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2016: Advisory and Binding
24 Oct, 2017

Since the 2016 referendum was advisory, some Remainers argue that Parliament and the Government should just reject the electorate’s advice. Michael Romberg argues otherwise.

Our task is to persuade 2016’s Leave voters to vote Remain, not to treat them as children by setting aside their vote. This comment is the second in a series about why the 2016 referendum is politically binding, but only provisional: we should have a referendum once we know what Brexit will look like with the option to Remain. 

The Meaning of “Advisory”

The June referendum was legally advisory and yet politically binding. Parliament has the legal power to set the referendum result aside but not the political authority.

We have only ever had one legally binding referendum. Had the result of the referendum on proportional representation been in favour of change, the relevant legal provisions would have come into effect directly. So the 2011 referendum question was not whether people were in favour of PR, or a particular form of PR or whether the people wished the Government and Parliament to go off and legislate for PR. It was whether a specific legislative provision should be brought immediately into direct effect.

Brexit of course is too complicated for that. The referendum was therefore consultative.

We can work out what words like “consultative” and “advisory” mean by looking at what happened after this one.

David Cameron resigned saying the will of the people must be respected. Theresa May became Prime Minister heading a Brexit government to implement the expressed will of the people. A government department for Brexit was been set up with its own Secretary of State. Jeremy Corbyn said that the referendum result means that the country will leave the UK. In the 2017 general election both main parties supported Leave and attracted 82% of voters. The referendum result has been politically binding.

Advisory does not mean Opinion Poll

Some Remainers refer to the referendum as “the June 2016 opinion poll”. If the government had wanted an opinion poll it could have commissioned one more cheaply. The 2016 referendum was a major statutory public democratic event.

To claim otherwise reminds me of Brecht’s joke about the East German government which had complained that the rebellious people had forfeited the confidence that the government had had in them. Brecht responded that it would be easiest if the government dissolved the people and elected another. 

Was there really only one right answer?

Brexit is just a policy like any other. How should the UK conduct its international relationships? People may have differing views on the question.

If Parliament is now to vote to keep us in the EU irrespective of the referendum result, why did Parliament refer the question to the electorate in the first place?

If there was only ever one right answer then the referendum ballot paper should have said: Welcome to the 2016 Brexit Referendum. Parliament has decided that we will Remain in the EU. Your views are of no account. You may go home now. Feel free to keep the ballot paper as a souvenir.      

Objective: to heal the country

Our objective of course is not to stay in the EU, but to heal the country while we Remain. What would be the aftermath of a Parliamentary vote to stop Brexit, an elite stitch-up to negate what had been in part an anti-elite vote.

First, political. Would Leave voters passively let their Brexit victory be taken away from them? Or would we see UKIP - or some other Brexit MP - winning every seat with a Leave majority in the referendum. UEA Academic Chris Hanretty estimated that in June 2016, 401 of 632 seats in Great Britain voted Leave. There would then be a Brexit government. It would take us out of the EU. With turbochargers.

Second, societal. Part of the basis for the Leave vote was that voters felt forgotten by the political nation. Overturning their referendum victory would obviously make it worse. How would people respond then? Can we be sure that the worst response would be to vote UKIP? Remember, UKIP, although unpleasant, has been democratic. They have fought elections and a referendum. What will Leave voters do if we demonstrate to them that democratic methods do not work?

Burnley fish and chip shop owner Liz Pugh predicted civil war if the Government did not go through with Brexit. While that is an exaggeration, we should take the point seriously.

The losing side need to think they have been treated fairly and that they have had every chance to make their case.

The answer to a democratic reverse? More democracy.

Let’s do a thought experiment

Let’s imagine Remain had won the 2016 referendum 52:48.

Then suppose that on 24 June David Cameron had stood on the steps of Downing Street and said: “Thank you for your advice. But, you know what? I found negotiating with the EU on the reform package really irritating. I’m sick of the lot of them. I have sent in our Article 50 notification anyway.

Would those Remainers who can recite off by heart the House of Commons Library briefing note on consultative vs binding referenda still insist that the referendum was only advisory?

Conclusion

To overturn a decision reached by a referendum requires a new referendum. Only that has the political authority to change or confirm course, only that offers the prospect of the losing side believing they have had every chance to put their case.

We should accept the 2016 referendum as mandating the Government to pursue Brexit. However, that mandate is provisional until a plan has been produced. No-one takes a project from idea to implementation without a review of the plan. So there should be a referendum on the terms.

  • Michael Romberg is a retired senior civil servant and a member of the Committee of London4Europe