When to hold a referendum

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There have been suggestions recently that Labour under Andy Burnham could put a commitment to rejoining the EU in its next election manifesto and that, if they were to be elected, that would constitute an adequate mandate for the government to act without any need for a referendum. The Brexiteers are unsurprisingly less than happy at such a prospect, but legally and constitutionally, those making the suggestion are entirely correct: there are no circumstances under which the unwritten constitution of the UK requires a referendum to be held. Indeed, by way of precedent, there was no referendum held when the UK joined the EEC back in 1973. The ‘confirmatory’ referendum held in 1975 following a change of government was always more about politics (and internal Labour politics at that) than the law or the constitution. Actually, it doesn’t even follow that a manifesto commitment is required either (although as it happens the then-Tory government had included the commitment in its 1970 manifesto). Had it not been for de Gaulle’s veto, the UK might have joined when it first applied in 1961, and there was no commitment at all to such a course of action in the 1959 Tory manifesto – indeed, the emphasis had been on the alternative, EFTA.

Ultimately, it’s a question of politics, not law. Would it be wise for any UK government to take the UK back into the EU without holding a referendum first, especially if such a government were to have been elected on a minority share of the vote under the UK’s antiquated electoral system? Unless it could be clearly and unambiguously demonstrated that public opinion was overwhelmingly supportive of membership, the answer surely has to be a firm ‘no’, not least because a parliamentary majority one way could be reversed at the following election, turning the UK into a sort of hokey-cokey member of the EU.

Much the same arguments also apply to the question of Welsh or Scottish independence. No referendum is required, either in domestic law or in international law: all that is required is that the countries have effective governments which are actually are in control and that independence is recognised by the international community. As with EU membership, that’s not to argue that there should not be a referendum. It is merely a recognition that, whilst holding a referendum which produces the ‘right’ outcome might help in gaining that recognition, it is in itself neither an essential nor a sufficient condition. And, if Burnham finally climbs down off the fence in relation to Proportional Representation, we will also face a similar question again.

Whether holding a referendum which reduces complex issues to a simple yes or no is ever the best way of taking a decision is an open question, although there are certainly circumstances where it might be the least worst option. But leaving the decision as to whether one should be held or not to politicians sometimes seems to be an even worse option than electing them to take the substantive decision themselves – their decisions generally seem to be based on the arbitrary question of whether they think they will win or not. The simplest objective rule to employ would be that a referendum is required when, and only when, it is proposed to change the constitution. But as long as we don’t have a clear one of those, that doesn’t help. I don’t doubt that an independent Wales or Scotland would rapidly write a formal constitution – I have no idea what, if anything, would ever push England in the same direction.