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Constitution & Convention: What’s Stopping A Second Brexit Referendum?

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About The Author

Ninad Bhagwat (Guest Contributor)

Ninad is a history graduate who completed the GDL in June at BPP. He is an aspiring solicitor, with a particular interest in commercial law. Outside the law, he is keen runner and completed the Richmond Marathon in September raising money for Cancer Research UK.

©Ilovetheeu

To ask the question again would be a gross betrayal of our democracy - and a betrayal of trust.

Theresa May

The decision of the public to leave the European Union is probably the most divisive issue in the United Kingdom today, second only, perhaps to the possibility to having a second referendum on the matter. A YouGov Poll this summer found that support for ‘Remain’ had climbed to 53 percent, with ‘Leave’ at 47 percent. Clearly, two years following the vote, the country is still more or less evenly divided on the issue, even as the likelihood of a no-deal Brexit looms.

Theresa May’s quotation is typical of the kind of argument put forward by Brexiteers to deny the need for another referendum - in their view, ‘the people have spoken’ and this cannot be ignored. This argument rests on the status of a referendum as a binding mandate to government from the people, and can be contrasted with statements like that of Sir Simon Roberts, who has argued that it is:

[C]omplete balderdash to say the people have spoken, therefore you can’t go back. The people can speak again - why can’t we have another vote on it?

This statement has found traction with a number of Remainers, and asserts that they are essentially nothing greater than a glorified opinion poll. The latter view is technically, in legal terms, correct: the idea that referendums are binding is just a political convention.

So why then are many politicians so fixed to the notion that having another referendum would be a betrayal? This article will first examine the nature of political conventions and their place in the British politico-legal system, and then go on to consider the implications of having another Brexit referendum.

Conventions in the UK Constitution

The UK constitution is rather unique in the sense that is uncodified; it is not contained in a single document, but is instead made up of a myriad of legal and non-legal sources. Legal sources are the skeleton of the constitution, and comprise - among others - legislation, case law and EU law. The non-legal sources flesh it out in a less formal, though equally important, way.

Conventions are one of the most important non-legal sources. They are informal rules of practice that have developed in an evolutionary way but, unlike rules of law, do not have a clear source in legislation or case law. They are a flexible means of changing and developing the constitution informally and ‘fill in the gaps’ in the UK constitution, as noted by Ian Loveland. Conventions are not legally binding and when there is conflict between convention and legislation, the courts must enforce the law. For example, the Queen – as the constitutional head of state – has the legal right to refuse to give royal assent to any bills that she is presented. By convention, however, she does not.

As aforementioned, the binding nature of a referendum result is merely a convention, though an old and powerful one. A.V. Dicey, writing in the 1890s, wrote approvingly of referendums as devices for the people to express authoritative opinions on matters of great constitutional significance. JDB Mitchell wrote that conventions cannot be regarded as less important than rules of law and that, often, it is the legal rule which is the less important. He points out that precedent also plays an operative role in the formation of conventions as it does in rules of law. This is, however, rather a stretch. Conventions, as previously discussed, are secondary to official legislation when there is a conflict but it serves to reiterate the significance that eminent academics ascribe to them. There are few instances, if any, in which conventions are ignored. Should the Brexit referendum be one of those situations?

Can the ‘People’s Vote’ Be Distinguished?

Is the prospect of a ‘no deal’, economic uncertainty and potential friction in Ireland sufficient grounds for another vote? In terms of constitutional principles, no. The House of Lords Select Committee, in response to the Political Parties, Elections and Referendums Act 2000 (PPERA 2000), made a number of interesting remarks on the topic of whether referendums are advisory or binding. They concluded that, due to the sovereignty of Parliament, they cannot be legally binding in the UK and are therefore advisory.

However, it would be difficult for Parliament to ignore a decisive expression of public opinion. This is why, in the vote to trigger Article 50 last year, MPs voted by 498 votes to 114 in favour of Brexit. There was a great deal of political grandstanding surrounding the vote, with former Chancellor George Osborne commenting that Parliament voting against the majority verdict would create a ‘deep constitutional crisis'.

It is important to remember that this is not the first referendum on membership of the European Community. In 1975, Harold Wilson’s Labour government posed the same question as their 2016 Conservative counterparts regarding the UK’s membership of the European Economic Community (EEC). This was despite the fact that the UK had only been a member for two years up to this point. During this vote, Wilson decided to suspend the convention of Cabinet unanimity. This convention dictates that all members of the Cabinet should back the official party line on issues in public forums. He argued, much like David Cameron in 2016, that the issue transcended party politics and MPs should be free to vote as their conscience dictated. So, if this convention can be sidelined at the Prime Minister’s behest surely it should apply equally to having another referendum.

