I’m a Remainer but I’m not campaigning for a second referendum

Last Saturday something like 100,000 people marched through Westminster demanding a second referndum on any final Brexit deal. The “People’s Vote” petition has gathered what, at present, seems a fairly modest number of 145,000 signatures at the time of writing, asking for the same thing. According to the Petition:

The future of this country and young people is too important to be decided by politicians alone, who cannot unite around the national interest.”

It is a mirror image of the argument that “politicians alone” should not have decided on our continued membership of the EU; a populist, anti-representative-democracy, argument that led directly to the 2016 referendum.

I voted remain. I thought the vote to leave was a dreadful mistake and nothing that has happened since has changed my mind. Indeed, the mistake has been compounded by a divided and incompetent government.

It seems probable that some sort of transition agreement will be reached in October, and 5 months later we will be outside the club, though permitted some of its benefits as long as we play by its rules. As with many compromises it will be something which almost nobody wanted. The alternative will be that no deal is struck – a position which terrifies many but which a few actually do want. Short of an agreement with the EU to extend the Article 50 “notice” period, or – even more unlikely – the agreed or unilateral revocation of our  notification, Brexit will now happen as a matter of law. Leaving to become, in the words of Jacob Rees-Mogg, a “vassal state,” does not sound very attractive, but walking out with no deal at all sounds like a pretty dire prospect too. Either option will, in my view, be much worse than staying in would have been.

So surely people like me, who voted to remain and would very much wish Brexit were not happening, should be signing the petition, marching and generally campaigning for another referendum in order to cancel out the terrible mistake of 2016, and restore the status quo ante?

We should not.

Quite apart from any argument of principle, there is an overwhelming practical argument against campaigning for a second referendum. There is simply no time available. The legal effect of serving notification of withdrawal from the EU under Article 50 of the Lisbon Treaty (supported by many of those, such as Chuka Umunna MP, now campaigning most vociferously for a referendum designed to prevent that very notification taking effect) is that unless the contrary is agreed by every member state, or the Article 50 notification is unilaterally withdrawn (which may not be legally possible), the UK will cease to be a member of the EU on March 29th next year.

Any referendum would have to take place in time to allow the other member states to agree, well before March 29th, that we can remain. That means it would have to take place months earlier, ideally in October, once the shape of the exit deal is clear, but certainly no later than the middle of January.

A second referendum would require an Act of Parliament. In emergencies, especially if there is broad consensus, Governments can pass legislation very quickly. But even if there is an emergency there is certainly not a consensus; rather more importantly there is not even a majority. Indeed, all the indications are that there is a substantial Parliamentary majority against having another referendum. It would be far too late to leave such legislation until next year. To have the slightest chance of having the time available to pass it (bearing in mind that it will face the most determined opposition), the legislation would need to have been introduced months ago.

Of course, the difficulty of the task does not necessarily mean that we should not try, otherwise many great political changes would never have been attempted. But where a task is near impossible and the time available is measured in a few months some attempts are simply futile. There is no point in wasting time, resources and credibility on futile campaigns.

But let us suppose that there was for some reason a dramatic shift in public mood, perhaps brought about either by the prospect of a dreadful deal, or by the growing realisation that there was not going to be a deal at all. Even then, the idea that, at the same time that it is trying to sell its Brexit deal (or absence thereof) to the nation, the Government would attempt to legislate for a referendum, the sole purpose of which would be to scupper that very deal (or no-deal) is simply delusional; as is the idea that it would then impose the various guillotines, whips and other instruments of coercion necessary to force it through Parliament, while simultaneously relying on the same instruments to drive through the vast and complex swathes of Brexit legislation which are already dangerously behind schedule.

And if, by some extraordinary concatenation of unforeseeable circumstances, the Government found itself in the contorted position of trying to convince its own MPs to vote to support its deal while simultaneously voting for emergency legislation designed to destroy that same deal, the Government’s credibility would be so shot to pieces that it could not survive, and nor would it deserve to.

