The last three years have been tense to say the least. The country is still divided on Brexit, with polls now showing a slight lean towards Remain. Since the 2016 referendum, the Liberal Democrats and Greens have campaigned furiously for a second referendum, whilst Labour and the Tories have largely rejected this. But what would a second referendum do?
First of all, a second referendum is permitted by the law. Under the European Union Referendum Act 2015 the result of the Brexit vote was purely advisory. Neither Parliament nor the government is bound to deliver Brexit - it was merely an indication of public opinion. Most referendums are advisory, it is worth noting, with explicit language in legislation entitling the government to ignore the vote (though they never have). The judgment in R (Miller) v Brexit Secretary also stressed the advisory nature of the referendum, and underlined the importance of parliamentary sovereignty.
One thing that is interesting is how both sides increasingly have respected the results of referendums. Prior to the Brexit vote, both Remainers and Brexiteers pledged to deliver the will of the people, as expressed by the results. However, when the first nationwide referendum was held in 1975 (also on the issue of Europe), major political leaders publicly pledged their intention to ignore the vote should it not go their way (in any event, it did), but there is an argument to be made that politicians today are more respecting of the sovereignty of the people than the sovereignty of Parliament.
The impact on the wider constitutional framework of the United Kingdom would be, in my opinion, minimal. This 'once-in-a-lifetime' vote on European membership is, in fact, the second such referendum we have had in 50 years - at best, twice-in-a-lifetime. One of the major arguments against holding a second Brexit referendum is that it would undermine our faith in democracy - you can't just hold another vote when you don't like the outcome of a first one, surely? In fact, similar occurrences happen frequently.
There were four general elections held in the 1920s, two in 1979, and when the 2015 election delivered a majority Conservative government, May still felt the need to call an election two years later in order to give the electorate another chance to bolster her party. Elections are, at their core, an opportunity for the country to reconsider their last choice; they can increase or decrease majorities, elect a new government, or deliver a hung parliament. Very few members of the general public wanted a snap general election in 2017, but we had one because party leaders wanted one, and the same would arguably be the case with a second referendum.
This brings us on to a key element of referendums (and my primary reason for advocating against them). Referendums are fundamentally at risk to be manipulated by the elites. The 1975 referendum was called because of divisions in the Labour party, the 2016 referendum was called to settle arguments in the Conservative party, and the 2011 AV referendum (which had a dismal turnout of 42%) was due to the urging of the Lib Dems in coalition. Whilst there was undoubtedly some level of public demand for all of these votes, it was not the will of the majority of the electorate, and definitely not a top priority for anyone but the ideological wings of each party. Tierney in particular makes a convincing argument that the primary reason for holding referendums is for party political purposes.
I do not feel a second referendum would irreparably damage confidence in democracy - people would undoubtedly be angry (particularly Brexiteers) - but if people viewed it as a chance to change their minds or restate their views, just as they would in a general election, it wouldn't damage confidence in democracy, it would likely bolster it.
In terms of the devolved nations, the judgment in Miller stated that the Sewel Convention (which states that Westminster can't legislate for the devolved nations) was political, and couldn't be judged in a court of law. As a result, the UK Parliament retains the power to legislate for Scotland, Northern Ireland, and Wales on competences devolved to their respective assemblies and parliaments. Devolution would, therefore, not likely be impacted by a second referendum, in strict terms of law.
A second referendum could cause divisions, debates, and a greater fracturing of the United Kingdom, and may have unintended consequences of Scottish independence and the breakdown of the two party system, but for now, a second referendum would have a limited constitutional impact, as far as I can see, and it wouldn't ignore the 52% or the 48% but would, inevitably, give both camps the attention they need to get their voices heard once again.
The opinions of this article are solely those of the author and are not intended to provide accurate legal advice for anyone to rely on. While the content is intended to be factually correct, the author does not accept any responsibility or liability arising from the use or misuse of this article or any loss/inconvenience/damage stemming from this. Legal advice should be sought from a qualified professional, not this blog. The opinions represented in this blog are personal and belong solely to the blog owner, and do not represent those of the people, institutions, or organisations that the owner may or may not be associated with in a professional or personal capacity, unless explicitly stated. The views expressed by any podcast guest are their own entirely, and do not necessarily reflect those of the blog owner. The blog owner is not responsible and liable for any discrepancy, if any. Any content provided by this blog or its companion podcast is not intended to malign any religion, ethnic group, club, organisation, company, individual, or anyone or anything.
