Would a second EU referendum be undemocratic?

It is only four days since the UK public narrowly voted to leave the European Union. A lot of people are now arguing for a second referendum. But would that be democratic? 

Like many people who voted to remain, I have been feeling down about the result. My social media feeds have been full of many of the states of grief, but mostly anger and denial. It is denial which, I think, is motiving the calls for a second referendum. I am therefore wary, as someone who would love for this all magically to go away, of the allure of those arguments. But, we are in uncharted waters. Millions are calling for a second referendum on the original question, and now likely Conservative leadership candidate Jeremy Hunt has called for a second referendum to decide whether the country would accept an exit deal.

Hunt’s argument is enticing, at first glance anyway. He begins by saying that ‘The people have spoken – and Parliament must listen“. But – but! – “we did not vote on the terms of our departure“. In short, he wants to open up “a space for a “Norway plus” option for us – full access to the single market with a sensible compromise on free movement rules”. And he thinks the best way to make that happen is to negotiate an informal deal before invoking Article 50 (therefore setting a two-year time limit) and “once again… trust the British people to decide on whether or not it is a good deal”.

What Hunt doesn’t say is what the options would be in that referendum. Obviously ‘yes’ would mean attempting to the EU under those new terms. I say ‘attempting’ as by definition an informal deal would be just that, and it could be withdrawn after Article 50 is invoked and before the UK leaves. That is a basic flaw in Hunt’s argument. But more interesting is what ‘no’ would mean: would it mean staying in the EU, or would it mean invoking Article 50 and trying for a better deal, or would it mean leaving the EU with no deal?

It’s fiendish. And I haven’t even got to the main question posed in the title: would any of that be ‘democratic’?

The democratic deficit

I am afraid there is no easy answer. That isn’t just a reflection of my own views as a remainer. It is a reflection of the UK’s unwritten constitution, and what I see as a basic flaw in the thinking behind the original referendum.

Let’s start with a brief guide to our unwritten constitution. There was a lot of talk during the Referendum debate about ‘sovereignty’, and particularly the perceived threat to our classic notions of Parliamentary sovereignty by the European Court of Justice and (though it wasn’t directly in issue), the European Court of Human Rights. On a basic level, it is correct to say that any court whose judgments bind the UK state, as both courts’ do, is likely to restrict what Parliament can do. That is because a law passed by Parliament can be effectively overruled or even struck down by the court. That is a simplification but it is basically what happens.

The counter-argument, which I agree with, is that to get on in a globalising world, it is necessary to sign up to  international treaties. These are, in effect, contracts with other states where we buy, for example, access to a free market or a system of international rules, and in return Parliament decides to give away some of its ‘sovereignty’ to an international court which settles disputes between states within the larger system. There is nothing unreasonable about that in principle, though of course international courts need to be watched to ensure they do not exceed their agreed mandate.

In any case, Parliament retains its sovereignty as it can usually decide to withdraw from arrangements which no longer work for the country. Well, usually. Here is where it gets tricky. In our political system, Parliament doesn’t usually make decisions about whether to enter into exit treaties. That is done by the Executive, which essentially means the Prime Minister exercising the ‘Royal Perogative’. For more, see David Allen Green and this post on the question of whether triggering Article 50 would need Parliamentary approval. That’s not for today.

The point I am getting to is that, generally speaking, our democratic system puts all of the decision-making power in the hands of Parliament and/or the Executive. The reason that is essentially democratic is that we, the people, can vote everyone out every five years or so. In the meantime, our system of representative democracy allows Parliament and the Executive to do what they think best, although they will be lobbied by the public over individual issues and are to a large extent bound by their party’s line.

Five arguments for a second referendum

1. The instrumental argument

Which brings me to the referendum. How on earth does that fit in our democratic system? I think the only real answer to that is wherever Parliament decides it fits. And this is the first argument people are making for a second referendum. It’s basically instrumental. The Referendum was ‘non-binding’, i.e. it did not put in place a mechanism for leaving the EU if a majority voted ‘no’ – as if a referendum could truly bind Parliament, which it probably couldn’t. Therefore Parliament should do whatever it thinks is best for the country in deciding whether to implement it or not.

I think that is a bad argument. A referendum could never truly ‘bind’ Parliament, even if it said it did. And aside from that slightly technical argument, whatever one thinks about the manner in which the Referendum was conducted, there is no doubt that people who voted ‘no’ legitimately believed that if their view won out, we would leave the European Union. There is wriggle-room around when and how, but there is no real doubt that Parliament would be going back on a promise to the electorate if it simply refused to leave, or decided to hold a second referendum asking exactly the same question. Even if the UK would be making a terrible mistake by leaving, it was Parliament’s decision to call a referendum and, as Hunt says, “the people have spoken”.

2. The lies argument

A second argument for a re-run is that people didn’t have access to the full facts, or were lied to during the referendum. Therefore, it would only be right to let them decide again. I am dubious about that argument. All of the lies were exposed during the campaign but, as I have written, people simply didn’t listen. If we reran every vote where politicians lied, we would be re-running every vote. It would be a bad precedent to introduce, though in a case where there was a genuine lie which was not exposed duding the campaign, I could see this argument working.

3. The new facts argument

A third argument is that a Second Referendum would be necessary because new facts are on the table. The position has changed. People need to vote on the new reality. That new reality may be, as Hunt suggests, a particular exit deal. This argument is a bit more plausible, and reminds me of the Ladd v Marshall test which we lawyers use when asking a court to re-open a case because there is “fresh evidence” Lord Denning  said that fresh evidence could be brought in only on three strict conditions, that the evidence couldn’t reasonably have been obtained for the first trial, that it probably would have an important influence on the result of a case and that it is ‘credible’

I think that isn’t a bad approach to apply here, though it is fraught with dangers. The main question would be: where does it end? How many referenda do we have to have before the issue is resolved? This highlights the fundamental risk in calling the original referendum without Parliament making clear what a ‘no’ vote would mean. Our unwritten constitutional system is vague enough without adding a further level of uncertainty through a non-binding taste of direct-democracy. The referendum asked a simple question about a highly complex issue, and it is no surprise that nobody is sure where we go from here. That is Parliament’s fault, as it voted for a referendum on particular terms, not just David Cameron’s.

