Other democracies can teach UK lessons for new referendum

A confirmatory referendum – a People’s Vote – is the only democratic means to resolve the Brexit crisis. That argument has now been made many times, most recently in a letter by over 400 lawyers in the Guardian.

The 2016 referendum, which was non-binding, presented a binary choice between leaving and remaining in the EU. But the reality is that there are many different “leave” options. A confirmatory vote would give people the choice between staying in the EU and an “implementable” leave option. This would represent a continuation of the democratic process – whereas ploughing on with an outcome nobody voted for would betray democracy.

International guidelines

Referendums are used infrequently in the UK, and a confirmatory ballot has never taken place before. So, what lessons can we learn from other countries which have held confirmatory votes in the past?

It is first worth looking at international guidelines already out there. In 2018, the Council of Europe (confusingly not an EU institution) had its Venice Commission put together a practical code of good practice on how referendums could be used to enhance democracy. This code clearly says that a referendum can either pose a general question (as in the 2016 vote) or give voters a choice between specific constitutional or legislative texts.

What’s more, the code says that if a general question is posed then the result cannot be legally binding unless it is clear how that result will be implemented. In other words, it is designed to avoid the mess the UK has gotten itself into. The guidelines are also very keen on a second confirmatory referendum following a general question.

The Swiss model

In 2018, Switzerland held a confirmatory vote on a 2016 referendum which asked voters whether cohabiting partners and married couples should pay the same amount of tax. The Swiss Supreme Court voided the 2016 result and ordered another vote on the grounds of misinformation about how many married couples paid more tax than cohabiting couples. 

There are clear parallels with Brexiter misinformation about £350 million a week for the NHS or 80 million Turkish people poised to move to the UK if we stayed in the EU.

In this case, the Swiss political system – including the judiciary – ensured that a referendum could not result in legal or constitutional changes without proper democratic safeguards. The UK’s Brexit vote seems to be an even more egregious example: not only was misinformation present; not only was the question posed in general terms; but the winning side also broke campaign spending laws. 

This isn’t a call for the UK to adopt the Swiss constitutional model of direct democracy, far from it. The UK is a parliamentary democracy and referendums should be used sparingly and with care. But there are lessons to be learned from the sophisticated way other democracies use referendums – certainly on how to unlock the Brexit deadlock now but also how to avoid a similar quagmire if politicians call further referendums in future.

For example, referendums are only binding in Switzerland where the majority of the country’s regions vote in a particular way. Similarly, the Canadian provinces of Ontario and British Columbia  required a super-majority of 60% to go ahead with implementing the results of referendums that concern sensitive matters of electoral reform. The Venice Commission also recommends that minorities, such as the EU citizens living in the UK in 2016, are given a vote in a referendum that has the potential to affect their legal status. 

The UK has a long way to go to reform the political and constitutional failures exposed by the 2016 referendum. But first we need to break this Brexit impasse. Brexit has become a cul-de-sac: there’s only one way to get out and that’s the way we came in. We got into this via a referendum and now a confirmatory vote is the only democratic way to move on.