First of all, a second referendum is permitted by the law. Under the European Union Referendum Act 2015 the result of the Brexit vote was purely advisory. Neither Parliament nor the government is bound to deliver Brexit - it was merely an indication of public opinion. Most referendums are advisory, it is worth noting, with explicit language in legislation entitling the government to ignore the vote (though they never have). The judgment in R (Miller) v Brexit Secretary also stressed the advisory nature of the referendum, and underlined the importance of parliamentary sovereignty.
One thing that is interesting is how both sides increasingly have respected the results of referendums. Prior to the Brexit vote, both Remainers and Brexiteers pledged to deliver the will of the people, as expressed by the results. However, when the first nationwide referendum was held in 1975 (also on the issue of Europe), major political leaders publicly pledged their intention to ignore the vote should it not go their way (in any event, it did), but there is an argument to be made that politicians today are more respecting of the sovereignty of the people than the sovereignty of Parliament.
The impact on the wider constitutional framework of the United Kingdom would be, in my opinion, minimal. This 'once-in-a-lifetime' vote on European membership is, in fact, the second such referendum we have had in 50 years - at best, twice-in-a-lifetime. One of the major arguments against holding a second Brexit referendum is that it would undermine our faith in democracy - you can't just hold another vote when you don't like the outcome of a first one, surely? In fact, similar occurrences happen frequently.
There were four general elections held in the 1920s, two in 1979, and when the 2015 election delivered a majority Conservative government, May still felt the need to call an election two years later in order to give the electorate another chance to bolster her party. Elections are, at their core, an opportunity for the country to reconsider their last choice; they can increase or decrease majorities, elect a new government, or deliver a hung parliament. Very few members of the general public wanted a snap general election in 2017, but we had one because party leaders wanted one, and the same would arguably be the case with a second referendum.
This brings us on to a key element of referendums (and my primary reason for advocating against them). Referendums are fundamentally at risk to be manipulated by the elites. The 1975 referendum was called because of divisions in the Labour party, the 2016 referendum was called to settle arguments in the Conservative party, and the 2011 AV referendum (which had a dismal turnout of 42%) was due to the urging of the Lib Dems in coalition. Whilst there was undoubtedly some level of public demand for all of these votes, it was not the will of the majority of the electorate, and definitely not a top priority for anyone but the ideological wings of each party. Tierney in particular makes a convincing argument that the primary reason for holding referendums is for party political purposes.
I do not feel a second referendum would irreparably damage confidence in democracy - people would undoubtedly be angry (particularly Brexiteers) - but if people viewed it as a chance to change their minds or restate their views, just as they would in a general election, it wouldn't damage confidence in democracy, it would likely bolster it.
In terms of the devolved nations, the judgment in Miller stated that the Sewel Convention (which states that Westminster can't legislate for the devolved nations) was political, and couldn't be judged in a court of law. As a result, the UK Parliament retains the power to legislate for Scotland, Northern Ireland, and Wales on competences devolved to their respective assemblies and parliaments. Devolution would, therefore, not likely be impacted by a second referendum, in strict terms of law.
A second referendum could cause divisions, debates, and a greater fracturing of the United Kingdom, and may have unintended consequences of Scottish independence and the breakdown of the two party system, but for now, a second referendum would have a limited constitutional impact, as far as I can see, and it wouldn't ignore the 52% or the 48% but would, inevitably, give both camps the attention they need to get their voices heard once again.
The opinions of this article are solely those of the author and are not intended to provide accurate legal advice for anyone to rely on. While the content is intended to be factually correct, the author does not accept any responsibility or liability arising from the use or misuse of this article or any loss/inconvenience/damage stemming from this. Legal advice should be sought from a qualified professional, not this blog. The opinions represented in this blog are personal and belong solely to the blog owner, and do not represent those of the people, institutions, or organisations that the owner may or may not be associated with in a professional or personal capacity, unless explicitly stated. The views expressed by any podcast guest are their own entirely, and do not necessarily reflect those of the blog owner. The blog owner is not responsible and liable for any discrepancy, if any. Any content provided by this blog or its companion podcast is not intended to malign any religion, ethnic group, club, organisation, company, individual, or anyone or anything.
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