4. The parliamentary responsibility argument

Here is a fourth argument.  Parliament has a responsibility, under the usual system, to do what is best for the country, factoring in but not governed by what has been promised to the public. It is free to change its mind. A classic example is pre-election promises. Governments are regularly accused of betraying the people who voted for them by not fulfilling a manifesto commitment. On one view, the people have voted on the basis of particular policies and it is wrong not to implement them. But on another view, facts change and governments have to prioritise. People may be annoyed about manifesto promise failings, but it is hard to describe them as undemocratic. 

I think that single issue referenda are different to manifesto commitments, in that there is an even stronger reason why Parliament needs to follow them (see above). But if, for example, it becomes increasingly clear that it would be disastrous for the country to leave the EU or accept a particular exit deal, it wouldn’t necessarily be undemocratic for Parliament, on a majority vote of its own, to put the breaks on. On one view, that would be more democratic within the UK’s system than most other options.

5. The fresh mandate argument

A fifth argument is that if we don’t trigger Article 50, and there is a general election, and a party wins on a platform of holding a second referendum, then that would provide a democratic mandate. I am dubious about this argument – again, I think that Parliament should do its best to implement the outcome of the referendum. I cannot see a fresh election being called before 2020 anyway. I suppose in the unlikely scenario that it was, and the even more unlikely scenario of an anti-Brexit pro-#EURef2 party being elected, then there would be a decent argument for a second vote.

Uncharted waters

So it’s not easy. To summarise:

  1. In our political system, generally speaking whatever Parliament and/or the Executive does within the powers assigned to them is ‘democratic’
  2. Referenda do not neatly fit into that system, so there is no hard or fast rule on whether ignoring the outcome of a referendum, or calling another on the same or different terms, would be ‘undemocratic’.
  3. But, in my view, once Parliament has told the public to expect a particular result if it votes one way or the other in a referendum, it should try its hardest to stick to that result, even if it was partly achieved by dishonesty (unless, perhaps, if the dishonesty was not identified during the vote, which wasn’t the case here).
  4. There might be an argument for having another referendum to decide on an exit strategy. But unless something genuinely new happens, I think it would be better for Parliament to handle this rather than subjecting us to an endless series of painful referenda.
  5. There might also be an argument for a second referendum if there was a general election before Article 50 was invoked, and the winning party promised a new referendum. But it’s messy, and would make a lot of people feel betrayed by our democratic system.
  6. I think the best argument for a second referendum is that the facts fundamentally change, perhaps because of a new deal or the UK economy tanking. But even then, the same dangers of endless referenda apply.

I appreciate that the above does not give a conclusive answer. I don’t think there is one. We are in uncharted waters and our constitution is unclear at the best of times. I also think that Parliament has messed this up in the manner in which the original referendum was set up, so there will be a legitimate range of options for what happens next. If you think you know the answer, please leave it in the comments below.

37 thoughts on “Would a second EU referendum be undemocratic?

  1. Reblogged this on Palimpsest and commented:
    For those of you following the EU / Brexit saga, this is a concise post about the constitutional issues regarding the rumoured “Second Referendum.” Well worth a read.

  2. Our government was in gross dereliction of it duty to its electorate to call a referendum on the terms it did, and to encourage all via media etc to think the UK’s problems were because of Europe and not the Tory policies.

    Gove/Boris hoodwinked the public and never thought, with Scotland and NI, they could possibly succeed to actually BREXIT. The last government almost did the same with the Scottish referendum. Google Finola Moss.

    UK and the public are now paying the price for their reckless disregard

    I think they should bear the consequences, but not UK and its people, they have suffered enough.

    The referendum stands for the public’s dissatisfaction with the way our country is being run, this must be resolved as this is democracy.

  3. What if election offences have been committed by a device designed to mislead the electorate?

    Someone might come forward with an Election Petition.

  4. I think there’s a key aspect that’s overlooked in option 3:
    The only way there can be a specific deal is by invoking article 50. But by invoking article 50, the UK declares it is going to leave. So any referendum on a deal agreed on could not be a referendum on leaving or not, but only to accept the deal or not – with the alternative being an exit to WTO conditions.

    • I did make the point that “by definition an informal deal would be just that, and it could be withdrawn after Article 50 is invoked and before the UK leaves”. I appreciate there could be an informal deal but at the moment that isn’t looking likely.

  5. As a Constituency Association South Antrim Conservatives did not campaign for either In, or Out as directed by CCHQ. However, now that the Electorate have clearly decided the future of our Country, we have to deal with that fact. Whilst I was initially shocked, despite supporting the Brexit – like many, from the top down, not able to see exactly how the UK was to implement the Decision, However, when I saw the President of the European Council, Jean-Claude Juncker comment, I realised that we had definately made the right decision for the UK!! Such arrogance goes completely against the grain, and more than ever now, I believe that we made the best decision, Britons never, never NEVER will be Slaves to an unelected EU Commission!! The EU has a population of around Three-quarters of a Billion – Whilst the Commonwealth is made up of 53 independent countries that work together to pursue common goals with a combined population of over 2 Billion, Over centuries we have variously ruled over, fought with and saved many of the EU States, but so far as they are concerned, we are but a small group of islands off the European Continent. When our new Prime Minister is appointed no doubt the formal Notice will be delivered to the EU – in our own time (as per Article 50) – not at the behest of the panicked EU Commission!!

