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How could it be legitimate not to abide by referendum?

by Hugo Dixon | 05.07.2016

Many Remain voters want Britain somehow to stay in the EU. This is a reasonable wish, given the damage and lost opportunities that will be caused by quitting.

But, while hoping that we don’t leave, pro-Europeans mustn’t advocate moves to achieve that goal which would be undemocratic. That would further pollute a political system that has been tainted by the lies, scaremongering, false promises and back-stabbing of the past weeks and months.

The will of the people to leave the EU can only legitimately be overturned in two circumstances: either the people change their minds or the options on the table demonstrably change.

Even then, a u-turn would need democratic validation. It would not, for example, be enough for parliament to decide that the circumstances had changed and that the referendum’s results should therefore be ignored.

This is the prism through which we should view the legal action launched by Mishcon de Reya to ensure that parliament passes a new act before the government formally starts divorce proceedings.

The lawyers have a good case. After all, triggering Article 50 of the Lisbon Treaty would, among other things, overturn the 1972 European Communities Act. It is a basic constitutional principle that only parliament has the right to change laws. A prime minister does not have that authority.

If parliament had wanted the plebiscite to give the prime minister the authority to trigger Article 50 without referring back to it, MPs could easily have done this when they passed the original legislation. But they only made the referendum “advisory”, not legally binding. Launching divorce proceedings without consulting MPs would therefore be constitutional vandalism.

However, parliament could not just deny the next premier the authority to overturn the referendum result without running the serious risk of being undemocratic. It would need a mandate from the people to do so.

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At the moment, MPs have a legitimate reason to ask for a pause, if not an overturning of the result. The government doesn’t have a Brexit plan – and it would be foolish to invoke Article 50, which starts a two-year clock ticking, without such a plan.

Two of the frontrunners to take over as prime minister – Theresa May and Michael Gove – have promised to produce a plan before triggering the exit clause. As such, neither envisages doing so until next year.

However, Andrea Leadsom, the other frontrunner, wants to invoke Article 50 as soon as possible. This, in itself, is not objectionable. But doing so without a plan would be. So MPs would be acting legitimately if they stopped Leadsom triggering the article until she set out her negotiating stance.

That doesn’t, though, mean they could shoot down a plan just because they didn’t like it. Say, for example, a new prime minister planned to leave the single market because that was the only way to put an end to the right of EU citizens to come to Britain. That’s a feasible plan, which is consistent with what the people have just voted for, and could not be reasonably blocked.

On the other hand, it would be right to consult the people again via a new referendum or election if there was a significant change in what “remain” looked like – say if the other countries allow us to put restrictions on free movement while staying in the EU. Admittedly, that doesn’t look likely now. But such a scenario was envisaged by Boris Johnson when he first came out as a Brexiteer – and strange things do happen in politics.

It would also be democratically right to re-run the referendum if the people’s will changes. It is not enough to have 4 million people petitioning parliament to ignore the vote, as we have in the past days. The vast majority of these will presumably have been Remainers. What one would first need is tangible evidence that largish numbers of Leavers have changed their minds.

This might happen if the economy takes a knock, as seems likely. But, again, Remainers need to be careful not to talk down the economy. We must all hope that the damage is mitigated – and work to achieve that rather than cut off our nose to spite our face.

Some Leavers might also change their minds if they realise they were lied to – for example, that there isn’t going to be a treasure chest, let alone an extra £350 million a week to spend on the NHS.

Remainers must continue to hold the key Brexit campaigners’ feet to the fire for their false promises. But again we must be careful not to challenge the democratic legitimacy of the referendum.

Yes, the vote was infected by dishonesty. But that, sadly, characterises much of our political class. David Cameron, for example, said that if he lost he would stay as prime minister and immediately trigger Article 50. Within hours he had eaten his words. Yes, we need to change the political culture in which habitual lying is part of everyday politics. But that is a longer term project.

Anything we do in the coming weeks and months must renew our democracy, not damage it further.

This article is being simultaneously published in the Guardian

Edited by Sam Ashworth-Hayes

11 Responses to “How could it be legitimate not to abide by referendum?”

  • This is really confused. There is nothing illegitimate or undemocratic about calling for a second referendum on the terms of the UK’s exit when they become clear. Remainers who point out that the terms may be very unfavourable cannot be accused of ‘talking down the UK economy’ — that is the kind of weak argument that the Leave camp used to dismiss realistic warnings about a recession. All referendum results, like all election results, eventually lose what legitimacy they have with the passage of time. A lot of water will have passed under the bridge by 2018 and it is quite possible that public opinion will have shifted decisively on the pros and cons of Brexit. It doesn’t look likely at the moment, but that may change. And remember that between the triggering of Article 50 and the UK’s final exit, the government in office can change its mind on leaving the EU at any time.

