Referendum Redux?

A favoured Remainer strategy in the weeks and months since the Brexit vote has been to suggest essentially re-running the referendum, on the grounds that people were ‘lied to’. With the Tory government holding firm, the grounds are now shifting to disputes over the form and nature of Brexit. Former Prime Minister Tony Blair is the latest to suggest that, as the nature of the Brexit deal clarifies, people will have new information about weighing up the pros and cons, and should be allowed to vote again.

Ironically, given that Brexiteers are usually the ones accused of ignorance, those pushing this idea do not seem to understand how the Article 50 process works. As we have explained previously, Article 50 was designed to make it hard for states to leave the EU, precisely to deter them from doing so, by creating a ticking time-bomb. A departing member-state must first formally tell the European Council it wishes to leave. This triggers a two-year period of negotiations with the Council on a ‘withdrawal agreement’. EU Treaties cease to apply to the departing member-state either two years after this agreement or, if no agreement is reached, two years after the initial notification.

This makes it incredibly risky even to contemplate a second referendum once Article 50 has been invoked. Leaving the EU is, as Blair himself admits, ‘complex’. It will be challenging to negotiate an agreement by the two-year deadline and, with every passing day, the Council’s leverage over Britain increases as the risk of simply dropping out of the EU without any agreement increases. What Blair and others are then proposing is that, when the agreement is finally reached – towards the end of the two-year period – we then have another vote on that agreement, whether in parliament, or in a second referendum. But what happens if the agreement is rejected? We cannot return to negotiations unless the Council agrees to prolong them beyond two years – and it is unclear why they would do so. Nor do we simply return to the status quo ante. At the two-year deadline, the EU Treaties would simply no longer apply to Britain: we would no longer be an EU member.

So the vote would not be a choice between the agreement reached and continued EU membership. It would be between the agreement struck and crashing out of the EU with nothing more than World Trade Organisation rules to govern Britain’s future relations with the Union. This is no choice at all. Indeed, the sheer unattractiveness of the latter option would probably result in an overwhelming, albeit begrudging, endorsement of the former.

Another option, Blair seems to think, is for a vote when the government’s negotiating position is finalised, prior to negotiations. However, this initial position cannot guarantee what Britain will actually get after two years of negotiations. The people would thus be asked again to vote on something whose exact outcome is uncertain – yet this is supposedly what invalidates the first referendum. Furthermore, what would happen if the people rejected the government’s position? Blair’s hope is that we would just forget the whole idea of leaving. But this leaves no space for voters to express a third view: that Britain should still leave the EU, but the government’s proposals are unsatisfactory. This would be another Hobson’s choice for Leave supporters: to defend their basic preference they would be forced to endorse a programme they dislike; or, if they think the programme is so awful, they would have to betray their initial position. Indeed, this is precisely the hope of Blair and his ilk. Clearly this would simply incentivise ‘spoilers’ to promote a bad negotiating position that will induce voters to opt to remain.

All this exposes the real limitations of referenda as an instrument of democratic governance. As Remainers are wont to note, referenda offer a simple yes/ no choice. They do not allow for nuance or qualifications. They are useful at times as a consultative mechanism, to obtain the public’s basic preferences on fundamental and/or constitutional matters that parliament feels it cannot decide. But all they do is convey that basic preference in a yes/ no form. The indispensability of representation consists in the fact that it will always be for political parties and leaders to interpret what that yes/ no response means in detailed practice.

Rejecting change is always easier to interpret, because it involves perpetuating the status quo. But embracing change is inherently open-ended. In the Scottish referendum, a ‘no’ vote meant keeping Scotland within the UK; a ‘yes’ vote meant ‘independence’ – which could mean just about anything. It was down to the Scottish National Party to define what ‘independence’ actually meant in practice. Ditto, Brexit. The trouble, as we have pointed out, is that the miserable Leave campaign failed to articulate any clear vision; hence, it fell to the government to define what Brexit meant in practice. Many people may dislike this – but it is unavoidable. Someone has to interpret what ‘yes’ means.

Clearly, a referendum is not a helpful way for people to express their views on this interpretation, because it does not allow people to disagree with the government’s interpretation without being forced to embrace an alternative that they also disagree with. This offers electors no real choice at all.

Yet, the way the government is going about interpreting Brexit is also unacceptable. Following a massive exercise in popular participation, the political process has again contracted to narrow elite manoeuvring: Theresa May consulting the leaders of the devolved regions; ministers being lobbied by elite business organisations; and intra-governmental squabbles and slap-downs, revealed by occasional leaks. This allows Brexit to be interpreted around narrow, elite interests, and whatever the deeply unpleasant Tory Party thinks will maximise its electoral advantage – including vile and idiotic nativist sloganeering designed merely to appeal to the anti-immigration segment of the Leave vote and undermine both Labour and UKIP.

What is missing is for all voters’ detailed views and aspirations to be represented in a deliberative process that can meaningfully shape the outcome. That cannot happen if government is closed or secretive, nor if people are merely offered a straight yes/no vote after a secretive process. What is required is for parliamentarians and political parties to engage in grassroots discussions with as many individuals and groups as possible, and develop the results into a broad programme for Brexit and Britain’s future. If broad consensus is impossible, parties should develop competing platforms and either debate them in parliament (as 73% of people are demanding) or put them to the people to decide through a general election. That is how representative democracy is supposed to work.

The crisis of representative democracy that makes such a basic process unlikely to happen, however, is reflected in the apparent inability of parliament to perform a constructive, deliberative role. The government’s reluctance to consult parliament on its negotiating position is not merely because it fears a Conservative split. It is also because it knows full well that 75% of MPs are Remainers and many would like to spoil Brexit. The case currently before the Supreme Court, which will determine whether parliament or the executive has the right to invoke Article 50 (incidentally, the public supports the PM), is not a struggle to shape the terms of Brexit, but a rear-guard attempt to empower parliament to stop it happening. In that sense, by refusing fundamentally to accept the referendum outcome, Remainers are denying a role for themselves – and everyone else – in shaping what Brexit really means.

Lee Jones