Theme: Government & Parliament | Content Type: Blog

A Second Brexit Referendum: The Problem of Constitutional Agency

Albert Weale



| 7 mins read

There might be many reasons why you think a second referendum should not be held on the UK’s 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 that taken at its flood should be acted on: now is the time to act.

However, you may also oppose a second referendum from the opposite point of view. As a Remain voter, your sentiments might have been lukewarm and you now think it is time to move on. If there is going to be divorce, let us not prolong the agony. Even if you are a fervent Remainer, you might be cautious about a second referendum. You might be worried that the vote would go the same way as before, perhaps with an even larger majority, confirming the UK’s departure in a way that will make it more difficult to re-apply for membership in the future. Remainers who have become Rejoiners can be just as sceptical about the value of a referendum as Leavers.

All three of these positions are based on pragmatic reasoning. Given a set of goals – to leave, to get on with other priorities or to rejoin later – you make a judgement as to how far a second referendum will advance or retard them. Make a different judgement about the possible consequences of holding a second referendum, and advocates of each of these positions will change their minds.

However, there is a different sort of argument about the second referendum. That is an argument of democratic principle. Many conscientious people hold that it would be an affront to democratic values to hold a second referendum. But are people right to think in this way? That is the question I shall be exploring in a series of blogs, beginning with this one.

Consider, first, an argument from procedural legitimacy, stated by Archbishop John Sentamu in The I on 3 December 2018 (page 21) explaining why as a member of the House of Lords he would vote in favour of the Prime Minister’s negotiated withdrawal treaty. Its essence is that the first priority in a democracy is to maintain respect for democratic law-making institutions, and that rerunning referendums, even for a good cause, subverts agreed decision-making procedures.

Taken in the abstract this argument has great merit. But it clearly depends on how much agreement there really is on the relevant decision-making procedures, and at this point the famous flexibility of the UK constitution becomes a source of ambiguity.

All the legislation setting up the referendum said relating to the status and role of the vote was that ‘a referendum will be held’. The rest of the act concerned solely matters of mechanics – 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 stated quite clearly that the referendum was pre-legislative or advisory.

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

So what are the reasonable expectations that a voter could have formed of the results of the referendum, given this constitutional ambiguity?  Our voter might reasonably have expected that were the referendum result to be Leave, then the government would trigger the process of the UK leaving the EU, even if the result were close. However, that is about it. Inaugurating the process would not have precluded the government or parliament committing themselves to a second confirmatory referendum on the withdrawal agreement.  In fact, no reasonable voter could have discounted the need for further parliamentary decision, since a referendum by itself cannot legislate.

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

One difficulty with this argument is that, whatever was said, the referendum could never have been a one-off binding process. The process of the leaving the EU by itself does not settle the question of the future relationship.

Suppose Theresa May’s agreement was passed. It leaves entirely open a whole set of questions about any future relationship between the UK and the EU. Suppose that the final shape of that relationship looked like a Norway or a Switzerland option, as sometimes advocated by Leavers. One can make a good case for saying that a referendum would be needed to legitimate whatever choice was to be made about the future. Leaving the EU and forming a future relationship is not an event, it is a process. And who is to say that once that process has been entered, second thoughts might not occur?

It is a fundamental UK constitutional principle that no parliament can bind its successors. Ironically, it was John Redwood, arguing the Leave case for the referendum in the Commons, who invoked this principle. Procedural legitimacy is an important democratic value. But if the procedure is as open as the UK constitution allows, there is a strict limit as to how far it can bind future choice.

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    Albert Weale

    Albert Weale is Emeritus Professor of Political Theory and Public Policy at University College London. His latest book is Modern Social Contract Theory (OUP, 2020). 

    Articles by Albert Weale