24 October 2019

Why a second referendum would be a first class mistake

By

One day I suspect we will see the campaign for a second referendum in the same light as Communism, the Reliant Robin and that tattoo of your Ex’s face: an obviously bad idea in hindsight, but one that exercised a baffling appeal at the time.

When, in many years, Brexit is actually ‘done’ and we look back upon these febrile times, we will ask ourselves, why?

Why did anyone think a second referendum was the right way forward? Why did the same people who argued the first referendum should not have happened think that the answer was to hold another one? Did they really think this would result in national healing, in calm, in closure?

Why did the same people who decried the creep of populism in the main political parties simultaneously proclaim the nakedly populist rhetoric of a ‘People’s Vote’, as if this was some sort of remedy? Did people just not notice, or was the public sphere so degraded that bad faith arguments were simply accepted as the norm?

Whether these questions will be of merely academic interest lies in the gift of MPs and voters alike, with Labour’s election manifesto advocating another referendum (in order that they can campaign against their own renegotiated deal), and Liberal Democrat MPs calling for one until they get into power, at which point they would simply revoke Article 50.

Now, I am someone who has serious reservations about Brexit and the direction of travel. But if you worry about where the county is now, just wait until you see the disastrous place a second referendum would leave us.

So, for those making up their minds in Parliament or at the polls, let’s have a close look at the case for a second referendum.

Argument #1: People didn’t know what they were voting for

The People’s Favourite Argument, which claims ‘the people’ (presumably ‘the other people’) were either gullible fools or mindless ballot box fodder. The usual retort to this is a combination of ‘yes they did you condescending so-and-so’ and ‘there were lies on both sides’ (citing a certain bus and a punishment budget).

But there’s something more fundamental at stake here.

What principles underpin our democratic processes? We might identify three key ones: equal political rights for all over 18 (ie one person one vote, all votes treated equally regardless of age, class etc); an acceptance of majority rule; and the principle of consent.

Let’s put aside for a moment the argument that People’s Vote supporters have, by not giving loser’s consent, failed to accept the principle of majority rule. Or the argument that, by claiming we should have another vote because many ‘oldsters, mostly Brexit supporters, are freshly in their graves’, they have resisted the principle of equal political rights. Let’s focus instead on the last principle: consent.

Now, a second referendum is regularly framed as an issue of consent – we can hear that in the euphemistic phrasing of ‘a Confirmatory Referendum’.

But this isn’t quite right. What underpins the argument for a second referendum is a new, ugly principle in British democracy – what counts is not consent, but informed consent.

The claim that people didn’t know what they were voting for first time round suggests, as Professor Christopher Bickerton puts it, ‘that the legitimacy of a political decision rests upon a judgment about the knowledge that informed it’. A second referendum asks us to accept the principle that the right to act politically rests upon ‘one’s ability to be informed about the issues in question’.

Who determines whether people are informed to the ‘correct level’ in order to allow a result to stand?

We often hear that a second referendum is ‘about democracy’. But implicit in the argument underpinning it is an anti-democratic privileging of one group over another at the ballot box – namely those who have the time, money and education to become informed to the ‘correct level’  – and presumably vote the right way – over those who don’t. In this regard, a second referendum is based upon a false understanding of democratic legitimacy, and would set a dangerous precedent for the future.

Which brings us to …

Argument #2: People didn’t know what they were voting for. But now they do.

Here is part of the Withdrawal Agreement Bill, taken at random:

‘Any enactment which continues to have effect by virtue of subsection (2) is to be read, on and after exit day and so far as the context permits or requires, as if— (a) any reference to an expression which is to be read in accordance with Schedule 1 to the Interpretation Act 1978 and is an expression defined by section 1 of, or Part 2 of Schedule 1 to, the European Communities Act 1972 were a reference to that expression as defined by that section or that Part of that Schedule’.

The Withdrawal Agreement as a whole is well over 500 pages of legal intricacy and fog. Even if we presume that people will have the time (or inclination) to plough through the text, the idea that even conventionally well-educated non-lawyers will go into a referendum with a comprehensive grasp of the social, economic and legal implications of the Brexit deal is laughable.

As Isabel Hardman argues in Why We Get the Wrong Politicians, MPs themselves are far from well-equipped to deal with this type of language. So what burden of expectation are we placing on the public, if the legitimacy of a referendum depends upon knowing what a Brexit deal means? One, I would suggest, that sets too high a bar for ‘legitimate’ democratic participation.

But let’s put that aside for a moment and presume that ok, there is at least the possibility of knowledge and that’s what matters, despite the fact that in reality it is only available to a tiny sliver of the population and undermines the principle of consent.

Let’s assume those objections are overlooked and that Parliament schedules another referendum. What then?

Argument #3: The first was acrimonious yes, but this time it will be different

This argument is correct. A second referendum would be different – but only because it would be even worse than the first one.

The criticism is that the first referendum campaign was based on very little detail and was won by appeals to emotion over reason. This time Remain have the facts on their side. The campaign will be conducted in a better atmosphere and the result will bring the nation together.

But it’s either naïve or dishonest to claim that another referendum would be fought on details, on the facts of a deal so far as they might be understood. Why? Because it’s a sure-fire way to lose a referendum.

Appeals to emotion, to the heart, to identity, will be what win out. The People’s Vote know this –  just look at their populist rhetoric, of ‘The People’ vs the Parliamentary ‘establishment’. They will campaign in broad brush strokes, rather than delicately detailed script. And the Brexit side will do the same. Just like last time.

But what’s different is that this time the referendum will be fought between two much more strongly defined, acrimonious camps. New identities were forged in the wake of the last referendum, and we’ve seen how Leave/Remain have become a central part of how people define themselves and others. Re-staging the whole debate will force people to put these identities on the line – the stakes will feel even higher. And the toxins unleashed into the body politic even more poisonous.

