The European Union Referendum Act 2015 (“the Referendum Act), which led to the EU referendum taking place in June 2016, has created a constitutional crisis in the UK. This is a crisis which cannot be resolved until it is first admitted. The symptoms of this crisis are evident in a Parliament so deeply divided and fractured that it can neither pass the Government’s painstakingly negotiated EU Withdrawal Agreement nor produce a majority for any alternative course of action whatsoever. Neither the Opposition nor the Brexiteer ERG have set forward any workable proposition as an alternative, perhaps because they realise that if they do it will immediately be demolished by powerful objections. The two figureheads of the Vote Leave Campaign, Michael Gove and Boris Johnson, both assured voters that it would be straight forward to reach a favourable agreement with the EU, whatever EU politicians were saying at the time to the contrary, because the UK buys more stuff from EU countries than it sells back to them. Others who campaigned for Leave say that they always believed that the negotiations would “go to the wire”, implying that the threat of leaving with No Deal would result in the EU coming to its senses and giving the UK the favourable terms that it wants. However, now that we enter this “going to the wire” phase, it turns out that the crisis lies solely in the UK, which finds itself completely unable to decide what it wants. The Mother of all Parliaments has reached a stalemate.
It has done this because it put in place a referendum without either stipulating that the Leave position had to be defined in a formal document, or spelling out what the consequences of a majority vote in favour of leaving the EU should be. Instead the act stipulated only that the Secretary of State must publish a report on the “outcome of negotiations between member States”, and another detailing information about “rights, and obligations, that arise under EU law” and “examples of countries that do not have membership of the EU but do have other arrangements within the EU”. The Referendum Act was advisory and not legally binding on Parliament, but Government ministers also gave a commitment to “implement” the result, so from the outset the status of the referendum was unclear. The inevitable confusion began almost the day after the result. When Theresa May became Prime Minister and was asked what she was going to do, she was reduced to using the now famous and much mocked phrase: ”Brexit means Brexit”. This highlighted the vacuum of content in the Referendum. It was abundantly clear that there was no plan. The Supreme Court had to get involved in deciding whether the Government could make up its own plan and act unilaterally to implement Brexit without reference to Parliament as it wished to. It was ruled that it could not.
Those of us who are wringing our hands daily with frustration at the current political gridlock need to interrogate more deeply how we got where we are, in order to work out what should happen next, and this is an attempt to do just that.
Let’s start by asking: “How could the Government of 2015 be so cavalier with the constitution in the Referendum Act”? In the environment we have now of such divided opinions it is all too easy to blame the other side for being too stupid to understand what is the bleeding obvious to us, and to ramp up the rhetoric with words like “betrayal” or “traitor” or phrases like “will of the people” or even worse “enemy of the people”. The problems we face are not a result of Leave winning the Referendum. Rather they are the result of the Referendum Act failing to consider either the nature of a campaign which could be fought without the obligation to define its subject, or the consequences of what this might set in motion, thereby allowing both a debate which was constructed so as barely to touch the real issues concerning leaving the EU (such as the Irish question or matters of trade and security) and a result which would take on some kind of sacred force, all the more powerful because no-one could pin down its meaning to anything in the real world.
In an essay published by the Economist (17 Jan 2019) Robert Saunders, history lecturer from Queen Mary University of London, set out a brief outline of the history of referenda in the UK, noting the great reluctance former UK Prime Ministers to deploy them. The first UK-wide referendum was held on 5 June 1975 on whether the UK should stay in the European Economic Community. Saunder’s cites Margaret Thatcher’s all too prophetic criticism of this which was delivered to Harold Wilson on the floor of the House, calling referenda “the device of dictators and demagogues”, which she implied “would be dangerous to minorities and destructive of Parliamentary authority”. In this she was referring to Clement Attlee’s letter to Churchill published in The Times (22 May 1945) rejecting a referendum that Churchill was seeking to hold to delay a general election until after the war against Japan had been completed.
Saunders goes on to discuss Albert V. Dicey, “the most distinguished constitutionalist of the late 19th and early 20th centuries”, who was an advocate of referenda for the “allowing great questions of policy” to be settled “free from party or personal loyalties”.
However, Saunders cites three historic reservations about referenda derived from Dicey, each of which bite deep with the 2016 referendum.
i) a referendum reduces a question of great complexity down to a simple “yes” or “no”, removing any nuance from the result.
ii) the use of referenda encourages irresponsible government by allowing them to be introduced to solve internal party divisions and by allowing governments to act in line with the result but in a way that they believe themselves to be against the national interest, whilst washing their hands of the consequences. Note on this point Theresa May’s emphasis when advocating the Withdrawal Agreement is not that it is a great deal for the UK, but rather that it merely honours the referendum result.
iii) they encourage despotism, as those who oppose the result are no longer opposing just a government, they are opposing “the will of the people” which cannot be denied.