  • Hugo – I would like to add to John Morrison’s argument. I believe you are taking far too passive a line.

    I’m sure you have read David Hare’s argument in the Guardian. He says, and I strongly agree, that Remainers should refuse to be bullied by Leaver demagogues on the grounds of imputed elitism or sour grapes.

    Hare cites the effects of the manipulation of democracy in 1930s Germany. Here today in the UK we have had our democracy traduced by a bunch of liars & idealogues who have cleverly ridden a wave of genuine – and definitely not to be sneered at – disaffection in certain large demographic groups in our citizenry.

    This outcome does not necessarily express the genuine democratic will of the people of the U.K. If you need water to live, but have been persuaded that the water supply is poisoned, and it isn’t , your vote to ban the sake & consumption if water is invalid. If you lie to deceive a jury in court, that jury’s decision is invalidated by perjury.

    I have been a great fan of InFacts, but I’d like to see some more muscular efforts on your part to do something concrete to facilitate rescuing us all from this catastrophe.

  • Ball is in EU’s court. Having ignored democracy in Ireland, France, Greece, the Netherlands and Denmark in previous referenda, suddenly democracy has become sacrosanct. But are UK voters (13% of the EU population) not also European voters? The EU clearly doesn’t think so – rather than listening to them they are dismissed as wrong and simply a UK problem. The reaction of the EU has basically vindicated the Leave voter. They were not listened to by the EU before the vote and they are not listened to now.

    The EU knows full well that with such a weak “Leave” mandate it could easily offer even just a fig leaf to the UK which would convince a further 2% of the electorate to change its mind (as they did with Ireland on the Lisbon Treaty which was defeated by over 53% first time round). Indeed various polls have suggested that somewhere between 5 and 20% of Leave voters would vote differently if the referendum were held again. The EU is essentially ridding itself of a problem by allowing the UK walk away. It looks increasingly as though it has obtained exactly the result it wanted. With the various threats made before the vote calculated to stoke nationalistic pride and the barely contained glee from Guy Verhofstadt, Donald Tusk and others in the European Parliament when sanctimoniously extolling democracy after the result.

    The EU understandably wishes to ensure stability in the EU and avoid contagion. To achieve this they could either make efforts to prevent the UK from leaving or ensure that the UK pays such a high price for leaving that no other disillusioned nations are tempted to follow. The EU is equally understandably increasingly fed up with making exceptions to please the British. However, there were a number of pan-European issues debated in the referendum for which affect all EU countries such as the lack of accountability, the lack of control of the budget and explosion in cost of the EC. Ironically, now that the UK is walking towards the exit these reforms are becoming more likely but could so easily be used as a peace-offering to the UK electorate and reverse the result. The more thorny issue of immigration which was important to many voters (but certainly not half the population) might take longer to debate but could be debated from within the EU rather than requiring a hard exit.

    The EU’s alternative is in effect to ensure that the UK exit is unsuccessful. This strikes me as both risky and destructive – there are unfortunate precedents for the attempted humiliation of a European country in the not too distant past, but (more optimistically) the failure of the UK is by no means a certainty! A safer way to ensure EU cohesion is surely to listen to and learn from the electorate rather than ejecting it.

  • “However, parliament could not just deny the next premier the authority to overturn the referendum result without running the serious risk of being undemocratic.”

    Do you mean “give” rather than “deny” here? Or alternatively do you mean “apply” rather than “overturn”? Otherwise, I can’t make sense of this sentence.

    Feel free not to publish this comment (or to delete it if it appears without being moderated).

  • I don’t agree with a lot in this article Hugo. It wasn’t the democratic will of the people.

    1. 63% of the electorate didn’t support brexit.
    2. 16+17 year olds and many Brits abroad were denied a vote.
    3. The vote was won by lies and false promises that are now unravelling. It’s not democractic if you are tricked into voting one way.
    4. We are in a representative democracy where our MPs take decisions. Referendums are only advice for our MPs, not decisions.
    5. The so-called ‘project fear’ is becoming project reality faster than many anticipated.
    6. There is no brexit plan that will work which is why the brexit campaign didn’t come up with one and no-one has come up with one since the referendum. No-one in the referendum will have voted for whatever plan that they come up with, so it has no democratic legitimacy.
    7. People would have their EU citizenship removed against their will.