    Ian (D. Withers) – South Antrim Conservative Association

    • This is characteristic of the counterfactual jingoistic diatribes we’ve come to expect, alas. Jean-Claude Juncker has a mandate from the people of Europe as the candidate for President of the Commission of the European People’s Party. The nonsense about an “unelected commission” is testimony of an utter lack of political literacy. The Commission is the executive of the EU, like the German government is the executive of Germany and the UK government of the UK. The German government is elected by the parliament of Germany, not directly by the people, and the UK executive is appointed by a hereditary monarch. It is of no consequence that they are elected MPs, since that is a non-executive office, and not a mandate from the people at large anyway. There is, in fact, no executive safe for presidents that I know to be elected directly – not even the Swiss do that.

      It is hilarious that you yourself point out that the next Prime Minister will be appointed, but froth over an allegedly “unelected” Commission, never mind that it is chosen by the Council on a vote and can only take office through a vote of confidence by the EP, thus having a much stronger democratic mandate than the UK Prime Minister.

      And the absolutely disgusting trivialization of slavery because the people of Europe dare to have an opinion of their own and not prostrate themselves before British jingoists who still believe that Britain rules the world only underscores that the democratic deficit in Britain is far, far greater than that in the EU.

      Eyeing the Commonwealth as if those countries would dream of nothing more than being stripmined by Britain again only underscores it is you who reeks of an unspeakable degree of arrogance and contempt. First, those countries have already pointed out they prefer the UK to remain a part of the EU, thus you express nothing but contempt for their preferences and desires. Second, most of them are economically far weaker than EU countries. What you hope for is once again to be able to take without giving, which is the fundamental attitude of the Leave campaign – all the rights, none of the obligations. To call it arrogance when people object to that demonstrates a complete and utter lack of any integrity whatsoever. It is regrettable that you were born 200 years to late, but it would behoove you to realize the days of Empire are over and no one except you looks back to them fondly. Your expectation that Commonwealth countries dream of nothing more than to be colonized again by Britons with delusions of Empire is in for a bitter disappointment.

      If anyone behaved in an insufferable manner today, it was Nigel Farage, who has lived as a parasite off the European taxpayer without doing any measurable amount of work for the money he was paid, all the while insulting the representatives of the people with lies about their professional background.

      There was a time when honour and integrity were seen as typically British, It is perhaps time we should limit that to Scottish.

  6. End these silly Corrie/Enders type arguments now! We, the people, voted to leave and so we have to get on with it!
    We are not bound by what happened before.
    We have voted OUT!

  7. I was on the remain side but was appalled by their campaign and conduct after the vote. Osborne promising a “punishment budget” if we lost but never delivering it !,Cameron refusing 3 times to tell a member of the audience whether or not he would exercise a veto on Turkey,Cameron saying he would not resign if he lost the vote
    and that he would invoke clause 50 immediately but breaking both undertakings immediately ! Surely general elections have shown that if you just “slag off” the other parties you lose so why not emphasise the good things about Europe like 70 years of peace between Germany,France and UK ,? “PROJECT FEAR” was the only way to make sure we lost because nobody likes being threatened and reproached;Promises should have been made to firmly control immigration from outside the EU ;Surely that is not racist but is common sense so why not say it?
    Politicians treated the people with contempt and spoke to them as though they were naughty children.No wonder we lost………………

  8. Well said -bring back the Empire ! Hooray ! The markets will come to their senses and recognise how lucky they are to have the UK striding across the known world. We can show them how its done!!

  9. When Scotland had its referendum about leaving the UK, we warned the Scots that, for them, leaving the UK meant leaving the EU. In the light of the referendum last Thursday, England and Wales should now leave the UK, allowing Scotland and Northern Ireland to continue holding the now smaller UK’s EU membership jointly. For that logical solution, we’ll probably need referendums in England and Wales.

  10. Do we need a referendum to decide whether we should break up the UK? Given the results overall the government has been instructed to take UK out, but Scotland and NI have strongly disagreed. It is as undemocratic to take Scotland and NI out against the express will of their people as it is to stay in against the express will of of the UK or England.

    It seems that we need to break up and let the parts decide to stay on as successor states or accept that to stay together we must stay in.

  11. First of all I would like to say that I am usually in agreement with Adam but, not on this occasion. I also make no representations about the result of the Referendum right or wrong, I comment only on his comments.

    It seems to me that Adam has approached the Referendum with the eyes of a lawyer determining legal issues but the Referendum was more than a legal issue, it was a political issue first and foremost. Therefore legal opinion on any particular facet in this matter may be regarded as secondary to the overall political desire. One must also remember that judicial/legal opinion is not infallible and the proponents of such do not, and did not, possess superior intellect to other members of the public in matters such as this. They are, and always were, just as susceptible to various influences, predilections and prejudices as any other person. A lawyer’s eye view is therefore no more or less important or relevant than any other’s in purely political matters although, at some stage, legal issues may present themselves.

    Whether one likes the outcome of the Referendum or not [and there will be consequences both good and bad] it was promised to the electorate by the Government on certain terms and those certain terms have been satisfied. The terms were simple and they entitled the electorate, which was fully aware that the vote may go either way, to determine by simple majority whether or not it wished to remain in the EU.

    At this juncture it is notable that the electorate was never canvassed about joining the EU. The popular decision in 1975 was based on Britain joining the EEC [as it then was] which was very different to the EU. It is further notable that in 1975 some already suspected/foresaw the direction in which the EEC was moving. I refer, of course, to Tony Benn’s and Roy Jenkins’ interview with David Dimbleby when Benn correctly forecast that the EEC was merely a precursor to a Europe wide government [Jenkins disagreed] where, at least some, sovereignty will be surrendered. One might ask why the British were never canvassed.