However, ignoring the result would be difficult, if not impossible. By allowing the people to express an opinion on this single matter, Parliament in effect chose to divest itself of its sovereignty on membership. Thus, as a matter of practical politics, it is essentially impossible to consider the result as anything other than legally binding.

What Would Happen After Another Referendum?

If there were to be another referendum and the result came back in favour of ‘Remain’, as the current YouGov polls suggest, then the political divide would potentially be greater than it is right now. Arguably, and perhaps justifiably, ardent Brexiteers would demand a tie-breaker vote seeing as ‘Remain’ and ‘Leave’ now have one referendum result each. A facetious suggestion, perhaps, but certainly not out of the question.

The UK’s position with the EU would surely weaken. In an ideal world, the two parties would agree to revert back to the May 2016 status quo, though this is probably wishful thinking. The EU would not, one would imagine, seek to deliberately weaken the UK’s position but perhaps they would assert that this time the UK became more embedded into the system through the adoption of the Euro or signing up to the Schengen Agreement – EU expectations which the UK has previously skirted.

Alternatively, another ‘Leave’ victory could deliver the clarity required. Perhaps this would answer the never-ending debate over a ‘hard’ or ‘soft’ Brexit; a second ‘Leave’ victory arguably suggests the former, that the people want to leave the EU at all costs. Admittedly this is rather a simplification, but it would certainly put to bed any doubt on whether or not the UK will leave the EU. But, to achieve this clarity, there must first be another referendum.

A second referendum would not, however, answer some of the more delicate issues like the Irish border. Instead, it would call into question the future of the UK itself. Since the Scotland Act 1998, there has been a continuing devolution of power from Westminster to Holyrood, though Westminster remains sovereign. This is encompassed in the Sewel Convention, which states that Westminster will not legislate on matters that solely affect Scotland without the consent of the Scottish Parliament. Since Scotland voted overwhelmingly in favour of remaining in the EU, it is likely that the SNP will ask for a second independence referendum.

Alex Salmond, former SNP leader, used their success in the 2011 Scottish Parliamentary elections as justification for offering the Scottish people an opportunity to express a view on whether they wanted Scotland to be an independent country. Nicola Sturgeon may quite justifiably promulgate a similar suggestion with regards to the Brexit referendum: Scotland clearly wanted a different relationship to the EU than the rest of the UK, hence they should be given the opportunity to pursue such a relationship independently.

Another referendum, then, would likely create as many new problems as there are currently, irrespective of the result. It would almost certainly create a constitutional crisis with the existence of the UK itself being challenged.

Conclusion

Conventions are powerful rules and de facto practices that play an integral part in the political and legal systems of the UK. Respecting the precedents borne out of them allow the system to function smoothly; simply ignoring, or overturning, one is no simple task. Certainly, no one would dream of ignoring the aforementioned Sewel Convention for the political and legal uproar that it would create in Scotland. In the Canadian Case of Reference re Questions Concerning Amendment of Constitution of Canada [1981], the Canadian Supreme Court noted that:

[I]t is perfectly appropriate to say that to violate a convention is to do something which is unconstitutional.

But if it were to be violated, who has the authority to make such a decision? Surely, as the sovereign body, Parliament would have this jurisdiction. But, as discussed, Parliament has chosen to divest itself of sovereignty to the people it represents.

One could argue that some conventions have been suspended in the past by Prime Ministers, namely cabinet unanimity in relation to the 1975 and 2016 referendums. However, this was so that said ministers could exercise their political rights and views freely on a matter that ‘transcended’ party politics. A Prime Minister does not have the jurisdiction in regards to the result of a referendum, though. Additionally, in practical terms the current Prime Minister does not have clear majority in the House, not to mention the schisms in the major parties, so a Parliamentary Bill is not really a solution either.

It appears, therefore, that a Second Referendum is highly unlikely in practical and theoretical terms. Perhaps a happy compromise is the ‘People’s Vote’ - a chance for the people to have a say on the final terms of any Brexit deal. This seems to be a way to keep both sides satisfied, to an extent, while ensuring that the people’s voice is actually heard.

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Tagged: Administrative Law, Brexit, European Union, Parliamentary & Elections

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