Argument #4: But because people know what they’re voting for this time we’d accept the result – this would be ‘a final say’. This would be closure.

It tells you something about the logical rigor of the People’s Vote campaign that this argument – trotted out so often – is inherently contradictory.

If the principle they are defending is informed consent (‘people now know what they are voting for’), then why – whatever the result – should a second referendum be accepted as the definitive answer?

Every day, every month, every year we are furnished with more knowledge about the impact and flaws of any particular policy. So where should the line be drawn?

We are currently debating a Withdrawal Agreement that will define the next 14 months and give the shape of – but not set – the country’s direction thereafter.

Arguably the next stage of the Brexit process is far more important for determining the country’s long-term future, and will have a far bigger impact on people’s daily lives.

If we establish the principle that we should vote when we have more knowledge, then it is illogical to stop at a Withdrawal Agreement referendum.

After the transition period, we will have a much better understanding of how our future relationship with the EU will look. Surely if we were allowed a referendum on the WA then we should have one on the future partnership? How about when a US-UK trade agreement is proposed, and again when a UK-China one comes up? It doesn’t take a genius to see how the principle of informed consent, tied into a referendum, slips into absurdity very quickly.

To argue for a second referendum then, is to argue for the legitimacy of a third and a fourth and a fifth referendum, within the next 10 years. It is to argue for an endless cycle of recrimination, acrimony and polarisation. Some closure.

Argument #5: But how can more democracy be undemocratic?

This is another favourite argument put out on a regular basis – democracy is a process, how can having more votes be undemocratic?

Democracy is a process yes, but it is one intended to bring us together and bind us into collective decisions.

This case for a second referendum confuses the quantity of democratic instruments with the quality of democratic outcomes. The question to ask is if we have more referendums (ad infinitum, as above), will that produce better democratic outcomes?

The answer is obvious: no. This is not an argument for the technocratic imposition of policy, but a recognition that trust is the lifeblood of a healthy democracy, the force that animates those principles of equal rights, majority rule and consent, upon which our democracy depends. It is that trust that would be hollowed out by a second referendum.

The Brexit vote happened on the back of a collapse of faith in our politicians and our political institutions. MPs weren’t dealing with immigration, the NHS or Europe in the way they said they would. They were promising and failing to deliver, time and time again. The referendum vote was seen by many as a chance to express dissatisfaction with that, and attempt to redress it through a repatriation of powers. It was a one-off chance to trust again.

If you hold a second referendum before the first is implemented – if you say that expression didn’t matter – you will devastate the fragile trust that previously disenfranchised millions had placed in their elected representatives, their political institutions and their democratic processes, often for the first time.

Yes it is true that the Brexit process has hardly fostered public trust in politics, but if a version of Brexit is delivered, that could prove temporary. A second referendum risks it becoming permanent. It would fuel the grievances that led to the vote in the first place, and amplify the most dangerous narrative in politics: betrayal.

Argument #6: A second referendum would be easy to stage

So far, these have mainly been conceptual arguments against another referendum, but it is worth thinking about how a second referendum would actually play out, if MPs could ever agree what, specifically, the referendum would be on. Some brief sketches:

The most simple outcome to gameplay would be a solid Leave win, but there would be a precedent to challenge the result in a third referendum in a few years’ time, as outlined above.

If Remain win, then things could get very messy depending on the nature of their victory.

A Remain victory on the back of a Leave boycott – which is a possibility – would fail to either hold democratic legitimacy or bring the country together. If you think we’re living through a constitutional crisis now, wait until a representative parliament has to deal with a boycotted plebiscite.

Perhaps the Government would set a minimum turnout threshold to avoid this, but that would also be highly contested – would it have to be the same high level as the first referendum? What happens when the turnout misses the threshold by a few thousand votes? Is the result ignored, even if, say, 75% voted Remain?

What about if Remain win but on a far lower turnout, such that when the two referendums on Brexit are combined, Leave still comes out on top? I know this is not how referendums work, but perception matters. And when you base your mandate on the blunt weight of votes, this argument will become more compelling than perhaps imagined – we’ve already seen the dress rehearsal in the way the European elections were interpreted simultaneously as a victory for Leave and a victory for Remain, depending on how you misread the numbers.

And what about things from the EU’s side? Quite how does a rancorous UK slot seamlessly back into the EU? Ever since the vote to leave, Europe’s primary goal has been to contain the shockwaves Brexit threatened to send through the Union, undermining its stability and unity. So far, they have achieved that goal. A returning UK, dragged back in by barely more than 50% of a second vote, would be seen as a threat to that hard-won stability, a potentially petulant, divisive force. The idea that things would just “go back to normal” is utter fantasy, worthy only of a child or the Liberal Democrats.

There are other scenarios of course – each with their own technical pitfalls. The point is that holding a referendum that binds everyone into the outcome, that conveys democratic legitimacy and which doesn’t result in a narrative of betrayal is going to be very, very hard, if not impossible.

~ ~ ~

In short, a second referendum would be a theoretical and practical mess. It would not produce resolution, closure or harmony. It would set dangerous principles and precedents for our democracy, and would devastate trust in our political institutions at the time we most need to build it. Worst, it would open up wounds that will fester for decades, poisoning our politics, and doing more significant damage than a Brexit deal ever could.

So even if, like me, you have concerns about the country’s direction of travel, remember this: we are not yet midway on the Brexit journey, and while the path is far from straightforward, a second referendum would lead us only deeper into the dark woods, not out of them.

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Frank Lawton is the Assistant Editor of CapX