This last point is worth expanding upon. The scope for democracy to be bypassed by a referendum is exactly in proportion to the gap which is opened up for the executive to fill in between the simple “yes” or “no” of the referendum and the actual legislative outcome of it. In other words, the more vague and minimal the definition of what is voted on, the more the scope for democracy to be bypassed as a result. We could call this scope the Despotic Opportunity which results from any given referendum.
UCL’s recently published Report of the Independent Commission on Referendums (“ICF”, July 2018), which provides one of the most comprehensive cross-party critiques of the use of referenda in the UK, elegantly reinforces this point in a section entitled: “A lack of clarity: the problems with pre-legislative referendums” (p. 82). It notes that “As pre-legislative referendums are often held on general principles rather than specific legislation, there is a risk that the proposals will be unclear. . . If the need for clarity is not satisfied, this creates room for the legitimacy of the referendum result to be questioned”. The report then quotes a speech by David Davis MP from the House of Commons in 2002, “. . . pre-legislative referendums of the type the Deputy Prime Minister is proposing are the worst type of all . . . We should not ask people to vote on a blank sheet of paper and tell them to trust us to fill in the details afterwards. For referendums to be fair and compatible with our parliamentary process, we need the electors to be as well informed as possible and to know exactly what they are voting for. Referendums need to be treated as an addition to the parliamentary process, not as a substitute for it.” (p.83).
The ICF concludes this section as follows: “It is of utmost importance for the proposals put to a referendum to be clear and for voters to know what will happen in the event of a vote for change. Hence, the Commission considers standalone pre-legislative referendums to be highly problematic.” (p.85)
So with these thoughts in mind, let us turn to the specifics of the 2016 referendum itself. Was this a referendum which effectively allowed a “great policy issue of the day” to be settled “free from public of party interest?” Did the simplification of the issues to a simple Yes or No produce a meaningful result? Has it encouraged irresponsible Government? And how much of a Despotic Opportunity did it leave room for?
In order to answer these questions it seems appropriate to examine the arguments and tactics used by the winning side. Most of the campaign material has been deleted from websites and is no longer on public view. However, Dominic Cummings, the mastermind of the Vote Leave campaign has helpfully given an account of the main points on which the campaign was fought in a speech given to Nudgestock, an annual Behavioural Science Festival staged by Ogilvy Change, which took place in Folkstone in June 2017. This is freely available to view on You Tube. The benefit of using this speech as the source material for summarising the Vote Leave arguments is that we have here both a concise characterisation of the content and the reasons why these particular arguments were used in preference over any others, given by the chief architect of their usage.
Dominic Cummings, well known as a political advisor in Conservative Party circles, working for Michael Gove from 2007-14, ran the Business for Sterling campaign from 1999-2002. He starts by saying that when approached by Vote Leave to run their campaign he did some personal market research. He found that the public knew nothing more about the EU than they did 15 years earlier when he ran the campaign against Britain joining the Euro. But three big things had changed. The First was the Great Financial Crisis (“GFC”), about which politicians generally were still underestimating the level of anger and frustration. The second was the immigration crisis arising from wars in Syria and North Africa, which had led people to fear that the EU was providing too much of an open door to the UK. The third was the long-predicted Eurozone crisis, which had damaged confidence in the EU. He also found that one third of the population were completely hostile to being in the EU and wanted out come what may, one third were completely committed to remaining, and around one fifth were inclined to leave by thought it would be too risky. So he constructed a campaign which had two simple objectives. Firstly, to persuade this one fifth that leaving would not be too risky, and secondly, to make those committed to remaining more likely to sit on the fence by persuading them that it would be risky to stay.
The resulting campaign had content based around four components.
- The theme of “take back control” which emphasised that something had been lost. Importantly this played to a double meaning in that for many it was about taking back control over “the system itself”, just as much as it referred to any complex European issues which few understood. In this way it resonated with the residual sense of anger from the GFC, and didn’t require getting into specific details relating to the EU in order to do its work.
- Saving £350m per week, which is roughly the gross annual UK contribution to the EU, not taking into account the rebate, divided by 52. They “spun” this in two ways (Dominic Cummings’ own term). Sometimes they said that they could save £350m which they promised would be given directly to the NHS, even going to the lengths of printing this message on what looked like NHS branded information sheets. Other times they simply said that they would no longer have to “send” the £350m to Europe. This second form, Dominic Cummings noted, was just used in order to provoke the Remain campaign into objecting that this money was not in fact ever sent to the EU, which they eventually did, meaning that they wasted valuable campaign resources getting bogged down in the detail of refuting this number. The £350m per week was never supposed to be a defendable number, it was only there to neutralise the tidal wave of negative economic analysis which was being thrown against Vote Leave, and to do so by being easy to explain and to remember.