Even if a Referendum Act was somehow passed, and a referendum was fixed for, say, November (a time of year usually regarded, for sound meteorological reasons, as an electoral “close season”), the campaign would not be an edifying spectacle. The country would be plunged, if that were possible, into still greater uncertainty, with nobody knowing whether we should be preparing to leave or preparing to stay. All the indications are that the country remains deeply split, with roughly equal numbers supporting Leave and Remain. The contest would be more bitter than last time and the margin of victory for either side would probably be similarly small. Parliament, of course, would have to be suspended for the campaign, further reducing the already inadequate amount of time available for the passage of the necessary legislation if in fact we are to leave, or its repeal if we are to stay, and reducing still further the already low chance that the country would be properly prepared for March 29th.

And the referendum would take place without knowing whether we even could remain, and if so on what terms. A successful attempt to revoke the Article 50 notification would require either a decision of the ECJ that it is legally revocable, or at least the absence of any legal challenge to its revocation; in effect the agreement of every member state. If it turned out that it was irrevocable, the referendum would have been in vain anyway. Where would that leave us? Forced either to leave, despite not wanting to do so, or to remain on terms dictated by the other members of the EU.

In the event of a last minute change of mind, would the EU, and its constituent states, be prepared to allow us to remain on the relatively favourable terms which we currently enjoy?  Would our rebate be continued at the same level? Would we face a demand for a higher contribution? Would we come under renewed pressure to join the Euro, or perhaps to provide it with financial guarantees of some sort? Would we be required to join Schengen? Or to take a larger share of refugees off the hands of Greece or Italy? The EU itself, or indirectly any individual member state, could demand a high price.

You’ve messed around and wasted our time for the last two and a half years,” they could say, or at least think if they were too polite to say it, “if you want to stay now, these are our terms, take them or leave them.”

Given the acute pressure of time, such demands could not possibly be resolved until after the referendum had been held. Leavers would then be able to make precisely the argument that Remainers are now making: that the referendum was held before all the relevant facts were known. The Government’s negotiating position in any post-referendum “Bremain” talks would be quite hopeless. With a decision to remain taken by referendum they could hardly then threaten to walk away, and they would be forced to hope for the benificence of the EU. Practically everyone would feel betrayed.

The truth, brutal for those like me who would wish it were not so, is that – barring an agreement to extend the Article 50 negotiating period, which is itself exceedingly unlikely – we are going to leave the EU on March 29th, whether we like it or not. The process cannot be stopped by a second referendum.

Perhaps it is just as well that it cannot, for the truth is that we are in our current mess because of the corrupting effect of the 2016 referendum on our constitution. The result of the dreadful decision to hold it is that MPs have, ever since, considered themselves to be mere delegates, bound to implement its result whatever their own views and whatever the changing circumstances. We have a Government carrying out a policy that the Prime Minister herself and many of her cabinet believe to be mistaken, and MPs voting for policy with which most of them disagree. However, the proper solution is not to have another referendum, which will only cause greater problems and legitimise still further the baleful role of referendums in the constitution; the proper solution involves, as far as possible avoiding the wretched things altogether.

I once learnt to fly. One of the things that you are taught is that there comes a point during the take-off run when your speed is so high – it is called V1 – that you cannot safely try to stop even if something is going wrong. Once you reach it you simply have to take off, even if your oil light is flashing red and your engine sounds as though it is about to conk out. Dangerous though it may be to fly, trying to stop is even more so (and, incidentally, one airborne it is seductively tempting and suicidal to try to return immediately to the perceived safety of the runway). We have, I am afraid, reached that point with Brexit. Even if a second referendum were desirable it is too late to demand one now. Shouting “Stop!” from the economy seats won’t help. All we can do is hope, in the teeth of all the evidence, that the pilot knows what she is doing. It’s time to tighten those pitifully inadequate lap straps and check the laminated cards for the proper way to adopt the brace position.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

17 thoughts on “I’m a Remainer but I’m not campaigning for a second referendum”

  1. Thank you Matthew.

    Several YouGov polls (all the most recent) show a decline in support for Brexit and a 23point lead for those wishing for a People’s Vote.

    You are right about referenda but sadly it happened and the only way the result can be reversed would be by another in my opinion.

    I suspect there is a dangerous lack of resoect for the Parliamentary process (esp Cabinet rule) partly due to incompetence as shown by the likes of Boris Johnson (his lack if diplomacy and stupidity), Grayling (in everything he has fine), Fox, et al…..and of course May herself. On top if one of the worst Tories Governments in living memory, we seem to have one of the least effective Oppositions.

