A bit like the referendum on the terms

London4Europe Committee member and former Home Office senior civil servant Michael Romberg looks at the UK’s one legally binding referendum.

Like almost all UK referenda, the 2016 vote was advisory. That produced quite a lot of misunderstanding amongst Remainers when the vote did not go as we wished. Some thought that it meant that Parliament could just set the result aside. But of course the referendum was – quite rightly – seen as politically binding. Changing the UK’s course requires us to obtain and win a referendum on the terms of Brexit.

The reason for making the 2016 referendum advisory was that the question is not suitable for a legally binding verdict. Legally binding would mean that people could be taken to court for failing to act on it. You need only think about events since 2016 to see how that would not work. Has Theresa May implemented the referendum or not? How would the courts test whether the referendum had been implemented? (If the question had been “should the Prime Minister send in the Article 50 notice within six months?” that could have been legally binding, but would also not have been sensible as it would have told us nothing useful about what Brexit meant.)

(The referendum on the terms would also not be legally binding.)

Alternative Vote referendum

The AV referendum in 2011 was our only legally binding referendum.

It was quite different from 2016. The coalition partners had considered the options for proportional representation and settled on that one. The public were then asked a very definite question: shall we move to this specific different voting system or shall we stick with what we have?

The result could be legally binding because Parliament had passed an Act that set out in detail the rules of the new electoral system. The Act included a provision mandating the government to bring the new provisions into force if the referendum provided a majority for change.

Had we in the AV referendum been asked the equivalent question to 2016 it would have been: “Proportional representation, or what we have?” Then advocates of different – incompatible – concepts of PR (more here on AV and other voting systems) would have made their cases, and if there had been a yes vote no-one would have known what it meant. After all, “PR means PR” does not get you very far.

Then we would not have known without a further referendum whether the PR model eventually preferred by Parliament and Government would have commanded more public support than first past the post.

Australia and the Monarchy

In 1999, Australia had a referendum on whether to become a republic. For years there had been majorities in opinion polls in favour of republicanism. Prime Minister John Howard convened a constitutional convention to consider the options. It looked at three main options for how to constitute a republic and eventually settled on one. That single option was put forward in the referendum.

So the referendum choice was between two concrete plans: the present system (monarchy with the governor-general representing the Queen) or a specific model for the rôle and appointment of the head of state, the “Bi-partisan appointment republican model”. By a majority of 55:45 Australia voted to stay a monarchy.

The support for republicanism in the abstract did not turn into support for that particular concrete proposition. That is largely because some people preferred monarchy to this proposal, even though they would have preferred some other form of republic to monarchy.

I have no view on what the right answer was. But this way of proceeding allowed the Australians to make an informed choice.

Given where we are…

2016 was a vote on an idea. Nothing wrong with that. But there then needs to be a vote on a plan. Because only when you have a defined plan can you take a final decision because only then do you know what your decision actually means. That is the case for the referendum on the terms of Brexit with the option to Remain.

Conclusion

Moral of the story: if you are going to have a referendum, then either:

(1) ask a question where both answers are clearly directly actionable with no doubt about what they mean; or

(2) set it up as a two stage process: a vote on an idea; and a vote on the plan. Jacob Rees-Mogg and David Davis clearly agreed (in different circumstances; but the principle of informed consent is the same).

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