- In order to create a sense that it would be riskier to stay in the EU than to leave it, in a way that would be persuasive to the 1/5 of the population who were inclined to leave but were worried by the risks of doing so, Vote Leave introduced the argument that Turkey was about to join the EU, and that this would cause a flood of Turkish (and by implication mostly Muslim) immigration into the UK. Dominic Cummings noted that Remain didn’t anticipate this argument coming up, and hence had little idea how to deal with it.
- Connecting Vote Leave with the tide of anti-establishment sentiment. A City AM article by Annabelle Williams from just after the referendum (28th June 2016) illustrates how successful Dominic Cummings had been at deployed Boris Johnson in particular to make this connection. “Anti-establishment sentiment is growing,” she writes, “with political leaders seen as ‘alternative’ drawing support across the Western world . . . The surprise triumph of the Brexit movement falls into this camp too. And a number of commentators have suggested inequality is the root cause of the trend.” She quotes Michael Hartnett of Bank of America Merrill Lynch: “Brexit is thus the biggest electoral riposte yet to our age of inequality . . . It’s because the economic recovery of the last eight years since the financial crisis has been unbalanced.”
What is notable about these four arguments is that, astonishingly, none of them were really about leaving the EU. Dominic Cummings is quite open about this. He says that in all of his time in politics he has not met a single MP who actually understands the European Single Market, and that he actively chose to avoid any talk about this in the campaign: “It is a very complicated abstruse subject” he says, which has “no purchase on public psychology”, and therefore no campaigner wanting simply to win would spend any time discussing it unless they had to, and of course, they did not have to, because the Referendum Act imposed no obligation to do so.
Looking back at these arguments from the cold light of 2019, it is clear that there will be no gratifying additional sense of control emerging after Brexit, and that any additional control we eventually gain will be more than offset by loss of prestige and reputation; that leaving the EU is likely to leave the UK around £800m per week worse off rather than £350m better off (we can argue over the actual number, but it is without doubt a very large negative not a positive one); that Turkey isn’t going to join the EU any time in foreseeable future and that the immigration crisis is now largely contained; and that leaving the EU contributes nothing whatsoever towards reducing inequality.
These four arguments, which were never designed as anything more than to give a sugar rush to the Vote Leave campaign rather than to provide any lasting nutrition to the UK public, were not enough to win the referendum on their own. The real work of winning was done by the group of physicists and data scientists that Dominic Cummings mentions in his talk as being the engine of the campaign. The referendum was won by deploying these flimsy but flavoursome arguments in exactly the right way to exactly the right demographic at exactly the right time. For most of the campaign this group ran experiments and collected vast amounts of data. Dominic Cummings is sketchy to say the least about what data was collected and where it came from. It is highly likely that the data collection techniques used to provide the analysis on which the campaign strategy was based would not be legal now under GDPR (ironically a set of EU regulations which came into force in May 2018 and which give UK citizens far greater data protection than they had previously). What is for sure is that the primary medium for the distribution of the highly targeted advertising campaign deployed by Vote Leave in the seven days prior to the referendum was Facebook, and that 1 – 1.5 billion such adverts were delivered over that period, and even this was skewed to the final four days. The persuasion didn’t need to last. The arguments didn’t have to stand up to scrutiny, they just had to turn marginal voters for a few days. This was the first fully fledged UK-wide data-science dominated plebiscite, and it found the both the “old guard” of the establishment and the rules themselves wanting.
Can it be said following this account of how Vote Leave won the referendum based on a speech by its own director that the referendum allowed a “great question of policy” to be settled as Dicey advocated, “free from party or personal loyalties”, when none of the arguments used to win were based on anything much to do with the substantive issues arising from leaving the EU, which Dominic Cummings clearly saw as far too complex and abstruse for most people to be bothered about? Instead, the referendum was a masterclass in the arts of public persuasion. It was more like the story of the Pied Piper than the Judgement of Solomon.