    A second Referendum may produce the same or a different result but, assuming a different result, should the electorate be allowed a further Referendum? And, if so, how many referenda must be endured? When will the ‘right’ result be achieved? Is the only acceptable result the one that one wanted? One might remember at this point that when Ireland voted against the Lisbon Treaty, the referendum was re-run with the result that the EU’s desired result was achieved and no further referendum was allowed. Was this ‘democratic’? Would Adam have written what he did if his desired result was achieved or would he have written in similar terms but for the other way?

    The question posed by Adam was whether or not a second Referendum was ‘democratic’. The answer to this question must be yes. Why? Because unlike other political determinations made in Britain, this question was directly determined by the populace itself and not by a number of politicians who can not always be properly described, or relied upon, as representative of the national will. Put another way, this Referendum was direct democracy in action. Ergo, it has more moral authority than any parliamentary decision.

    All of this is to say that one must accept the rough with the smooth, right or wrong. None of this is to say that one cannot be unhappy with the result or that one may not speak against it.

    Wallah

  12. First of all I would like to say that I am usually in agreement with Adam but, not on this occasion. I also make no representations about the result of the Referendum right or wrong, I comment only on his comments.

    It seems to me that Adam has approached the Referendum with the eyes of a lawyer determining legal issues but the Referendum was more than a legal issue, it was a political issue first and foremost. Therefore legal opinion on any particular facet in this matter may be regarded as secondary to the overall political desire. One must also remember that judicial/legal opinion is not infallible and the proponents of such do not, and did not, possess superior intellect to other members of the public in matters such as this. They are, and always were, just as susceptible to various influences, predilections and prejudices as any other person. A lawyer’s eye view is therefore no more or less important or relevant than any other’s in purely political matters although, at some stage, legal issues may present themselves.

    Whether one likes the outcome of the Referendum or not [and there will be consequences both good and bad] it was promised to the electorate by the Government on certain terms and those certain terms have been satisfied. The terms were simple and they entitled the electorate, which was fully aware that the vote may go either way, to determine by simple majority whether or not it wished to remain in the EU.

    At this juncture it is notable that the electorate was never canvassed about joining the EU. The popular decision in 1975 was based on Britain joining the EEC [as it then was] which was very different to the EU. It is further notable that in 1975 some already suspected/foresaw the direction in which the EEC was moving. I refer, of course, to Tony Benn’s and Roy Jenkins’ interview with David Dimbleby when Benn correctly forecast that the EEC was merely a precursor to a Europe wide government [Jenkins disagreed] where, at least some, sovereignty will be surrendered. One might ask why the British were never canvassed.

    A second Referendum may produce the same or a different result but, assuming a different result, should the electorate be allowed a further Referendum? And, if so, how many referenda must be endured? When will the ‘right’ result be achieved? Is the only acceptable result the one that one wanted? One might remember at this point that when Ireland voted against the Lisbon Treaty, the referendum was re-run with the result that the EU’s desired result was achieved and no further referendum was allowed. Was this ‘democratic’? Would Adam have written what he did if his desired result was achieved or would he have written in similar terms but for the other way?

    The question posed by Adam was whether or not a second Referendum was ‘democratic’. The answer to this question must be yes. Why? Because unlike other political determinations made in Britain, this question was directly determined by the populace itself and not by a number of politicians who can not always be properly described, or relied upon, as representative of the national will. Put another way, this Referendum was direct democracy in action. Ergo, it has more moral authority than any parliamentary decision.

    All of this is to say that one must accept the rough with the smooth, right or wrong. None of this is to say that one cannot be unhappy with the result or that one may not speak against it.

  13. First of all I would like to say that I am usually in agreement with Adam but, not on this occasion. I also make no representations about the result of the Referendum right or wrong, I comment only on his comments.

    It seems to me that Adam has approached the Referendum with the eyes of a lawyer determining legal issues but the Referendum was more than a legal issue, it was a political issue first and foremost. Therefore legal opinion on any particular facet in this matter may be regarded as secondary to the overall political desire. One must also remember that judicial/legal opinion is not infallible and the proponents of such do not, and did not, possess superior intellect to other members of the public in matters such as this. They are, and always were, just as susceptible to various influences, predilections and prejudices as any other person. A lawyer’s eye view is therefore no more or less important or relevant than any other’s in purely political matters although, at some stage, legal issues may present themselves.

    Whether one likes the outcome of the Referendum or not [and there will be consequences both good and bad] it was promised to the electorate by the Government on certain terms and those certain terms have been satisfied. The terms were simple and they entitled the electorate, which was fully aware that the vote may go either way, to determine by simple majority whether or not it wished to remain in the EU.

    At this juncture it is notable that the electorate was never canvassed about joining the EU. The popular decision in 1975 was based on Britain joining the EEC [as it then was] which was very different to the EU. It is further notable that in 1975 some already suspected/foresaw the direction in which the EEC was moving. I refer, of course, to Tony Benn’s and Roy Jenkins’ interview with David Dimbleby when Benn correctly forecast that the EEC was merely a precursor to a Europe wide government [Jenkins disagreed] where, at least some, sovereignty will be surrendered. One might ask why the British were never canvassed.

    A second Referendum may produce the same or a different result but, assuming a different result, should the electorate be allowed a further Referendum? And, if so, how many referenda must be endured? When will the ‘right’ result be achieved? Is the only acceptable result the one that one wanted? One might remember at this point that when Ireland voted against the Lisbon Treaty, the referendum was re-run with the result that the EU’s desired result was achieved and no further referendum was allowed. Was this ‘democratic’? Would Adam have written what he did if his desired result was achieved or would he have written in similar terms but for the other way?