    Two possibilities arise. There could be a delay in our leaving (doubtful) and the Government could fall (catastrophic at this point in time).

    I’m not sure what the outcome will be. It amazes me that anyone would vote to give our current politicians more power?

  2. Very strong Mathew, but Barnier who has the 27’s authority has said more time would be given if required. And he has been backed by the main players Tusk, Junker, Verstofen.

    The person who wrote it has confirmed we could revoke Article 50.

    What we are doing is like someone attempting suicide – do you not try to talk them out of it?

    I am minded that in the thirties, Argentina was expected to be the second most powerful nation in the second half of the 20th century and first half of 21st. Where are they now? That I fear is the future for our grand children.

  3. Those are all excellent reasons for not having a second referendum. For me, the reason is simpler. A second referendum, like the first, would involve a propaganda war where more glossy leaflets and persuasive speeches would attempt to invoke enthusiasm, fear, hope, optimism, pessimism and prejudice. Referendums are the equivalent of tossing a coin. Like the vote to choose an X-Factor winner which invariably chooses a mediocre performer with an interesting life story, the referendum vote simply chooses the more appealing narrative. There is no reason why we should trust a referendum to solve this problem. If we are to reverse Brexit we need a Parliament with the courage and intelligence to do it.

    Perhaps we can take our inspiration from the movie “Downfall”. The British people have the courage, imagination and determination to make a success of Brexit. With sufficient self-belief, we can make it work. If we fail, it means that the British people have failed to live up to the expectations of their leaders. In which case, the British people will fully deserve the disaster that is to befall them.

  4. You’re absolutely right, of course: we are going out on March 29 next year.

    What happens then?

    Two possibilities:

    The reality of May-style brexit is very soft — just like being in the EU, except we don’t get to help make up the rules (and nor do we contribute to the general budget.) I thought from the beginning of Mrs May’s reign that this must be what she was aiming for. Of course, this will mean that all her stated ‘red lines’ will be abandoned — and that means that she personally will have political problems with Gove, Boris, Liam Fox and David Davies. But she will have the whole of the rest of the politically-conscious country behind her in opposing them. I’m sure the middle-ground politicians are even now mentally blocking out the congratulations to her for having successfully managed ‘a divided country’ through just a difficult passage to find a safe harbour…….

    The other possibility, is that she really does, in reality and not merely in words, take us out of the Customs Union and the Single Market. Doing this would be incompatible with the agreement on Northern Ireland, so it would be a No Deal, and March 29th itself would be chaos, continuing into the indefinite future. This seems to me to be very nearly inconceivable as an outcome: very few of out political leadership cadres even _say_ that they are prepared to contemplate it, and I doubt that any of those who do say it are being fully honest.

  5. Nice piece.
    I strongly agree with your flying metaphor and that is also to say all is not lost. The energy currently devoted to ‘undo’ would be better used to campaign with some positivity about why we should rejoin the EU (or EEA depending what the final deal is like) – i.e. why we should eventually land the plane pretty much back where we started.
    Judging by what is going on across Europe, especially between the like of Italy and Germany, it seems a real tragedy the EU couldn’t engage more seriously with Cameron and his concessions at the time. Even Merkel needs a new EU policy for immigration now.

  6. You Down There voted to leave. We Up Here did not.
    We shall have a Referendum on Independence as a result of England’s bone headed stupidity.
    Ireland shall be reunited.
    Scotland will be a nation once again. God Knows what the future holds for Gibraltar.
    No mater what the UK is finished.
    I note that you mention none of the above in your article.
    Speaks volumes for the England/Britain mindset.

  7. As the Chinese Curse goes, we live in interesting times.

    I suspect that if we do indeed leave we could see the break up of the UK, and I suspect the potential for an economic catastrophe looms large.

    However a large enough call for and end to Brexit might I hope at least result in a less worse outcome.

