Endgame. The death of the referendum mandate draws near

October 1st, 2019

Leavers have an apparently compelling pair of arguments. Certainly, those arguments completely satisfy them. First, they argue that everyone agreed that the referendum result would be implemented. Secondly, they argue that the wording on the ballot paper was clear, and that all that is required is for Britain to leave the EU. So, what’s the hold-up?

It would be churlish to take issue with these arguments. So let me be that churl. For those two arguments are mutually contradictory. The first depends on an assumption that one has to look beyond the legal form. The second depends on an assumption that only the legal form matters. Now Brexiters from the Prime Minister down have been keen to have their cake and eat it, but this is a bit much. Some consistency is required.

There are two options. Either you take the view that only the legal form matters, in which case you have to accept that the referendum was advisory only. Or you take the view that you have to look in each case what was substantively being determined. You can’t pick and mix.

As a matter of practicality, it seems pretty clear to me that you have to look at the substance. So you can’t really argue that the referendum result was advisory only: everyone was expecting that whatever was decided was to be implemented.

So what was decided? The wording of the ballot paper is clearly very important to determining this. It is, however, fanciful to divorce that entirely from the campaign that led to it. Vote Leave set out a detailed prospectus of what the public could expect from Brexit, a prospectus that formed the basis of speech after speech. It denounced suggestions that Britain might not reach a deal and might experience disruption as Project Fear. Its position was summed up, as described in the tweet above, as “we hold all the cards”. Britain would be able to prepare, it would not rush and its access to the free trade area would obviously be unimpaired. 

These were not off-the-cuff remarks. Vote Leave’s papers took the same approach. It stated: “There is a free trade zone stretching all the way from Iceland to the Russian border.  We will still be part of it after we vote Leave.”  In the same document, it stated: “Taking back control is a careful change, not a sudden step – we will negotiate the terms of a new deal before we start any legal process to leave.” It gave a timetable: “It will be possible to negotiate a new settlement with the EU by the next general election in May 2020. Indeed, Vote Leave went as far as saying: “The best way to get a better deal for Britain and Europe is to vote to leave. This will force the politicians to renegotiate a new friendly deal.

By any measure, things have not turned out as Michael Gove or Vote Leave foretold. As October starts, no deal is in sight and the government is adamant that Britain should leave the EU by 31 October, deal or no deal, do or die. Note, we have not reached the target date of May 2020 mentioned in Vote Leave’s own literature. It is very hard to reconcile the assertion that taking back control would be a careful change, that the best way of getting a better deal was to vote to leave or that Britain would still be part of the free trade zone with no deal Brexit. This version of Leave does not remotely match the prospectus.

(You will note that Michael Gove has been in government since June 2017 and has at no point murmured any dissent from the path that the government has set on Brexit. So he can’t have been too unhappy with the approach the government took implementing the Leave project he presided over. Indeed, not even the most zealous Leavers started agitating about the course of negotiations until the summer of 2018. So the cry you occasionally hear now that it was about the execution of the negotiations is hard to give much credence.)

When a company floats on the Stock Exchange, the directors of the company to be floated are rightly subject to stringent requirements. They must issue a prospectus. The prospectus must contain the information necessary for investors to make an informed assessment of the assets and liabilities, financial position, profits and losses and prospects of the company, as well as the rights attaching to the securities being offered. This information must be presented in a way that is comprehensible and easy to analyse. If they fail to give an accurate picture, they can be subject to swingeing penalties.

If the same approach were taken to politicians, the Vote Leave crew would be bricking themselves. Optimistic claim after optimistic claim has turned out to be unsubstantiated. If the same failure in the verification process had taken place in a float, the directors would have been facing huge financial liability and potentially even a spell in chokey. I’m not at all clear why politicians are given greater leeway. The harm they can potentially do is even greater.

That’s all well and good but what is the remedy so far as we, the investors in the country’s future, are concerned? In law, when damage has been done by an untrue statement, the court does not attempt to compensate on the basis that the untrue statement was true. Rather, the aim of the court is to put the victim back in the position that he or she would have been in had they been given the correct information.

What would the nation’s decision have been in June 2016 if it had been given an honest prospectus by Vote Leave? You will find few takers for the idea that the country would have voted for a no-deal Brexit in June 2016. So the idea that the referendum substantially decided that the country was accepting the prospect of a no-deal Brexit can be dismissed.

What this means is that if a deal cannot be reached, the referendum’s mandate expires. That does not by itself give a mandate to revoke the Article 50 notice but it does mean that before Britain leaves on a no-deal basis, a fresh mandate is required from the public. There are two ways this can be achieved: through a general election or through a referendum. Take your pick, Leavers, because one of these is required as a matter of democracy.

Alastair Meeks