An “Advisory” Referendum is Just as Binding as a “Legal” One
May's offer of a second referendum is impossible because to call for it is to announce the death of those versions of trust that made the first referendum possible in the first place. You can't ask for ref2 without invalidating it in the mere act of insisting on it, warns Sean Walsh.
So, the Nanny in Chief has decided to throw everything on the capricious mercies of the Commons kindergarten in order to get her "deal" (which isn't a deal) across the "line" (which with magnetic precision recedes when she approaches it – she's a reverse "Iron Lady" in that limited sense). She will lose for the following reason: that her premiership has now experienced the fatal deterioration: from contempt to pity. And from pity to laughing- stock.
The acolytes will claim that she has not actually offered a second referendum. And the acolytes are strictly speaking correct. Of course, she hasn't. But she has, in that "speech" on Tuesday managed to do the impossible: bore a crowd of accountants while alienating the people who were well disposed to her. All five of them.
There was one single point of principle that some of us hoped she'd observe. That a "second referendum" would be wrong on metaphysical, political and moral grounds.
What now can anyone say to this woman who has traduced, subverted, and done the "we'll see" to a nation pregnant with real optimism in 2016- do we want to say to her that she was ever worthy of that office?
I'll just offer one analysis of that collective dishonesty: the idea that the original referendum was a merely advisory snapshot of the views of an idiot class whose views therefore are unworthy of any significant consideration. Because that's how the Heseltines see the rest of us.
There are those who want to advocate "Remain" on the grounds that the referendum in 2016 was "advisory". Those advocates claim the following: that our constitution (analogically speaking) allows a referendum to form no more than an Agony Aunt relationship between ourselves and the political class. 17.4m people wrote a letter asking for a divorce; the Remain equivalent of Denise Robertson replied that we need to stick it out within the abusive relationship. After all, he might change. Although we all know that he won't.
But the referendum was "advisory" only to the extent that a clause in a legal document is advisory. It happened in the first place as an expression of the will of parliament. It was then brought back within the relevant constitutional protocols by further acts of parliament. The referendum result of 2016 is firmly embedded within the law of the land, regardless of whether the original result in the early hours of June 24th was interpreted as "merely advisory".
It's no more advisory now than an act of parliament is. Which is to say: hopefully not at all.
Janet Daley made a similar point in her recent column in the Sunday Telegraph. Mischievously she thanks Gina Miller for the machinations that made this point of view possible. But Daley's stopped clock started ticking again when in the same column she implied that the anger we all feel is because it is an objection to the legal situation.
She is wrong.
The anger we feel is not because the "advisory referendum" is now part of a legal dispensation that the government refuses to honour (although that is true). The anger is because the political class refuses to accept the advice imposed by the advisory referendum. The original referendum provided an obligation that logically preceded its interpretation as a legal one. The original referendum, in other words, placed a burden of obligation on the political class that has sod all to do with the law and everything to do with morality.
There are forms of obligation that not only precede the requirements of the law but in effect make possible the law. To put it another way: not all obligation emerges from contract, and not all promises are contractual in nature. There are obligations which can only be understood in the language of the covenant or of the vow. The kind of relationship of submission I feel towards my child, religion, family or country is not emergent from a contract but are pre-contractarian. They are obligations I cannot justify simply because I lack the language of justification in those cases.
They are real, nevertheless.
The "advisory" referendum of 2016 was made possible as a legal event because it was supervenient on a more precious resource than mere law. It happened because what is a fundamentally anomalous in the context of our political process (the referendum) was carried forward on the shoulders of institutions that require our trust for their existence in the first place.
That trust has now gone. A second referendum is impossible because to call for it is to announce the death of those versions of trust that made the first referendum possible in the first place. You can't ask for ref2 without invalidating it in the mere act of insisting on it.
