{"id":2430,"date":"2019-02-22T11:44:46","date_gmt":"2019-02-22T11:44:46","guid":{"rendered":"https:\/\/politicalquarterlyblog.preliveweb.site\/?p=2430"},"modified":"2019-02-22T11:44:54","modified_gmt":"2019-02-22T11:44:54","slug":"a-second-brexit-referendum-the-problem-of-constitutional-agency","status":"publish","type":"post","link":"https:\/\/politicalquarterlyblog.preliveweb.site\/?p=2430","title":{"rendered":"A second Brexit referendum: The problem of constitutional agency"},"content":{"rendered":"\n

There might be many reasons why you\nthink a second referendum should not be held on the UK\u2019s membership of the EU. Most\nobviously, if you are a Leaver, you think that the referendum has provided a\nunique opportunity for the UK to leave the EU. There is a tide in the affairs\nof men that taken at its flood should be acted on: now is the time to act. <\/p>\n\n\n\n

However, you may also oppose a\nsecond referendum from the opposite point of view. As a Remain voter, your\nsentiments might have been lukewarm and you now think it is time to move on. If\nthere is going to be divorce, let us not prolong the agony. Even if you are a\nfervent Remainer, you might be cautious about a second referendum. You might be\nworried that the vote would go the same way as before, perhaps with an even\nlarger majority, confirming the UK\u2019s departure in a way that will make it more\ndifficult to re-apply for membership in the future. Remainers who have become Rejoiners\ncan be just as sceptical about the value of a referendum as Leavers.<\/p>\n\n\n\n

All three of these positions are\nbased on pragmatic reasoning. Given a set of goals \u2013 to leave, to get on with\nother priorities or to rejoin later \u2013 you make a judgement as to how far a\nsecond referendum will advance or retard them. Make a different judgement about\nthe possible consequences of holding a second referendum, and advocates of each\nof these positions will change their minds.<\/p>\n\n\n\n

However, there is a different sort\nof argument about the second referendum. That is an argument of democratic\nprinciple. Many conscientious people hold that it would be an affront to\ndemocratic values to hold a second referendum. But are people right to think in\nthis way? That is the question I shall be exploring in a series of blogs,\nbeginning with this one.<\/p>\n\n\n\n

Consider, first, an argument from\nprocedural legitimacy, stated by Archbishop John Sentamu in The I<\/em> on 3\nDecember 2018 (page 21) explaining why as a member of the House of Lords he\nwould vote in favour of the Prime Minister\u2019s negotiated withdrawal treaty. Its\nessence is that the first priority in a democracy is to maintain respect for\ndemocratic law-making institutions, and that rerunning referendums, even for a\ngood cause, subverts agreed decision-making procedures.<\/p>\n\n\n\n

Taken in the abstract this argument has\ngreat merit. But it clearly depends on how much agreement there really is on\nthe relevant decision-making procedures, and at this point the famous\nflexibility of the UK constitution becomes a source of ambiguity. <\/p>\n\n\n\n

All the legislation setting up the referendum said relating to the status and role of the vote was that \u2018a referendum will be held\u2019. The rest of the act concerned solely matters of mechanics \u2013 important in themselves, but providing no guidance as to the significance and authority of the referendum itself. The House of Commons Library paper on the bill<\/a> stated quite clearly that the referendum was pre-legislative or advisory. <\/p>\n\n\n\n

Yet, the second reading debate in\nthe House of Commons proceeded on the assumption that it would be binding. Indeed,\na number of speakers were worried that if Leave lost, they would continue to\npress for another referendum! The Article 50 process requires a member state to\nmake decisions in accordance with its own constitutional procedures. Trouble is\nbound to arise if those procedures are threadbare or ambiguous.<\/p>\n\n\n\n

