Remainers demanding another referendum aren’t interested in legitimacy – just reversing the democratic decision of 2016

Remainers demanding another referendum aren’t interested in legitimacy – just reversing the democratic decision of 2016

Don’t ask a question if you don’t know the answer. Good advice to the novice politician. But a better piece of advice to those moderate MPs now toying in exasperation with the dynamite-sticks of a second referendum would be: Don’t ask the question if you don’t know the question.

Westminster is febrile at the moment with MPs engaged in distraction politics. The Prime Minister is right that there are three and only three “end-states” now possible for the UK: cancelling Brexit and revoking Article 50; ratifying the Withdrawal Agreement (with or without some tweak to the Political Declaration that might make it acceptable to some occupants of the Opposition benches); and leaving with no deal signed on 29th March, as already provided for in domestic and EU law.

Some MPs find it difficult to choose between those options. But those are not, by and large, the MPs arguing for a second referendum. The MPs vocally pushing us down that dangerous path are hard-core Remainers, determined to force a cancellation of Brexit and seeking a fig-leaf to cover their shame at rejecting the 2016 referendum, despite having, most of them, been elected to the Commons in 2017 on a manifesto of implementing it.

Why do they need a fig-leaf? Why not just move an amendment at the appropriate time “instructing” the Government to revoke Article 50, as it is now clearly our legal right to do? Because of course they wouldn’t win. So their campaign is aimed at pressuring more sensible MPs into opting for a calamitous referendum that they are confident can be rigged to produce a Remain vote.

The pressure on MPs will mount over Christmas and into the New Year, promoted by the well-funded Britain Stronger in Europe campaign, now re-branded The People’s Vote. At the weekend, it appeared even the Government was succumbing to it, although later Gavin Barwell and David Lidington denied they were discussing a second referendum with Labour MPs.

Mrs May, however, is staunchly holding out against a second referendum. That’s good. Anyone who recalls the bitterness of the referendum on independence for Scotland should be wary of unleashing even stronger forces in a campaign that would last months. “Red Tory scum” was one of the more printable slogans used by the advocates of independence – and that was about the Labour Party. The venom that would be directed at both major parties by disaffected Leavers would surpass that. And they would have no friends to counteract it, since Remainers already feel they owe mainstream Conservatives and Labour nothing. The surest defence against the chaos of a second referendum is in fact that most MPs, especially Labour MPs, who had close exposure to the bitterness of Scotland’s referendum, are rightly terrified of the damage one would do our democratic fabric.

But that danger to the nation apart, there are formidable obstacles to the holding of another referendum. With a minimum 22-week timetable needed, an extension to Article 50 would have to be agreed unanimously by the EU and provision made for the election of MEPs at the end of May – elections that could turn out to be a complete farce and result in a wipe-out of the two main parties.

In addition to the Second Referendum Act itself, there would also need to be legislation clarifying what counted as legitimate referendum expenses. The High Court has found that the Electoral Commission did not understand the law on expenses it was meant to apply, and, while this is under appeal, the position is obviously legally unsatisfactory.

And what of the Electoral Commission itself? A body made up largely of open Remain supporters, it has refused to respond to a dossier of complaints against the Remain campaign submitted by Priti Patel while repeatedly investigating Vote Leave. This has delegitimised them utterly in the eyes of many Leavers. Without a root and branch clearout, there would be a question over their capacity to supervise a referendum fairly.

But what question would be on the ballot paper? That is the nub of the problem with a second referendum.

Because in the case of a second referendum, the question probably determines the answer. And it will certainly determine the legitimacy accorded to the referendum by many, if not all, of the voters.

So what would the question be (especially after a fractious and volatile Parliament had riddled the Government’s Second Referendum Bill with unpredictable amendments)? To the fanatics of the People’s Vote campaign, it is pellucidly clear that it should be a binary choice between the Withdrawal Agreement negotiated by the Government and the revocation of our Article 50 notice, leading to our remaining as an EU Member State. They claim, with pious solicitude for the nation’s welfare, that it would be reckless to give an untutored electorate the dangerous option of leaving the EU with no deal.

But this of course would (deliberately as far as the People’s Vote people are concerned) disenfranchise the huge body of Leavers who think the Government’s deal stinks. How would I vote, given that choice? How would the West Midlands and Cornwall vote? How would the Tory backbenches vote and indeed half the Cabinet and Jeremy Corbyn? We would have noting acceptable to vote for. Whether or not this insult to the electorate would result in the mass boycott some Leavers are already contemplating, the legitimacy of the poll would be destroyed from day one.

