Should there be a second In-Out referendum?

Mike Taylor asks, via the world’s premier in-depth discussion medium Twitter,

“Genuinely interested to hear from Leavers: what is the argument AGAINST a referendum on whether to proceed when we know the exit terms?”

It is welcome that Remainers are generally interested in the views of Leavers; there has been far too little engagement and discussion, and too much talking past each other. For my part, I am genuinely interested in what Remainers say to the claim that supranationalism is inherently undemocratic.

To Mike’s question: having a second In-Out referendum is effectively rejecting the result of the first one.

As someone who is a citizen of Australia, the UK and Ireland, most of the countries of which I am a citizen have mandatory, binding, referendums on constitutional questions like Brexit, in which the terms of the measure being voted on are known: effectively, the public is being asked to ratify a statute already enacted but not yet in force.

The UK however, never quick to learn from the example of other countries, put the question whether to Leave or Remain in the EU to a referendum in 2016, but employed a non-binding referendum in which the terms were not known: if you wanted the status quo, that wasn’t really on the ballot, or the outcome of Cameron’s renegotiation, you had to vote Remain, and if you wanted to leave but stay in the European Economic Area, or leave and have a free trade deal with the EU, or leave and attempt to join EFTA, or leave and trade on WTO terms, or leave and have across-the-board tarriff cuts, you would choose the Leave option.

Various UK parties had promised In-In referendums, as contemplated now in the European Union Act 2011; the 2016 UK EU membership referendum was nevertheless an In-Out referendum, albeit without clarity as to which particular version of In or Out would occur. Alex Salmond demonstrated in the 2014 Scottish independence referendum that one could get 45% of the vote in an In-Out referendum without being too explicit even as to the currency one would be using in three years’ time, and had he won, no-one would be saying the result was illegitimate on grounds of the uncertainty about what leaving the UK would mean.

In both cases, the options on the ballot paper, but not the wording of the ballot paper were chosen by David Cameron, who favoured the In/Remain option in both cases. It was open to him to put a specific Scottish independence or Brexit model on the ballot paper. When John Howard was faced with the republic issue in Australia in the 1990s, he faced a republican movement divided on what republican model to adopt, and could have wedged his opponents by putting the “direct election” or “indirect appointment” republican model on the ballot paper (constitutionally mandated referendums in Australia require that the status quo be one of the two options, and that the other option be spelt out in legislation). Instead, he convened a constitutional convention, half elected, half appointed, to deliberate on what republican model, if any, should go on the ballot paper. No-one could reasonably claim that the minority republican cause didn’t get a fair go.

The Remainers chose to put the renegotiated settlement on the ballot paper as the Remain option, against all the possible Leave models. They could have convened a constitutional convention, John Howard-style, and sat down with the Leavers to deliberate on the appropriate Leave model to put on the ballot paper, but they chose not to do that. Some of the Leave models such as Norway or Switzerland were non-starters for various legal, realpolitik, game theory or economic reasons; other Leave models such as the supposed “Turkey model” of remaining in the EU Customs Union(!) only gained currency due to promotion by Remainers and the Irish press after the referendum. Choosing Leave’s model for them, and making it synonymous with the Leave option on the ballot paper, was something Remain chose not to do.

The country voted by a small majority to leave the EU on the understanding that there was some uncertainty about what voting Remain or Leave would mean: for Remain, there was the unknown of how Cameron’s renegotiation would play out in practice, and for Leave the unknown of what the WTO/FTA models might ultimately entail. A little thought would reveal that remaining members of the EEA (the “Single Market”), EU Customs Union, or rejoining EFTA would de facto require the active consent of around thirty other countries’ governments, some of whom would be ill-disposed to the UK, e.g., over Gibraltar, Northern Ireland or Akrotiri. Remain failed to exert, or knowingly chose not to exert, the message discipline to rule out the Leave options that required this kind of consent. It was an open goal and they never lined up the shot.

If staying in the EEA was ever really an option, it was demolished by too many Remainers’ inability after their defeat to shut up and stop smearing 52% of the voters as racist. The polling done by Lord Ashcroft suggests that 40% of Leavers cited immigration as a reason for their vote. Leaving aside the obvious points that most opposition to uncontrolled immigration is not motivated by racism, that people lie about this kind of thing to opinion pollsters, and that some people who said “democracy/sovereignty” rather than immigration was their reason for voting Leave tacitly meant “so we can democratically limit immigration by people we don’t much like the look of”, this meant that a vast body of voters wanted the UK to take back control of the borders, which meant no EU Court of Justice jurisdiction over migration, which is logically incompatible with the free movement of workers or of people which are supposedly integral to the EEA’s Single Market. By refusing utterly to compromise on this point, the EU hung Remainers out to dry. If they hadn’t, every politically unpalatable sacrifice made for EU integration would have been put at risk and the whole thing would have unravelled. The EU’s attitude was completely predictable and predicted, and thus Remainers went on to score an own goal: EEA membership was incompatible with respecting the supposed opinions of Leavers on immigration.

So, the only real Leave models were WTO and a free trade agreement. It’s no good saying that because the losing Remain side failed to make this clear that they should get a second In-Out referendum between a particular FTA and full membership of the EU. They could have made it clear on the ballot paper itself, or forced the Leavers to debate the relative virtues of their Leave models during the campaign.

A second In-Out referendum will be not be able to be held on the substantive issue, but will turn on the procedural issue of why the previous result should be overthrown, on the aspects of Project Fear that turned out to be spin and lies, hardly helped by Niall Ferguson’s admissions, and on Remain’s failure to answer why certain policies claimed to have redistributive effects (e.g., monetary policy in the 1990s and immigration in the 2010s) should be outside the scope of democratic control.

The public will wonder what if anything can be done to prevent a third referendum and rightly ask what it would take to change Remainers’ minds. During the campaign, including the formal debates, I was always prepared to say what would make me change my mind: the existence of a European people, consenting to be governed in common by majority rule. I never found any Remainer prepared to say what would change theirs.