    The question posed by Adam was whether or not a second Referendum was ‘democratic’. The answer to this question must be no. Why? Because unlike other political determinations made in Britain, this question was directly determined by the populace itself and not by a number of politicians who can not always be properly described, or relied upon, as representative of the national will. Put another way, this Referendum was direct democracy in action. Ergo, it has more moral authority than any parliamentary decision.

    All of this is to say that one must accept the rough with the smooth, right or wrong. None of this is to say that one cannot be unhappy with the result or that one may not speak against it.

    • There are a couple of fundamental problems in this line of argumentation.

      “The terms were simple and they entitled the electorate, which was fully aware that the vote may go either way, to determine by simple majority whether or not it wished to remain in the EU.”

      Except, of course, that a sizeable number of voters are on record stating precisely the opposite – they were not fully aware of this at all and did not mean their vote to be taken as an expression on EU membership, but merely as a vote of protest against the general status quo.

      “At this juncture it is notable that the electorate was never canvassed about joining the EU. ”

      Wholly unnecessary in a representative democracy – that’s what we have elections for.

      “It is further notable that in 1975 some already suspected/foresaw the direction in which the EEC was moving. I refer, of course, to Tony Benn’s and Roy Jenkins’ interview with David Dimbleby when Benn correctly forecast that the EEC was merely a precursor to a Europe wide government [Jenkins disagreed] where, at least some, sovereignty will be surrendered. ”

      There is nothing notable about this at all. The road to an ever close union has been in the treaties since the coal and steel union. It was stated plainly and obviously in any of the successive treaties.

      And that some sovereignty will be surrendered is, as the article points out, true for any and all international treaties, as they oblige the parties to certain conduct and thus limit their freedom of choice.

      ” One might remember at this point that when Ireland voted against the Lisbon Treaty, the referendum was re-run with the result that the EU’s desired result was achieved and no further referendum was allowed. ”

      One might remember no such thing if one has accurate memory. When Ireland voted against the Lisbon Treaty, exemptions from specific regulations were granted and, convinced by those changes, the Irish public approved the new conditions with a two-thirds majority.

      “Put another way, this Referendum was direct democracy in action. Ergo, it has more moral authority than any parliamentary decision.”

      That presupposes that direct democracy is inherently superior to representative democracy – a question of political philosophy leaving ample room for debate. If anything, this case illustrates quite well why direct democracy does NOT necessarily represent the will of the people.

      • Response to Tyelko

        I make no representations about the result of the Referendum right or wrong, I comment only on his comments.

        Re:
        “The terms were simple and they entitled the electorate, which was fully aware that the vote may go either way, to determine by simple majority whether or not it wished to remain in the EU.”
        Except, of course, that a sizeable number of voters are on record stating precisely the opposite – they were not fully aware of this at all and did not mean their vote to be taken as an expression on EU membership, but merely as a vote of protest against the general status quo.
        Response
        Maybe there is “a sizeable number of voters” etc. but these may be regarded as post facto. If the vote had gone the other way there would also be “a sizeable number of voters”.
        There is no evidence [real meaning of the word] to show that,
        a] “they were not fully aware” and
        b] “did not mean their vote to be taken as an expression on EU membership” and
        c] “merely a vote of protest against the general status quo”.
        These are, at best, post facto assumptions.
        The voters were clearly and succinctly asked if they wanted to remain within the EU and nothing more. There can be, and is, no reasonable or objective assumption that the voters did not know what they were asked to decide. Moreover, the electorate cannot properly or reasonably be said to be entirely unintelligent or unaware of the consequences of its actions. If one is wrong on this then one might ask why elections are not re-run when the ‘wrong’ result comes about?
        It may be the case that the electorate, in part, had ulterior motives for voting as it did but that doesn’t alter the fact that a majority, rightly or wrongly, decided to leave the EU.
        Re.
        “At this juncture it is notable that the electorate was never canvassed about joining the EU. ”
        Wholly unnecessary in a representative democracy – that’s what we have elections for.
        Response
        You say that that the lack of canvassing is “wholly unnecessary” etc. but others may say the exact opposite. Who is right and what metrics apply? Who decides what is “necessary”? Whether or not something is “necessary” is irrelevant. What is more apposite and honourable is whether the canvassing of the people is desirable when the direction of the country is to be determined.
        What is inherently wrong with the electorate having a direct say in the direction of the country? One might further ask whether or not “representative democracy” is democracy at all?
        Re.
        “It is further notable that in 1975 some already suspected/foresaw the direction in which the EEC was moving. I refer, of course, to Tony Benn’s and Roy Jenkins’ interview with David Dimbleby when Benn correctly forecast that the EEC was merely a precursor to a Europe wide government [Jenkins disagreed] where, at least some, sovereignty will be surrendered. ”
        There is nothing notable about this at all. The road to an ever close union has been in the treaties since the coal and steel union. It was stated plainly and obviously in any of the successive treaties.
        And that some sovereignty will be surrendered is, as the article points out, true for any and all international treaties, as they oblige the parties to certain conduct and thus limit their freedom of choice.
        Response
        The EU was created on the 1st November 1993, the Maastricht Treaty. Prior to this date there were other institutions and treaties which had different functions with some overlap. There was no canvassing of the electorate on membership of the EU per se.
        The original development of the European Union was based on a supranational foundation that would “make war unthinkable and materially impossible” and reinforce democracy amongst its members as laid out by Robert Schuman and other leaders in the Schuman Declaration [1950] and the Europe Declaration [1951]. This principle was at the heart of the European Coal and Steel Community [ECSC] [1951], the Treaty of Paris [[1951] and later the Treaty of Rome (1958) which established the European Economic Community [EEC].
        There is nothing necessarily inherent in surrendering sovereignty when one enters into a treaty. It may be that the terms of a treaty exactly promotes, mirrors, or even enhances, a party’s sovereign will.
        In any event, whether or not I am right about all of this, what is inherently wrong with a plebiscite to determine whether or not the electorate wished to remain in the EU? Is the electorate banned from changing its mind even if it had voted to join in the first place [which it did not]? What is inherently wrong in a country wishing to maintain, or restore, its sovereignty especially when a majority is dissatisfied with the extant arrangements? Greenland did it.
        Re.
        “One might remember at this point that when Ireland voted against the Lisbon Treaty, the referendum was re-run with the result that the EU’s desired result was achieved and no further referendum was allowed.”
        One might remember no such thing if one has accurate memory. When Ireland voted against the Lisbon Treaty, exemptions from specific regulations were granted and, convinced by those changes, the Irish public approved the new conditions with a two-thirds majority.
        Response
        It seems that you have supported the point, “exemptions were granted”. In other words, the original Treaty was unacceptable to the Irish in its original form and so the EU modified the Treaty to accommodate the Irish will and the Referendum re-run. What if those concessions were never made? What concessions were offered to Britain, if any?
        At this juncture it is noteworthy that Britain was not given the opportunity to vote on the Lisbon Treaty. Why not?
        Re.
        “Put another way, this Referendum was direct democracy in action. Ergo, it has more moral authority than any parliamentary decision.”
        That presupposes that direct democracy is inherently superior to representative democracy – a question of political philosophy leaving ample room for debate. If anything, this case illustrates quite well why direct democracy does NOT necessarily represent the will of the people.
        Response
        It presupposes nothing. No subjective evaluations on the superiority of direct democracy v. representative democracy have been made save to say that direct democracy has greater moral authority and this is because each individual who voted had a direct say and that say was not filtered by others who claim to represent the will of the people which, in this case, proved to be errant.
        One might ask oneself at this point if politicians always canvass the electorate on any issue and if they always get things right? Do politicians always act in the best interests of the electorate or do they sometimes/often vote on party lines or for some other ulterior motive? Do politicians always uphold their own political promises or do they often renege? Do politicians truly represent the will of the people on every issue? Are politicians really and inherently intellectually superior to the electorate?
        What better way is there of determining the will of the people than asking the people directly?

