Brexit: it’s a word that is on everyone’s lips at the moment (though begrudgingly for most of us). Over two years have elapsed since one of the most historic and divisive political controversies in recent times. Two years, several legal challenges and a host of ministerial resignations later, very little seems to have been resolved. So, it has to be asked therefore whether, due to a recent surge in popularity, a second referendum – the so-called People’s Vote – should *seriously* be considered.
The arguments for a second referendum in those early post-Brexit days were advanced largely on procedure. A referendum holds no legally binding effect – its purpose is purely advisory. It is a tool by which the government and Parliament can test the waters of public opinion and make suggestions upon which they could act, rather than those upon which they are necessarily obliged to act. This all works very well in theory, but practice proves rather different.
The constitutional role of government in the United Kingdom is largely based on democratic legitimacy. We allow Parliament and the government legislative powers and the role of governance because it is, we, the electorate who have given them the mandate to do so. This is why we are not ruled by the Crown or, indeed, by the judiciary (and why we fiercely protect the apolitical status of those institutions – though this does not always work in practice). So, if Parliament’s actions are only legitimised through the will of the majority, then going against that will would be to both invalidate their constitutional role and the rule of law.
So, the crux of the argument in favour of a second referendum, in procedural terms, fails here. Although the government and Parliament is not technically legally bound to carry through Brexit, there is a normative obligation here. An abandonment of the withdrawal procedure now would surely cause a constitutional crisis in which Parliament has acted beyond their democratic mandate. This is why it is so easy for the most ardent supporters to advocate for pushing through Brexit, regardless of whether a deal is reached or not.
However, it cannot be said that the Britain today is the same one that voted in the 2016 referendum. In pursuit of securing Brexit, the incumbent Conservative government has lost many senior Cabinet members in as many months, the Prime Minister has faced the most historic defeat in the House of Commons since 1924, and only slimly survived a vote no confidence motioned against her by the opposition. Public opinion seems to favour a second vote; if not on whether to leave or remain, then on the final deal that the government (who have not been entirely forthcoming) are proposing.
So, the question remains whether the public should be allowed to change their minds. There is a paradox here. In continuing to push the agenda and outcome of the initial referendum, Parliament and the government could now be acting contrary to the public’s interests. Interestingly however, they may still technically be fulfilling their democratic duty as mandated by the electorate in 2016.
This simply highlights the inflexibility of Westminster government and the inherent problem with referendums as a guide for legal change. Public opinion is not a fixed variable, it is transient and changes with time and is influenced by party politics and domestic and global affairs. The bureaucratic processes of both the Parliament at Westminster and the European Union in Brussels are ill-equipped to deal with the rapidity of such change. Through this, they have risked becoming out-of-touch and unresponsive to the citizens to which they are inherently accountable. If the majority no longer want Brexit, surely it is the duty of Parliament to respond to this change – simply to ignore it and plough blissfully on ahead challenges the vary basis of its democratic legitimacy.
This is all well and good to say, but again this boils down to the theory versus practice debate. The role of the government, as well as representing the electorate, is to provide stable and lasting leadership (strong and stable, if you like). It would perhaps prove impractical and counter-intuitive to reconsider policy little more than two years after its inception based on public outrage or disapproval. If this was applied to the rest of government, laws would perhaps never get passed, and governments would live in constant fear of people changing their mind after a general election. These are all remote possibilities, but the can of worms, once opened, may prove difficult to close.
The People’s Vote represents a unique movement to challenge the Brexit process. Like all things Brexit, it is riddled with uncertainties and contradictions. However, in this post-Brexit world, who knows what could happen – we should perhaps wait with bated breath therefore.
Words by Joey Lewin