  • Given the continuing grim news on employment, investment, the financial position and our balance of payments it may not be long before major protests develop across the country.
    The government must first, since the referendum was expressly advisory, explain just what weight it attaches to the quite narrow result secured on the basis of a Leave campaign which is now seen to have offered a false prospectus, The government must then explain how it will ensure the best possible outcome for the UK
    All this must be subject to debate in Parliament. As Douglas Hurd commented referendums are sought by those who know they cannot win a majority in Parliament. However, in our repesentative, not direct, democracy sovereignty is not with the people but with our representatives in Parliament, There is a substantial majority in both houses for Remain.
    There is little media coverage in the UK of the debates on reform which are under way across the EU.
    Donald Tusk, European Council President, has emphasised the urgency of radical change. He believes there should be much more left to the member states, that a two speed structure may be helpful, that there is no appetite for a super state. Angela Merkel who it is reported would be happiest if the UK does not leave the EU has urged that the variety of expectations across the member states of the EU should be recognized. The French prime minister has raised the problem of the terms on which EU migrants contribute to and receive benefits from social security systems and the French foreign minister has said all issues, including the principle of freedom of movement are on the table for discussion..
    Slovakia has just taken on the rotating presidency of the EU and the prime minister has said he would” support any measure to keep Britain in the bloc” All these views are in line with UK thinking yet are little reported.
    So, how can the UK know what organisation it will be leaving?. Even if, on the basis o fa parliamentary vote, the UK were to operate Article 50 by the end of the year we would continue as full members for at least two more years – by which time immigration and other issues may have been resolved, for us and for other members who share our concerns.
    Better to exercise now our right to full participation in all discussions on reform. Our participation, ahead of giving Article 50 notice, would calm turbulence and see us remain long enough to assess the situation after the French and German elections in 2017. The approach of those elections will lead both countries, whilst they would prefer the UK to stay, to take a tough negociating position ahead of their elections.
    For this reason alone it is vital for us to defer acting on Article 50. It is the only means we have of remaining in control of the negociation. We should remember the old diplomatic adage – if you are not seated at the table you are on the menu!

    It would be ironic indeed if, having stimulated constructive debate across the EU, we were to find that, by acting precipitately, we had excluded ourselves from a renewed EU, redesigned to meet the world of tomorrow. This is exactly the EU British people seek, including many who, misled by a false prospectus, voted to leave and now regret having done so.

  • I agree with all of the above comments. This is not a time to roll over if we care about our country. The economic consequences of brexit are already bad. We should not hide from that and certainly not play any part in sugar-coating this particularly bitter pill for the public to swallow.

    Democracy doesn’t dictate that we should go quiet on this.

    And things are set to get worse: the financial community is forecasting recession next year for the UK, further depreciation of the pound and a shrinking economy. With the reported ‘upside’ being that they believe it is unlikely to significantly affect global markets but rather Britain will bear the economic consequences largely on its own.

    Short-term measures to ease the bumpiness – QE, allowing the budget deficit to increase, reducing the requirements on companies to fund the shortfall in pension assets created as a result of brexit, etc. may to an extent ease the immediate severity of the impact felt by the people of Britain but will store up challenges down the line – particular as the economy is now forecasted to shrink. The burden of this will fall on all of us but perhaps particularly the younger generations.

    The EU may change the rules following the realisation that people are not happy with them as they are. Under these circumstances it would be legitimate to reconsider. People may change their minds – again reason to reconsider.

    The EU single market is the most comprehensive arrangement for free market access in the world and is the envy of nations outside of it. This is what the vote should have been about although one could be forgiven for relegating that to a trivial aside as it was turned by the brexit campaign into a populist circus of blame for everything people worried about on the EU and of disparaging the experts as a ludicrous anti-education fever was whipped up (no wonder Gove failed as education secretary).

    So, what should we do next?

  • Hugo Dixon says, “At the moment, MPs have a legitimate reason to ask for a pause, if not an overturning of the result. The government doesn’t have a Brexit plan – and it would be foolish to invoke Article 50, which starts a two-year clock ticking, without such a plan.”

    Agreed. It would be just as foolish to invoke Article 50 before the EU has a plan. Colin Clark indicates in his comment why the EU may be far way from such a plan.