  14. First of all I would like to say that I am usually in agreement with Adam but, not on this occasion. I also make no representations about the result of the Referendum right or wrong, I comment only on his comments.

    It seems to me that Adam has approached the Referendum with the eyes of a lawyer determining legal issues but the Referendum was more than a legal issue, it was a political issue first and foremost. Therefore legal opinion on any particular facet in this matter may be regarded as secondary to the overall political desire. One must also remember that judicial/legal opinion is not infallible and the proponents of such do not, and did not, possess superior intellect to other members of the public in matters such as this. They are, and always were, just as susceptible to various influences, predilections and prejudices as any other person. A lawyer’s eye view is therefore no more or less important or relevant than any other’s in purely political matters although, at some stage, legal issues may present themselves.

    Whether one likes the outcome of the Referendum or not [and there will be consequences both good and bad] it was promised to the electorate by the Government on certain terms and those certain terms have been satisfied. The terms were simple and they entitled the electorate, which was fully aware that the vote may go either way, to determine by simple majority whether or not it wished to remain in the EU.

    At this juncture it is notable that the electorate was never canvassed about joining the EU. The popular decision in 1975 was based on Britain joining the EEC [as it then was] which was very different to the EU. It is further notable that in 1975 some already suspected/foresaw the direction in which the EEC was moving. I refer, of course, to Tony Benn’s and Roy Jenkins’ interview with David Dimbleby when Benn correctly forecast that the EEC was merely a precursor to a Europe wide government [Jenkins disagreed] where, at least some, sovereignty will be surrendered. One might ask why the British were never canvassed.

    A second Referendum may produce the same or a different result but, assuming a different result, should the electorate be allowed a further Referendum? And, if so, how many referenda must be endured? When will the ‘right’ result be achieved? Is the only acceptable result the one that one wanted? One might remember at this point that when Ireland voted against the Lisbon Treaty, the referendum was re-run with the result that the EU’s desired result was achieved and no further referendum was allowed. Was this ‘democratic’? Would Adam have written what he did if his desired result was achieved or would he have written in similar terms but for the other way?

    The question posed by Adam was whether or not a second Referendum was ‘democratic’. The answer to this question must be no. Why? Because unlike other political determinations made in Britain, this question was directly determined by the populace itself and not by a number of politicians who can not always be properly described, or relied upon, as representative of the national will. Put another way, this Referendum was direct democracy in action. Ergo, it has more moral authority than any parliamentary decision.

    All of this is to say that one must accept the rough with the smooth, right or wrong. None of this is to say that one cannot be unhappy with the result or that one may not speak against it.

  15. Someone – Ralph Waldo Emerson? – once said that the person who doesn’t change their mind doesn’t think. We routinely put the question of who governs the country to the electorate on a regular basis, at least once every five years and sometimes (as in 1974) twice in the space of a few months. The inevitably differing outcomes indicate that a number of people have changed their views since the last time they voted, and we rightly regard this as a celebration of democracy rather than an affront to it. The same would be true of a second referendum were we to hold one. Two other considerations: firstly, this is a momentous decision which, once implemented, will be irreversible. It will also take up to two years to implement. As the implications of so doing become clear (Adam’s point 6), there should be ample time to hold a second referendum on the question of whether, having set a particular course, we want to continue on it. All those who voted a certain way last week are free to vote the same way again, or to change their minds. I can’t see in any way in which that could possibly be labelled un-democratic. Secondly, because we generally don’t ‘do’ referenda, we have no expertise in how to do them. On matters of constitutional upheaval such as this, most other countries require decisions to be made by (eg) a two-thirds majority, or to be endorsed by a certain percentage of the electorate. A simple majority is insufficient, they would regard a result as close as last week’s as indecisive, and we should take note of this.

