When Edward Heath’s government took us into the “Common Market”, they should not have done it without a full and fair referendum. It was a major constitutional change. It should not have happened without the government of the day ensuring that they had explained its full implications to the electorate and had obtained their specific approval. They did not follow this correct procedure, because they knew perfectly well that the electorate would not endorse their proposal. The electorate would have refused to follow the government’s lead.
If the UK application by the Government had been endorsed by a fairly conducted referendum, nobody could have complained, as we now do, that Britain was taken into the EU by stealth. But in law, it would not have been the referendum which ratified our membership of the European group. The referendum would have been a way of making quite sure that the government’s policy had the support of the electorate. But in law, the great constitutional change would have been accomplished – as in fact it was accomplished – by Act of Parliament. Referendums decide nothing in law. British laws are made by Act of Parliament, not by referendum.
This is important, because at the time of the Scottish referendum, the likely result was discussed in terms which suggested that its result would be binding. If in fact the Scots had voted for independence, nothing would have changed in law unless and until the separation of Scotland had been enacted by a British Act of Parliament. This might well not have followed at all. When a partnership is broken up, the interests of both parties have to be considered. The government and parliament of the UK are responsible for maintaining the unity of the UK. If that unity has to cease, the interests of England, Wales and Northern Ireland have to be considered as well as those of Scotland. A break-up of the UK would be very harmful to the strategic security of England. Any responsible London government should certainly resist Scottish independence very vigorously, in the interests both of Britain and specifically of England. So we really just don’t know what would have happened if the Scots had voted in favour of independence.
[envoke_twitter_link]Referendums are not binding in law[/envoke_twitter_link]. Nevertheless, it seems quite possible (without access to the right research we don’t know) that most voters think that when they cast their vote in the EU referendum, they will actually be making a decision for or against continued British membership of the EU. This places a great responsibility on their shoulders. If a NO vote is to actually trigger a British withdrawal, there will be all kinds of implications and problems, some immediate, some at a later stage. Yes, it would of course be the right decision in principle. But decisions in principle have to be translated into practice. The electorate dimly knows this and is quite reasonably apprehensive.
Not every elector will think the situation through in quite these terms before casting his or her vote. But the recent survey carried out by Survation makes it pretty clear that British attitudes towards the EU are predominantly negative but that many people will vote against leaving the EU, even though they are opposed to membership of the EU in principle, because they are “afraid of the potentially disruptive risks of ending our membership”. In other words, because they feel unable to take a decision in favour of a leap into the dark. And it seems possible, even likely, that these fearful votes will be enough to prevent the No side from winning the referendum.
But let us suppose that the No side does win. How will David Cameron’s government actually proceed if the referendum goes against EU membership? We know, of course what will happen. There will be fudge and delay – for two reasons. Firstly, because our current government believes (wrongly of course) that British EU membership should continue, but secondly because it would be a difficult task for a government opposed to Brexit to carry an efficient and favourable Brexit deal into practice. Constitutionally, the correct thing for the Cameron government to do would probably be (if necessary repealing legislation on fixed parliamentary terms first) to dissolve Parliament and call an election. They could then say to the electorate “We can’t do this for you. You must change your mind about EU membership, or you must elect a government which can put your Brexit into practice.” Of course Cameron’s government will not follow this course. Instead there will be fudge and delay.
Thus we have got ourselves into a situation where the British electorate is perfectly well aware of the desirability of leaving the EU, but very probably a majority will be reluctant to vote “No” in the referendum; and even if the majority vote is No, that referendum decision will probably not be enough to end our EU membership. What is the answer to this problem?
Consider the very different situation where the government of the day campaigns to leave the EU. No responsible government could do that without having made detailed contingency plans for the moves towards Brexit, to be acted upon as soon as the referendum result is known. They would need to be well publicised in advance and everything would be done to build up public confidence in them – and in the Government’s ability to handle the situation. So whereas from where we are now, a No vote would seem very much like a leap into the dark, by contrast with a pro-No government in power, the way ahead would inspire far more confidence and a No vote would be easier to get.
It’s good that we have at last got a referendum and it will of course be even better if we can get the right vote in it. But there is probably only one way to get out of the EU: by electing a government which is determined to do it. And there may be only one government that will be determined to do it: a UKIP government. It will take longer to get there; but it may be the only way.