    We should take the initiative in proposing a new relationship with Europe. That is what the two candidates for Prime Minister must do as clearly as possible during the coming weeks. They must also say how they how the UK will relate to the rest of the world. The Tory party members should then listen to the mood of the country when casting their votes.

    A fundamental question is what Brexit means. President Juncker says Out is Out. That is facile. The British want sovereignty; that means a new relationship with Europe. The majority want free trade trade to continue, despite the bananas.

    Mr Gove wishes to leave the single market. That is a bold move against the will of the people in Britain and the EU.

    The issues surrounding freedom of movement of people among the 27 other member states will not be settled in short order. That makes detailed negotiations between the UK and the EU on control of its borders impossible. They could go on for years without resolution.

    Mixing up free trade and freedom of movement as the basis for negotiation, as Mr Hammond and Mrs May did on Monday, will be disastrous.

    Mrs Leadsom is right to want to conclude an agreement within months. We have spent 40 years working out an agreement on free trade. That can continue.

    We need statesmen and legal minds to apply themselves to meaning of free movement and the principal rights and obligations it entails. That is necessary to underpin a new relationship.

    Brexit has given the UK and Europe the opportinity to establish a better relationship. That is what needs to be agreed.

  • The ball is in the EU’s court. Having ignored democracy in Ireland, France, Greece, the Netherlands and Denmark in previous referenda, suddenly democracy has become sacrosanct. But are UK voters (13% of the EU population) not also European voters? The EU clearly doesn’t think so – rather than listening to them they are dismissed as wrong and simply a UK problem. The reaction of the EU has basically vindicated the Leave voter. They were not listened to by the EU before the vote and they are not listened to now.

    The EU knows full well that with such a weak “Leave” mandate it could easily offer even just a fig leaf to the UK which would convince a further 2% of the electorate to change its mind (as they did with Ireland on the Lisbon Treaty which was defeated by over 53% first time round). Indeed various polls have suggested that somewhere between 5 and 20% of Leave voters would vote differently if the referendum were held again. The EU is essentially ridding itself of a problem by allowing the UK walk away. It looks increasingly as though it has obtained exactly the result it wanted. With the various threats made before the vote calculated to stoke nationalistic pride and the barely contained glee from Guy Verhofstadt, Donald Tusk and others in the European Parliament when sanctimoniously extolling democracy after the result.

    The EU understandably wishes to ensure stability in the EU and avoid contagion. To achieve this they could either make efforts to prevent the UK from leaving or ensure that the UK pays such a high price for leaving that no other disillusioned nations are tempted to follow. The EU is equally understandably increasingly fed up with making exceptions to please the British. However, there were a number of pan-European issues debated in the referendum for which affect all EU countries such as the lack of accountability, the lack of control of the budget and explosion in cost of the EC. Ironically, now that the UK is walking towards the exit these reforms are becoming more likely but could so easily be used as a peace-offering to the UK electorate and reverse the result. The more thorny issue of immigration which was important to many voters (but certainly not half the population) might take longer to debate but could be debated from within the EU rather than requiring a hard exit.

    The EU’s alternative is in effect to ensure that the UK exit is unsuccessful. This strikes me as both risky and destructive – there are unfortunate precedents for the attempted humiliation of a European country in the not too distant past, but (more optimistically) the failure of the UK is by no means a certainty! A safer way to ensure EU cohesion is surely to listen to and learn from the electorate rather than ejecting it.

  • I think there’s a tension here that isn’t being properly explored. Politically, it makes sense to back off a bit and wait for developments, as we can’t just overturn the vote. This much I agree with. But that absolutely doesn’t mean we have to accept anything that’s done in the name of the referendum.

    The question on the ballot paper was whether we should Remain in the EU or Leave it. It asked and received no opinion on what options anyone preferred, and from various polls I suspect the majority opinion would be the unfeasible single market without free movement option. But let’s assume from those polls that a majority want to remain within the single market, even if we leave the EU. Any move to take us out of the single market could then justifiably be opposed on the grounds of national interest, overreaching the narrow mandate of the referendum and finally public opinion. If the claim is that people who voted Leave meant to leave the single market, there is no formal evidence to support that and plenty of grounds for doubt. If a government seeks a public mandate for this, they are most welcome to ask the country specifically, or else call an election.

    The referendum cannot and must not be used to justify absolutely any action consistent with leaving the EU. The mandate is narrow, and all details should be up for debate and opposition. The alternative is that in respecting a vote in the name of democracy, we effectively grant unconstrained executive power on any Brexit government.