    • Personally, I think the referendum should have asked if we wanted an Economic Union or a Political Union. Those that voted Out would have voted to have an Economic Union. I blame the Prime Minister for the outcome. I voted Out because I don’t want a political union that has led the country to many wars. I believe EU is a USA project and the ongoing part of the Marshall Plan that has been kept a secret since after WWII. It has always been a plan to keep the USSR and now Russia out of the EU. Can anyone tell me why Russia is not a member and has never been asked to be a member? Is it not a European country? There is an Agenda in the EU and the reason I voted Out.

      I also believe in Free Trade and personally, although I am not a prophet, I believe these trade blocs will eventually lead to conflict. As they say, history repeats itself but we always ignore it. We should go back to how it was in the past when each country built relationships with other countries instead of trying to build one with a bloc. That’s how serious war was kept out of Europe from about the fifteenth century until the nineteenth century.

      Finally, the people have decided. If we want to follow in the footsteps of general elections as you suggested, we could end up having referendum for ever!

      Actually, it would be nice to have single items in elections. They could ask if the NHS budget should be increased or not; whether to allow so many immigrants in every year, etc. I believe such exists in the USA, where States have what they call “proposition” on ballots.

  16. Hard reading for late at night for an old and therefore useless person but I plugged on.
    Essentially as I understand it, all of the arguments fall on the ‘lies were told on both sides and were shown to be so’, and ‘we didn’t understand’.
    Well I had spotted all the lies on both sides I think but it is was omissions that had a big an effect.
    But despite all this, and because I’m old I voted leave, and would do again.
    One thing that does concern me though, and I am a long retired serviceman, would the fact of another vote cause insurrection.

  17. The European parties all seemed to think they had a duty to see that the UK public gets its way. It may not make any difference what we decide this side of the Channel now.

    As to ‘democracy’: this country has never been a democracy, and this referendum was the nearest it has ever come to doing anything democratic.

    Now is the time for the public to have its own referendum and remove the privilege of political parties to run Parliament for their own benefit instead of ours. The country must be run by the electorate through *their*, not Party, representatives. There should be no one Party cabinet and no ego tripping prime minister. Even the European Commissioners have a duty to represent the people of the EU: not Parties, or even individual countries.

    Get the Parties out, and let’s take this opportunity to have a real representative democracy. One where pig shagging primadonnas get sacked by their constituents and put in the village stocks where they belong.

  18. No comment on the substance of the post; but please accept grateful thanks for using (and congratulations for being the first person I’ve read who has used) the plural form ‘referenda’.

  19. It is correct that the legal analysis of the situation somewhat avoids many of the political issues as a means of maintaining its focus.

    One of those political issues would be the question: What if the petition for a second referendum reached a figure greater than the Brexit vote? Such as situation, irrespective of the legality of the question being asked, reduces the room for political manoeuvrability, adding to the split in the country, and it is probable that political will has been exercised to avoid being limited in that way.

    There can be no doubt the Brexit vote has illustrated a lost nation, will leaving the EU heal that or will the dissatisfaction merely shift between groups?

    The prime minister must have been correct in avoiding telling the populace that he would resign if Brexit won, as that would have added a party political tone to the referendum rather than maintaining a focus on the discussion point being put forward. Much like a few responses to the original blog entry here.

  20. Am I under a misapprehension thinking that we have General Election in order to appoint MP’s to become our delegates in regard to matters of State. If I m wrong let’s scrap ParIiament and have Government by on-line/postal referendum. We’d save a fortune in MP expenses.

  21. Dear Adam Wagner,

    This is another of my occasional “compliments” communications to you. I forwarded your excellent article to my usual crowd of public affairs/current events/international (for us, not you) relations friends, all of whom have had nothing but the highest praise for your lucid review of important Brexit-related issues.

    In fact, one of my main current events discussion groups usually recesses over the summer. But we have just decided, democratically, by a much wider margin than you just did, to convene a special meeting for the sole purpose of discussing your article. That includes members who cringe or whose faces turn purple whenever the term “human rights” comes up, so an additional triumph for you.

    Excuse my enthusiasm, but you know how Americans get.

    Anyway, congratulations again. Keep up the good work.

    Donna Gomien Santa Fe, New Mexico (which is, in fact, a real live US State)

    P.S. Now all I have to do is figure out how to edit/print out the comments…..

  22. We had ‘Lost’ our markets, long held, in the Empire and sought an arrangement with the EC and it worked by and large from a business point of view, surely we cannot recover these lost markets now so are bound by the EU rules just the same when out, but with less clout? That was not covered by information available from government prior to the referendum.

  23. Very interesting and considered article Adam. In terms of those who didn’t vote, are they not represented in our democracy? Surely our democratically elected and sovereign representatives (MPs) should by definition represent the 28% of non voters with their considered view for the country’s best interests, which was overwhelmingly a decision to remain?

  24. Response to Tyelko

    I make no representations about the result of the Referendum right or wrong, I comment only on his comments.

    Re:

    “The terms were simple and they entitled the electorate, which was fully aware that the vote may go either way, to determine by simple majority whether or not it wished to remain in the EU.”

    Except, of course, that a sizeable number of voters are on record stating precisely the opposite – they were not fully aware of this at all and did not mean their vote to be taken as an expression on EU membership, but merely as a vote of protest against the general status quo.

    Response

    Maybe there is “a sizeable number of voters” etc. but these may be regarded as post facto. If the vote had gone the other way there would also be “a sizeable number of voters”.

