Referendums aren’t set in stone

Writing here last week Gerald Warner declared that “there is no moral or qualitative difference between repudiating the result of the 2016 EU referendum and blocking the outcome of the 1945 general election, or the 1979 election… You either accept the democratic verdict produced by universal suffrage, or you don’t…”

Well, I see his point of course. As Labour’s Attorney-General, Sir Hartley Shawcross, told the House of Commons after his party’s sweeping victory in that 1945 election, “we are the masters now”. So indeed they were, and the defeated Conservative Party accepted the result and set to work preparing to win the next election. They failed in 1950, though they reduced Labour’s majority in the Commons to single figures, but succeeded the following year when Labour chose to go to the polls again. Labour was no longer the master.

As we all know this is how it goes in a parliamentary democracy. There is a General Election. Sometimes the party in power wins again and remains in government. Sometimes it loses and goes into opposition. The point is that whether we opt for change or not, the opportunity is there. The democratic verdict delivered in a general election is temporary.

But it seems that a referendum is to be considered different. The democratic verdict is to be cast in stone, now and forevermore, amen. So, in Gerald Warner’s opinion, it would be outrageous to have a second EU referendum.

This is odd, or at least a little odd, because the referendum in 2016 was itself the second referendum on the UK’s membership of the European body. Of course, changes had taken place since there was a substantial majority in 1975 for remaining in what was then the European Economic Community.

So it was perhaps reasonable to ask the question again. Certainly, I don’t remember Mr Warner denouncing the proposal for a referendum in 2016 as a refusal to “accept the democratic verdict produced by universal suffrage “in 1975. I am sure he would have said that circumstances had changed and opinions with them.

Now, although only three years have passed since that second referendum, it may well be that opinions have changed again. Certainly the circumstances have. In 2016 the Leave campaign offered no clear prospectus. Nobody, or almost nobody, then talked of a No Deal Brexit.

There was no talk of an Irish backstop. Some spoke of the Norway option which might be called a semi-detached relationship with the EU, others of a Canada option. Little was said about the complexity of departure. On the contrary, we were given the impression that it would a simple business, as simple, one may say, as the change of Government after a general election.

As for changes of opinion, we simply don’t know. Some polls indicate Remain would win; others don’t. It is quite possible – even perhaps likely – that a Leave campaign which stirred up resentment of what can be portrayed as European obstructionism would be even more successful than the 2016 one. Indeed, if I was a Leaver, I would be tempted to call a referendum to confirm the Will expressed by the People three years ago, and I rather think I would get away with it.

The truth is that a referendum is a clumsy device- Churchill thought it one for dictators and demagogues. It is tolerable as a way to settle questions which cross-party line, but, even then, only if the decision can be reversed as easily as the verdict given in a general election can be reversed a few years later. So a referendum on a moral question such as assisted suicide or on a political question like the voting system may be all right – acceptable even if you think such matters are better settled in Parliament – because there is no great upheaval if the decision is changed if opinion changes.

Constitutional questions are another matter. The winning side will claim that the question has been settled. The one that lost will prepare for a replay. In Scotland even leaders of the SNP spoke of the 2014 Independence referendum as a “once in a generation” opportunity. Within months of losing the referendum – by a wider margin than the Remainers’ defeat in 2016 – the Nationalists were calling for a re-run. Given that Brexit represents a change in circumstances, and given that the EU referendum produced such different results either side of the old Anglo-Scottish Border, it is difficult to see good reason for refusing the SNP demand for a second referendum.

Indeed you can do so only if you believe, as Mr Warner seems to believe, that “the democratic verdict produced by universal suffrage” on one particular day must stand for all time – or at least for forty-one years 1975-2016.

What we are seeing is a shift from parliamentary or representative democracy to populist or plebiscitary democracy. Parliamentarians, like Churchill and Attlee in 1945, would have viewed such a development with misgivings. They were elected to use their judgement in Government or Opposition, not to surrender it to the Will (or Whim) of the People; and this is how they acted. Attlee famously committed the UK to the development of its own Atomic Bomb without consulting the People, without even consulting Parliament, without, still more remarkably, consulting, or even informing, his full Cabinet.

Well, things are different now, and Gerald Warner, whom I have long thought of with some admiration as the Highest of High Tories, a Cavalier of Cavaliers, now approves of the Dictatorship of the People as they express their Sovereign Will by a majority of 4 per cent in a Referendum, a decision that is to be immutable. By an amusing irony, this gives the British Constitution a more European look. It was, after all, by means of a plebiscite or referendum that Louis-Napoleon replaced the second French Republic by the Second Empire.