So how about a binary choice between Leave the EU on the terms of the Withdrawal Agreement negotiated by the Government and Leave the EU with no deal? This at least has the logic of respecting the outcome of the 2016 referendum. We voted then to Leave the EU and now we could vote on the subsidiary question of the terms we will be leaving on. Great. But press reports have left us in little doubt that his would merely be a ploy by Cabinet Remainers, who would fully expect that Parliament, by prior arrangement with Labour Remainers, would amend the Bill so as to add Remain to the ballot or to eliminate No Deal in favour of Remain. The transparent dishonesty in such a stratagem would probably bring down the Government, since you can be sure that those Labour Leavers will not be there to support the Government when a No Confidence motion is debated.

So try another combination. It is after all a good question whether the Government’s Withdrawal Agreement should be on the ballot at all. It is a poor, sickly thing. Nobody likes it. The only campaigners for it would be the Prime Minister, those members of the Cabinet willing, however reluctantly, to speak up for it and the ever popular CBI and associated big business lobbies. But lobbyists do not a ground campaign make and, admirably devoted though Mrs May is to doorstep campaigning, it will be tough for her and her small band of Ministers (those who aren’t campaigning for another option) to get out the millions of leaflets that both Remain and Leave distributed last time. (I suppose there is a way round this: get the taxpayer to print and post the leaflets to every household in the country. I wonder how that would go down.)

On that basis, let’s drop the Withdrawal Agreement from the ballot and just go with Leave and Remain. But this looks a bit unimaginative. Didn’t we do this in 2016?

There have also been suggestions that a threshold should be set, say 60% of those voting or 40% of the total electorate, before any change to the status quo would be effective. It was, after all, an ex post facto Remainer complaint against the 2016 referendum that there was no such threshold. But what is the status quo? That we are still, just, a member of the EU, or that we have decided to quit? Cold towels all round.

Looking beyond a binary vote, there are many schemes for a double-vote, either on a single ballot paper, or in two polls a week or so apart. Some of these involve preferential voting. The double votes all inherently skew the poll in a particular direction. Take the combination whereby a first ballot is between Leave and Remain and a second (assuming Leave wins) on the question Leave with no deal or Leave on the Government’s terms. How can that handle somebody who would like to leave provided he or she knew whether we would be leaving with no deal or with the Withdrawal Agreement?

Preferential voting has its own problems. We know from the Mayoral elections in London, for example, that many voters do not cast a second choice vote. This may be the result of deliberation, but it could also because they value their second vote less. Imagine in a tight contest that Leave won on the second preferences of only half the people who gave a first preference. We would never hear the end of it. Once again, legitimacy would be the issue.

There is an entire nerdish literature on the making of complex choices such as this, replete with modern Games Theory and the more antique Condorcet Paradox. All of it points to the conclusion that preferential voting tends to produce very strange results. To cut through the abstruse theorising, a group of the Great and the Good has come up with an idea that there should be a Citizens’ Assembly, randomly chosen, to deliberate on what the question should be. I’ll just leave that thought there without further comment.

And then there are the campaigns. Under current law, there are very loose limits, rightly, on what can be said in an election or referendum to promote one side or another. Fact checking can be done by the media and commentators of course, but that was done in 2016. What controls will Remain, who have whinged on endlessly about “Leave lies” want to put on the utterances of campaigners and who is to police them? And the Russians? Will we have to close down social media for a few months to keep those bogeymen out?

The closer one looks, the clearer it is that a second referendum is not a means of healing and uniting the country. It is not even necessarily a means of reaching a decision. At least one Tory Remainer has implied that, if Leave with no deal was on the ballot paper and it won, she still wouldn’t vote for it. And yet she is one of the most active proponents of a second referendum.

The calls for a second referendum originate from a solidly pro-Remain group that wants to win by having a rigged question that excludes one of the three options facing the country (the one, as it happens, that Parliament has already legislated for). They are not interested in legitimacy. They only want to slow and stop the Brexit juggernaut at any cost. It is astonishing that people like Tony Blair, Sir John Major and Roland Rudd are willing to put the country through this because they cannot accept the decision made by the people in 2016. It would be an error of cardinal significance if the House of Commons were to follow them down that self-destructive path.