How could such a “great question of policy” be reduced to little more than a social media mash up? If Parliament is not to play fast and loose with the Constitution, then surely the most basic requirement for a referendum concerning a major constitutional change is, as David Davis demanded in 2002, that the change being proposed is written down in the greatest possible detail. Whether we call this a Manifesto, or a White Paper, or a Prospectus is all the same, but having an obligation to produce one should have been stipulated by the Referendum Act, and Government resources should have been made available to produce it. It should then also have been stipulated that any campaigns advocating Leave could only campaign on the basis of what was in the Manifesto and on no other basis. In the referendum on Scottish Independence just a couple of years earlier the Scottish Government produced an extensive White Paper on what Independence would mean. As a result the debate which took place on the topic was thorough and substantive. Had the result gone the other way no constitutional crisis would have followed. Had it turned out that the White Paper was completely wrong about every matter it touched upon, then when the final deal with UK Government on independence was reached, the Scottish Government could have been held to account and on these grounds another referendum could legitimately have been demanded (it would have been wiser to make formal allowance for this in advance in that case too). Had the White Paper turned out to be broadly correct in its analysis of the kind of deal that could be reached, then Independence could have followed without controversy.
With the EU Referendum, because Leave didn’t have to define what it was the campaign was in fact advocating, it turns out that it is impossible to say what the vote was in favour of. The mere fact that it was in favour of Leaving is so broad as to be meaningless. We might just as well have had a referendum about whether everyone in the country should be made a millionaire. In fact, one could deploy all four of the arguments used by Vote Leave to support such a Millionaire Referendum too. The £350m a week figure could become a much larger number and be justified on the grounds that if everyone was a millionaire then at least this amount would be raised in additional taxes which could be given to the NHS. By having money, people could take back control over their lives from banks who lend to them and politicians who impose austerity on them. Immigration would have to be cut and new security measures introduced because we wouldn’t be able to afford to give everyone arriving in the UK £1m. Making everyone millionaires would level the playing field at last, with alternative, in touch politicians at last taking the place of the old guard who have promoted a world of inequality for so long.
And if this Millionaire Referendum was won, as it probably would be if Dominic Cummings was in charge, despite the great protestations of many saying that there was no plan to achieve this objective, that simply printing that much money and distributing it as “helicopter money” would cause an economic disaster due to hyper-inflation, then some poor wretched replacement Prime Minister (the one who proposed this referendum would certainly have walked) would have to deliver the impossible (“Millionaire means Millionaire”), or else face up to the fact that Parliament had made a mistake in allowing a referendum to take place on something for which there was no plan.
By not stipulating that the EU Referendum be based strictly on a White Paper detailing all the steps which would be expected to take place in leaving the EU and the outcomes that would be sought, Parliament allowed the referendum to be argued on the basis of a thousand different types of Brexit. Leave proponents (who put forward many arguments beyond those of Vote Leave) could on the same day describe one type of Brexit to one group, and a completely different type to another, using data science where they had it to calculate exactly which message would be best targeted at whom. All they wanted to do was win the ballot after all, not reach any kind of agreement about what was meant by it. To say this omission was carelessness on the part of Parliament is an understatement. What it has meant in practice is that the reduction of an extra-ordinarily complex issue to a simple Leave or Remain produced a meaningless result. It has led to the Government repeatedly trying to pass as Withdrawal Agreement in the House that has been defeated by a record number, or in other words acting, not out of conviction as to what is good for the UK but rather slavishly trying to “respect the Referendum”. It has created a huge Despotic Opportunity which is most strongly apparent in the prospect of the UK leaving the EU without any negotiated settlement, something that is opposed by a very clear majority both inside and outside of Parliament.
Whilst all sides bear responsibility, the fault for this clearly lies with David Cameron’s majority Government of 2015. David Cameron promised the Referendum because the Conservative Party was haemorrhaging votes to UKIP. He probably put it in the Manifesto so that he had something to give away in negotiating the second term of coalition government, as another hung Parliament was anticipated. When he won a majority he was bound to hold the referendum. But his electoral success must have gone to his head, because at that point he stopped thinking.
It is easily forgotten in the current polarised discussion about the EU Referendum, that democracy is not only, or even primarily, about voting. It is instead defined by the rule of law and due process, accessible and applicable to all; it is about having strong institutions independent of government and the protection of citizen’s rights; it is about the freedoms which give rise to rigorous and honest debate; it is about having transparent and well regulated markets. What we know for sure now is that holding a referendum about a topic which is only defined only by a simple Yes or No, Leave or Remain, is to risk setting lose a monster ready to devour the constitution and make a mockery of Parliament. It is an act of political madness. The monster cannot later be held to account for its actions other than with the greatest difficulty and courage.
