The author of this article is Sir Noel Malcolm


This article was first published in ‘Briefings for Brexit’ and we re-publish with their kind permission


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Continuing from Part I which was published here yesterday:

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.


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