Introduction: Multiple votes, one referendum

Even before the vote on 23 June 2016, questions were raised about the possibility of a ‘second’ referendum. I place the term ‘second’ in inverted commas because the idea that another vote means another referendum reflects a misunderstanding both about (i) what a referendum is and (ii) the role of referendums in the United Kingdom’s constitutional arrangements. On the ‘second’ referendum view, a referendum is synonymous with a vote. This is not the case. I will argue in this post that a referendum is a multi-stage process of referring a question to voters. This does include one vote, but may well include multiple votes. I will also argue that the conflation of referendums with votes underlies many of the flaws of the Brexit referendum in particular and the use of referendums in the United Kingdom in general. This is not a political argument for or against Brexit. It is a constitutional argument about what the role can and should be for voting in the process of constitutional reform through referendums in the United Kingdom.

Brexit and the ad hoc uses of referendums in the UK

In the case of Brexit, the vote in the referendum was used to begin a process of constitutional reform. I will argue shortly that this is not the best role for voting in a referendum process, but it is first necessary to establish that this is not the only role that voting might play. Votes in referendums have been used in many different ways in the United Kingdom. Sometimes votes have been used to trigger Bills becoming law and to approve proposals before they become law. A few examples of this approach include (i) the devolution referendums in Scotland and Wales in 1979, (ii) the Referendum on the Belfast Agreement in 1998, and (iii) the Alternative Vote referendum in 2011. In many cases, however, the role of voting in referendums is ambiguous. A good example of this is the Scottish Independence referendum of 2014 where a comprehensive white paper was central to the debate about the referendum question, but was not tied to the referendum question itself. In the 2014 Scottish Referendum case, though, at least the assumptions underlying the case for independence were articulated. These examples demonstrate that not all referendums are created equal. Some are more successful than others.

The success conditions of a referendum

A referendum is successful when it satisfies the reasons for holding a referendum in the first place. This means it addresses disagreement in a decisive way, providing people with a reason to go along with the outcome of the referendum, irrespective of whether they agree. This does not mean it resolves disagreements altogether; neither votes nor referendums can do that. But what referendums can do is provide additional direction to representatives about how voters want to proceed when there is disagreement about constitutional reforms. Votes alone, however, are limited in the direction they can provide. They can provide general but not specific guidance to representatives. The best way to remedy the general character of voting is by connecting votes in referendums to proposals for reform.

The importance of proposals for reform

There are three reasons that (at least provisional) proposals for reform are helpful for successful referendums. The first is that they help ensure referendum outcomes are consonant with other democratic values. Proposals for reform require and include the consultation, compromise, and consideration of minority rights that democracies require. Further, these processes of consultation and compromise, as well as the recognition that fundamental rights will be protected, are part of what give voters a reason to go along with outcomes they do not agree with. Additionally, proposals improve the debate that precedes the vote in referendums because voters are weighing the merits of tangible options rather than hypotheticals. Finally, proposals are important because after the vote the direction given to representatives is clear. Ideally, these processes where proposals are created will be driven by constitutional conventions that are (i) led by the public and (ii) open to the public. Given the limits of voting, it is important that voters have other opportunities to help determine the content of constitutional reforms through these sorts of processes.

Referendums and the limits of voting

As Dicey argues in the Introduction to the Study of the Law of the Constitution, the referendum is best understood as ‘The People’s Veto.’ Dicey says referendums are expressions of popular sovereignty and the preferences of the electorate, but they are best understood as negative expressions of popular sovereignty. What Dicey means by this is that votes in referendums are well placed to demonstrate what voters do not want. They are best understood, Dicey says, as ‘checks against ill-considered constitutional changes that do not command broad public sanction.’ Dicey is right about this. Given the variety of views that voters have when they vote, votes in referendums are not well placed to articulate what voters do want specifically out of a proposal for constitutional reform. When votes in referendums begin processes for reform, they are too blunt an instrument to aggregate political will about what those reforms should include: although of course they do demonstrate that such reforms are necessary. The role for voting in referendums Dicey advocates, and I support here, reflects the idea that the ultimate source of authority in a democracy is voters, but it takes seriously the limits of how voters’ preferences can be articulated through the act of voting alone. Luckily, though, voting is only one part of a (successful) referendum process.

Referendums in legislation: The problem persists

Unfortunately, Brexit is not an isolated case where votes and referendums have been conflated. This misunderstanding is enshrined in legislation too. Consider, for instance, s 1(1) of the Northern Ireland Act 1998 which holds:

(1) It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1.

(2) But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland.

Consider too s 63A(3) of the Scotland Act 2016 which says:

‘… it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum.’

Both of these Acts hold that the role for voting in referendums is to begin rather than approve processes of constitutional change. This is starker in the case of the Northern Ireland Act 1998 which holds that a vote in a referendum triggers the creation of a proposal for reform. Implicit in the Scotland Act too is the idea that votes are meant to come first and proposals for constitutional reform are to come afterwards. This legislation demonstrates that the misconceptions at the heart of the Brexit referendum also go beyond Brexit.

Should there be another vote in the Brexit referendum?

When I was young, and lost drivers would stop and ask my parents for directions, my Mom and Dad would often say: ‘Well if you’re trying to get to there I wouldn’t have started from here!’ This is one of the challenges which underlies the Brexit referendum and the question of whether there should be another vote: I would not have started from here. Ideally, there ought to have been a referendum on the Lisbon Treaty. Such a referendum would indeed have approved proposals for reform. The decision not to hold such a referendum, even though one was promised on the earlier Constitution Treaty, created the intractable political problems which eventually led to Brexit. It is not just New Labour, however, who tactically misused referendums. Both through acts and omissions, all governments since the 1970s have contributed to referendums evolving without underlying constitutional principle. The debate about referendums is now so confused that in law, theory, and politics they are conflated with bare votes. This confusion in turn has created a situation where another vote on Brexit is treated as a ‘second’ referendum rather than another part of a process of constitutional reform which remains ongoing. Of course the first vote in the Brexit referendum means that some change to the UK’s relationship with the EU is required, but another vote would offer (at least some more) clarity about what voters think that change in relationship should mean.

Note on Submission. UCL’s Constitution Unit is currently holding an Independent Commission on Referendums (ICR) to consider the roles for referendums in the United Kingdom. The ICR continues to welcome submissions from specialists and interested members of the public. Some of the material in this post was also submitted as evidence as a part of that process.

Leah Trueblood is a Stipendiary Lecturer in Law at Hertford College, Oxford.

(Suggested citation: L. Trueblood, ‘The Merits and Meaning of a ‘Second’ Referendum’, U.K. Const. L. Blog (5th Feb. 2018) (available at https://ukconstitutionallaw.org/))