In addition to stipulating the requirement for a Manifesto or White Paper, however, the Referendum Act should also have set out the process as to what would happen in the event of a Leave victory. Surely the process of the country voting for constitutional change which takes many years to achieve should involve more than a snapshot of opinion at the outset. It should contemplate what happens if the plan set out in the Manifesto differs from the reality achieved in practice, as it almost certainly will do. In this situation, it is a distortion of the idea of democracy to assume that because some years before the population voted in favour of an overly optimistic plan that the country should then plough on regardless of how bad the outcome is in reality.
This then raises the question as to who should determine whether the original plan has been met? Because it is likely to be impossible to answer this question in a way that would be regarded by everyone as equitable, the safest way to conduct referenda on constitutional change must therefore be that from the outset it is agreed that there will be two votes, one based on a detailed plan and the second based on the actual deal once it has been arrived at. However well documented, the first referendum would be speculative in nature, because it would be predicting what deal could be struck. The second would have the character of a veto, which is a much simpler and less dangerous form of referendum, and would provide assurance that following the first vote the “will of the people” could not be used as justification for terrible policy decisions.
One argument against this is that it makes the first vote much easier to win, which could be seen as a danger, and raises the prospect of a country habitually trying to uproot its constitutional arrangements. However, it also makes it pointless to win the first vote on a pipe dream, as if the reality falls short, then the second vote will surely be lost. The obligation on governments not to hold such votes for casual reasons would therefore be just as strong as it is already.
A second argument, which has been used many times over the last two years, is that the negotiations over the constitutional change would be weakened by the “other side” knowing that if they refuse to negotiate in good faith then the likelihood would be that the second vote would be lost. In the case of the EU negotiations people said that if the EU knew that the UK would hold another vote on the whatever deal they offered, then they would have a huge incentive to act in bad faith and offer only worst deal possible in the expectation that this would swing the confirmatory vote. The counter to this argument is that if the EU acted in bad faith then it could easily be self-defeating at the second vote, because the level of public frustration would rise and drive votes towards leaving anyway. In negotiations of this type, the reality is that both sides are likely to have a lot to gain from an amicable deal being arrived at. The loss of “leverage” caused by having to win a second referendum on the agreed position would be likely to prove a minor factor in practice (as it has proven in the negotiations with the EU), more than offset by the gains which would be made in the maintenance of public confidence and engagement by following this approach.
Should the UK now hold another Referendum on leaving the EU? To do so, Parliament, and in particular the Conservative Party, has to come clean and admit the mistakes it made in the Referendum Act. No-one likes to admit mistakes, and this perhaps explains Theresa May’s resolute refusal to acknowledge any point of view which doesn’t hold the Referendum result as sacred, despite its deep flaws. Because the Referendum Act didn’t set out due process for content or consequences, it has led to a situation in which the confidence we had in our democracy has been undermined. We can now see clearly that a referendum as undefined as the EU one truly opens the doors to the “will of the people” style of tyranny which trumps the authority of Parliament. Liam Fox, one of the leading Brexiteer Cabinet members, has argued that Parliament outsourced its authority by holding the referendum of 2016, and cannot now take it back. As a matter of fact this is untrue, in that the Referendum Act whilst it said far too little about the prescribed level of content, said nothing at all about the consequences. Parliament didn’t outsource its authority to the Referendum, although it appears that certain Government Ministers outsourced theirs.
Therefore Parliament should embrace its authority. But to put the genie of the current constitutional crisis back in its bottle, Parliament has a difficult road to walk. It should find a way to apologise to the British public for the shortcomings of the Referendum Act, for the nature of the campaign it unleashed, and the myriad of undeliverable expectations it gave rise to. At the same time, it should establish clearly what has been learnt about how such referenda will in future be conducted, including considering whether it should be unlawful to employ any targeted political advertising on social media at all (for normal elections too). These lessons should then be incorporated into the Political Parties, Elections and Referendums Act 2000(PPERA) accordingly.
The Government, with the support of Parliament, should then put in place a referendum on the Withdrawal Agreement and Political Declaration. If this deal has been ratified by Parliament, then it would be a simple veto-style referendum. If not, it would need to be constructed so as to allow for a view to be expressed on the option of No Deal, or any other alternatives which have achieved substantial backing in Parliament and have been proven to find acceptance with the EU. This is not difficult to do and methods have already been set out elsewhere. Either way, it would be for the most part a post-legislative referendum on defined content and it would be beyond dispute what the consequences of voting either way would be, and because of that it would clear the air and in time allow the divisions in the country to heal themselves whatever the outcome might be. It would, in short, allow for a conclusion to be reached at last that everyone can respect.
Dr Paul Jourdan is CEO of Amati Global Investors and a director of two registered charities, Sistema Scotland and Clean Trade. The views expressed in the article are purely personal.