So what are the reasonable\nexpectations that a voter could have formed of the results of the referendum, given\nthis constitutional ambiguity?  Our voter\nmight reasonably have expected that were the referendum result to be Leave,\nthen the government would trigger the process of the UK leaving the EU, even if\nthe result were close. However, that is about it. Inaugurating the process\nwould not have precluded the government or parliament committing themselves to\na second confirmatory referendum on the withdrawal agreement.  In fact, no reasonable voter could have\ndiscounted the need for further parliamentary decision, since a referendum by\nitself cannot legislate. <\/p>\n\n\n\n

Against this it might be argued that\nduring the referendum campaign itself voters were repeatedly told by both sides\nin the campaign that the referendum would be decisive. It was presented as a\nonce-in-a-generation opportunity to make a decision about continuing membership\nof the EU. None of these claims had any formal constitutional status, but you\ncan argue that they were sufficiently widespread and pervasive to form a sort\nof constitutional convention. If enough people act as though it is the case\nthat the referendum is a one-off binding process, then it is a one-off binding\nprocess.<\/p>\n\n\n\n

One difficulty with this argument is\nthat, whatever was said, the referendum could never have been a one-off binding\nprocess. The process of the leaving the EU by itself does not settle the\nquestion of the future relationship. <\/p>\n\n\n\n

Suppose Theresa May\u2019s agreement was\npassed. It leaves entirely open a whole set of questions about any future\nrelationship between the UK and the EU. Suppose that the final shape of that\nrelationship looked like a Norway or a Switzerland option, as sometimes\nadvocated by Leavers. One can make a good case for saying that a referendum\nwould be needed to legitimate whatever choice was to be made about the future. Leaving\nthe EU and forming a future relationship is not an event, it is a process. And\nwho is to say that once that process has been entered, second thoughts might\nnot occur?<\/p>\n\n\n\n

It is a fundamental UK constitutional\nprinciple that no parliament can bind its successors. Ironically, it was John\nRedwood, arguing the Leave case for the referendum in the Commons, who invoked\nthis principle. Procedural legitimacy is an important democratic value. But if\nthe procedure is as open as the UK constitution allows, there is a strict limit\nas to how far it can bind future choice.<\/p>\n<\/span>","protected":false},"excerpt":{"rendered":"

There might be many reasons why you think a second referendum should not be held on the UK\u2019s membership of the EU. Most obviously, if you are a Leaver, you think that the referendum has provided a unique opportunity for the UK to leave the EU. There is a tide in the affairs of men […]<\/p>\n","protected":false},"author":122,"featured_media":2431,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":"","_links_to":"","_links_to_target":""},"categories":[1390,1395],"tags":[],"coauthors":[1584],"class_list":["post-2430","post","type-post","status-publish","format-standard","has-post-thumbnail","category-brexit","category-comment"],"amp_enabled":true,"jetpack_featured_media_url":"https:\/\/politicalquarterlyblog.preliveweb.site\/wp-content\/uploads\/2019\/02\/A-second-Brexit-referendum-The-problem-of-constitutional-agency-petradr-176-unsplash-scaled.jpg","_links":{"self":[{"href":"https:\/\/politicalquarterlyblog.preliveweb.site\/index.php?rest_route=\/wp\/v2\/posts\/2430","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/politicalquarterlyblog.preliveweb.site\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/politicalquarterlyblog.preliveweb.site\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/politicalquarterlyblog.preliveweb.site\/index.php?rest_route=\/wp\/v2\/users\/122"}],"replies":[{"embeddable":true,"href":"https:\/\/politicalquarterlyblog.preliveweb.site\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=2430"}],"version-history":[{"count":0,"href":"https:\/\/politicalquarterlyblog.preliveweb.site\/index.php?rest_route=\/wp\/v2\/posts\/2430\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/politicalquarterlyblog.preliveweb.site\/index.php?rest_route=\/wp\/v2\/media\/2431"}],"wp:attachment":[{"href":"https:\/\/politicalquarterlyblog.preliveweb.site\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=2430"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/politicalquarterlyblog.preliveweb.site\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=2430"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/politicalquarterlyblog.preliveweb.site\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=2430"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/politicalquarterlyblog.preliveweb.site\/index.php?rest_route=%2Fwp%2Fv2%2Fcoauthors&post=2430"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}