If successful, the consequences for the Remain movement’s attempts to filibuster the result of June 2016 are very dark indeed, warns Sean Walsh.
Barry Gardiner, speaking on the Today programme recently, was acute in his analysis of why there should not be a second referendum. His argument was this: that it would be an act of bad faith of such intensity that civil unrest might ensue. That argument is valid as far as it goes, which is not far enough.
The fact is there can’t be a second referendum. Let’s look at two reasons, one practical and one conceptual.
The practical reason is this: when would it happen? We are leaving in March next year so either a second plebiscite would have to take place before or after that. Clearly, it can’t be before. The logistics are obviously against that. But if it were to take place after we have left then what would the vote be on? If we have left with a withdrawal agreement then we have left with a withdrawal agreement. Why should a subsequent plebiscite be a verdict on that withdrawal agreement? And if we have left without one, if we have (to use the Remainer vernacular) crashed out then the country will have ground to a halt. Planes will be unable to take off; medical supplies will have run out (partly because planes will be grounded) and Daleks will be running rampant in North London (to the extent that Daleks can run of course). Clearly in these East-End-blitz circumstances a referendum would be a practical impossibility. I know all this is true. Ben Bradshaw just said so. And by the way planes will be unable to take off.
There is, of course, the possibility that the Article 50 process be stayed. But, as I understand it, the EU is a “system of rules”. Legal notice has been given. Whence would arrive that legislative conjuring trick? There are, of course, those of us who think that the EU is a “system of rules” in much the same way as the Sicilian Mafia is a “code of honour”; that it is observed more in the breach than the observance. But we are cynics. The idea that the EU project is a system of rules is nonsense of course. But if the increasingly preposterous M Barnier wishes to stick to that line we can always reply: why would anybody want to cleave closely to a system of rules so inflexible as to sacrifice prosperity at the altar of theological purity?
The conceptual reason is this. We have no constitutional accommodation with the notion of the referendum in the UK. Our arrangements are unwritten, it is true, but they embed traditions of common law and parliamentary authority. You make mischief with that at your peril. Or rather, at our peril. A referendum process requires a collective act of faith on the part of the governed in the good intentions of those that govern. A second referendum would be a form of assertion that the first referendum was in some way invalid. At that point the act of faith is shattered. The covenant is broken. Nobody – Leave or Remain- could have faith either in the process or consequences of a second plebiscite. There would be no conditions in place that would speak to its legitimate expression of a democratic consensus. How would that result be interpreted anyway? Would we need a third referendum? Are we suggesting government by infinite regress?
A second referendum would be a practical and political fix but a metaphysical impossibility. The conditions of allegiance to the result would not be in place.
There are of course those who, in receipt of the standing orders of Chuka Umuna et al, march straight in the direction of the comment box to assert that I am wrong. Nobody, they suggest, is advocating a second referendum. What is being suggested is a further referendum. On something quite different: the terms of departure. But the response to this Jesuitical sleight of hand is straightforward: if the consequence of the “further” referendum is to neutralise the initial one then clearly it is conceptually enmeshed with it. That’s the nature of causation.
I used the expressions “Barry Gardiner” and “acute” in the opening sentence of this piece. I doubt that will happen again. But he has put his finger on something here. People are getting angry. The Remain attempt to filibuster the result of June 2016 may yet succeed in its own terms. But the consequences are beginning to look very dark indeed.