    There is no evidence [real meaning of the word] to show that,

    a] “they were not fully aware” and

    b] “did not mean their vote to be taken as an expression on EU membership” and

    c] “merely a vote of protest against the general status quo”.

    These are, at best, post facto assumptions.

    The voters were clearly and succinctly asked if they wanted to remain within the EU and nothing more. There can be, and is, no reasonable or objective assumption that the voters did not know what they were asked to decide. Moreover, the electorate cannot properly or reasonably be said to be entirely unintelligent or unaware of the consequences of its actions. If one is wrong on this then one might ask why elections are not re-run when the ‘wrong’ result comes about?

    It may be the case that the electorate, in part, had ulterior motives for voting as it did but that doesn’t alter the fact that a majority, rightly or wrongly, decided to leave the EU.

    Re.

    “At this juncture it is notable that the electorate was never canvassed about joining the EU. ”

    Wholly unnecessary in a representative democracy – that’s what we have elections for.

    Response

    You say that that the lack of canvassing is “wholly unnecessary” etc. but others may say the exact opposite. Who is right and what metrics apply? Who decides what is “necessary”? Whether or not something is “necessary” is irrelevant. What is more apposite and honourable is whether the canvassing of the people is desirable when the direction of the country is to be determined.

    What is inherently wrong with the electorate having a direct say in the direction of the country? One might further ask whether or not “representative democracy” is democracy at all?

    Re.

    “It is further notable that in 1975 some already suspected/foresaw the direction in which the EEC was moving. I refer, of course, to Tony Benn’s and Roy Jenkins’ interview with David Dimbleby when Benn correctly forecast that the EEC was merely a precursor to a Europe wide government [Jenkins disagreed] where, at least some, sovereignty will be surrendered. ”

    There is nothing notable about this at all. The road to an ever close union has been in the treaties since the coal and steel union. It was stated plainly and obviously in any of the successive treaties.

    And that some sovereignty will be surrendered is, as the article points out, true for any and all international treaties, as they oblige the parties to certain conduct and thus limit their freedom of choice.

    Response

    The EU was created on the 1st November 1993, the Maastricht Treaty. Prior to this date there were other institutions and treaties which had different functions with some overlap. There was no canvassing of the electorate on membership of the EU per se.

    The original development of the European Union was based on a supranational foundation that would “make war unthinkable and materially impossible” and reinforce democracy amongst its members as laid out by Robert Schuman and other leaders in the Schuman Declaration [1950] and the Europe Declaration [1951]. This principle was at the heart of the European Coal and Steel Community [ECSC] [1951], the Treaty of Paris [[1951] and later the Treaty of Rome [1958] which established the European Economic Community [EEC].

    There is nothing necessarily inherent in surrendering sovereignty when one enters into a treaty. It may be that the terms of a treaty exactly promotes, mirrors, or even enhances, a party’s sovereign will.

    In any event, whether or not I am right about all of this, what is inherently wrong with a plebiscite to determine whether or not the electorate wished to remain in the EU? Is the electorate banned from changing its mind even if it had voted to join in the first place [which it did not]? What is inherently wrong in a country wishing to maintain, or restore, its sovereignty especially when a majority is dissatisfied with the extant arrangements? Greenland did it.

    Re.

    “One might remember at this point that when Ireland voted against the Lisbon Treaty, the referendum was re-run with the result that the EU’s desired result was achieved and no further referendum was allowed.”

    One might remember no such thing if one has accurate memory. When Ireland voted against the Lisbon Treaty, exemptions from specific regulations were granted and, convinced by those changes, the Irish public approved the new conditions with a two-thirds majority.

    Response

    It seems that you have supported the point, “exemptions were granted”. In other words, the original Treaty was unacceptable to the Irish in its original form and so the EU modified the Treaty to accommodate the Irish will and the Referendum re-run. What if those concessions were never made? What concessions were offered to Britain, if any?

    At this juncture it is noteworthy that Britain was not given the opportunity to vote on the Lisbon Treaty. Why not?

    Re.

    “Put another way, this Referendum was direct democracy in action. Ergo, it has more moral authority than any parliamentary decision.”

    That presupposes that direct democracy is inherently superior to representative democracy – a question of political philosophy leaving ample room for debate. If anything, this case illustrates quite well why direct democracy does NOT necessarily represent the will of the people.

    Response

    It presupposes nothing. No subjective evaluations on the superiority of direct democracy v. representative democracy have been made save to say that direct democracy has greater moral authority and this is because each individual who voted had a direct say and that say was not filtered by others who claim to represent the will of the people which, in this case, proved to be errant.

    One might ask oneself at this point if politicians always canvass the electorate on any issue and if they always get things right? Do politicians always act in the best interests of the electorate or do they sometimes/often vote on party lines or for some other ulterior motive? Do politicians always uphold their own political promises or do they often renege? Do politicians truly represent the will of the people on every issue? Are politicians really and inherently intellectually superior to the electorate?

    What better way is there of determining the will of the people than asking the people directly?

  25. Just to note that we’ve already had a second referendum on membership of the EU. That was the one last week. Another one would be the third. Those people complaining that the results of the 2nd referendum should be considered binding, and those who lost should simply get over it, don’t seem to have applied the same thought process to the results of the previous referendum in 1975.

  26. What would be the objection to a question along the lines, once negotiations are far enough advanced, “This is what Brexit actually means – do you accept that or would you prefer things as they are?” It seems unlikely that there is a majority at present for any particular outcome, so why should we not put a second question? Assuming the practicalities of the operation of article 50, and of EU politics, allow that of course. And I think it would be necessary, certainly desirable, for the UK Government to make it clear at the outset that it was going to take that course.

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