    With the exception of the SNP, and Ken Clark who voted against the referendum bill, I suggest all in Parliament are complicit in this catastrophe

  8. Most people know that all politicians lie, but we learn to read between the lines. However, the Brexit vote was not won on propaganda from either side. Nearly everyone who voted had personal experience of living in the EU, for decades, some for over 40 years. We did not need to be told about life in the EU because we are living it every day.
    We just had to decide if we liked the life we were living, inside the EU, or if we would like to try something new? Most of us decided, on the whole, that we are not happy with our lives inside the EU, and voted to leave. The UK is a ‘Democracy’, not an ‘Accountancy’ so money does not come as our prime goal, happiness is just as important. And yes anyone can be happy with less money, but for most in the UK they can’t really get much poorer than they already are as EU citizens.

  9. I agree we should have a Parliament that is strong as Jon says, the problem is once you dispense with Representative members and turn them into delegates the only way is for the people to decide any reversal

  10. A late thought (PS). A few years back Liam Fox MP told me personally he would move to the USA if he lost his seat at the then upcoming General Election.

    This reflects a problem we have with some of the politicians who led the Leave campaign.Fox wanted to walk out on the UK; Lawson wants leave to remain in EU France; some MPs with links in financial management have been advising clients against leaving money in the UK; others seem only interested in their careers …. one could go on. Such a situation hardly bodes well for the future of our “sovereign Parliament”.

    On top of this there is the spectre of Putin hovering over our performance like one of Macbeth’s witches. I have little doubt he has had some influence in the ‘democratic decisions’ made here, in the USA, Turkey and elsewhere in Europe. He has won in his game of international Monopoly. With hotels (parliaments) designed to weaken the world order against Russia. Bravo Vladimir. Well played! A giant among political midgets.

  11. These are major issues you bring up which form part of a series of questions about the fundamental way in which a country is governed.
    -Is a referendum an appropriate tool for governance?
    -How do you ensure the accountability of parliament?
    -Do you want there to be personal consequences for MPs / PMs / Cabinet who lead the country into sub-optimal, or even ruinous, outcomes?
    -Do you want parliament to be a representation of the country as a whole (proportional representation with arbitrarily assigned MPs) or should parliament be a representation of individual constituencies (first past the post with a designated local MP for each arbitrarily defined constituency)?
    -People will always be influenced by manias, panics, and propaganda (foreign or domestic) so how do you best hold an election in those circumstances? Should we even hold an election at all?
    -Condorcet’s paradox which is over 200yrs old says we will never know what people voted for at an election because of cyclical preferences – does that mean elections are useless or the paradox is a useless theory?
    -Should it be possible to be a career MP with no experience outside parliament?
    -Should we have a government which is run by cabinet or run from the top (ie. from the PM and their SpAds?)?

    These are all major questions and not easily answered.
    In some ways it reminds me of past blog posts from Matthew where he will highlight / question the fundamental structure of trial by jury and the ability people have to spot a liar.

  12. As someone who was broadly in favour of a second referendum, that’s pretty much persuaded me it would be a bad idea. As everyone with an ounce of common sense knows that detaching ourselves from the EU in any meaningful sense would be an economic disaster, I suspect will be that is we will de jure cease to be a member of the EU in March 2019, but de facto be only slightly less closely tied to it than we are now. As Mr Rees-Mogg so succinctly put it, the UK will be a vassal state of the EU.

    The Brexiters are and always have been Tory Leninists. Just as Leninists of the left wing variety are pretty insouciant about mass poverty as long as they can say the that an abstraction they call the “Proletariat” is in power, the Brexiters care not if the economy crashes as long as they can admire this abstraction they call “sovereignty”.

    However, unlike the Leninists a droit, the likes of May and Hammond realise that the great British people are more interested in what is their wallets than in sovereignty and that the only way of avoiding a crash whilst fulfilling the referendum “mandate” is vassalage.

    If ever there was a case study as to why referendums are a silly idea, this is it.

  13. “MPs have, ever since, considered themselves to be mere delegates, bound to implement its result whatever their own views and whatever the changing circumstances.”

    You’re thinking of Anna, aren’t you!

  14. The referendum was to my mind ill-advisedly set up without any requirement for a qualifying majority, as is often the case where states seek to change their constitutional settlements. It seems to me that should part of the fallout from the present situation be a further plebiscite on Irish unification, then the precedent of the EU membership referendum, to say nothing of fairness would demand that a simple majority should be the requirement for Ireland to be re-united. That would presumably be another consequence that Cameron did not intend. Are our leaders not meant to be able to foresee such consequences?

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