by virtue of the 2016 vote against it.

If the People’s Voters want voters to have a meaningful say on the deal, they will have to be a little fairer than that to the winning side of 2016.

The problem is that even doing the fair thing would be impracticable – a fair ballot paper offering a choice, between 1) reject and remain, 2) reject and leave, and 3) accept and leave, would be far too likely to produce an indecisive split vote. If, as polls suggest, the leave-remain split has budged little since 2016, then a 48% minority could take us back into the EU (by whatever mechanism that might be possible) with the Leave majority split on the question of the deal.

There are no foreseeable scenarios in which the outcome would not be uncertain, unfair, or both.

Conclusion

How has it come about that so many of the country’s best and brightest have supported this broken-backed, unworkable proposal?

‘Sheer despair’ is one answer.

Back-to-front thinking also plays its part. The People’s Vote proposition does not start out from the premise of doing what is fair, or democratic, or workable, or constitutional, or logically coherent. It starts from the premise that Brexit must be stopped, at any and all costs. The arguments for the second referendum are then retrofitted around this premise, no matter how incoherently or opportunistically, in order to give it at least a veneer of democratic respectability.

The supporters of this proposal are fooling themselves if they think voters won’t perceive the basic unfairness of a second referendum – just as they seem to have fooled themselves that the term ‘People’s Vote’ is somehow more than a pitifully transparent euphemism for ‘second referendum’.

One doesn’t need to be an economist, or a QC, or a CEO to tell apart the fair from the unfair. Nor will any amount of technocratic savoir faire magically turn the latter into the former. Professor Sir Robert Tombs was overwhelmingly right to point out that the powerful clique of Professional Remainers reduce Brexit to a matter of technicalities, and flee from ethical issues such as democratic sovereignty and fairness. One must hope that fruitless calls for a second referendum will be as far as this folly takes them.

Bryn Harris is a Classics graduate from Oxford, converted to law and recently called to the Bar. He is a director of the Speakers Corner Trust

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Bryn Harris