Jo Swinson is right: a “second referendum” is not even a logical possibility
(Photo by Jack Taylor/Getty Images)
The Liberal Democrats have voted to make the cancellation of Brexit a manifesto commitment (people still have faith in these, apparently). The vote is happily in keeping with the views of its current leadership and is therefore “binding” and not “merely advisory”. In policy terms it is, obviously, no more than a sort of ambitious codification of Jo Swinson’s view: that the result of the 2016 referendum is disposable, and that she will similarly disregard the result of any second referendum, should the decision not go her way.
On the subject of a second referendum, Ms Swinson has, inadvertently, made a fair point. Nobody should accept the result of a “second referendum” because, as a matter of metaphysics, as much as of politics, such a plebiscite is impossible. There’s no room for a second referendum given that the first one remains unimplemented. You can’t reverse a clapped out Robin Reliant into a parking space already occupied by a pristine Mercedes Benz.
The vote in 2016 was an event in the past, but that event generated an obligation that is still alive in the present. Those two things have to be kept separate and to elide them is to make a significant conceptual error. Political capital degrades over time, but obligations do not. The longer an obligation remains undischarged the more pressingly relevant it becomes. “Democracy” might be a process, rather than a snapshot, but something has to sustain the process. And what sustains the process is the covenant of trust that Ms Swinson, with almost endearing insouciance, would casually vandalise.
To argue that the 2016 referendum is now superseded on the grounds of its age is to commit that conceptual mistake.
There is an obvious counterargument to this. I say that the referendum of 2016 generated an obligation but what can I possibly mean by that? A UK referendum, it might be argued, is a sort of constitutional anomaly and is merely advisory. If, therefore, any “obligation” was implied in 2016 then that obligation is one that can be overridden if Parliament decided to ignore it.
But Parliament didn’t decide to ignore it, or at least not until it had turned itself into the home alone kids who promised they’d stay up until midnight and then got scared as the clock ticked down. The 2016 referendum was surrounded by legislative acts some of which facilitated it, others of which enabled it, and others of which codified it. The legal legitimacy of its result, the obligation, nestles quite consistently within that legislative perspective.
And even though it nestles there, it retains a character of its own. There are forms of obligation which logically precede the legal and which, actually, make legal obligations possible. It’s wrong to defy the law not because it’s illegal to defy the law but because it’s wrong to defy the law. Moral obligations have their force not in service to the law but in supremacy over it.
Not all obligations share the same structure. Some responsibilities are generated by contract, others are not. The Remain Tyrants in the Commons have an almost Pavlovian habit of genuflection in the direction of Edmund Burke. Burke, they say, was right to argue that an MP owed to his constituents not merely his vote but his conscience. But Burke also argued that a vibrant social order will acknowledge obligations to the dead as well as to the currently alive and also to the yet to be born. There are subtleties, he argued, in the thread of responsible politics, which transcend the contingencies of the here and now. The Dominic Grieve types who reach into the past in order to grab a “precedent” which serves them well in the present are unravelling the thread. But they are also, interestingly, disclosing an interesting misconception about the philosophy of the conservatism they insist they represent.
Edmund Burke would not be impressed by those who suggest that an expression of genuine democratic energy is no longer valid a mere three years later . . . simply because some of those involved are no longer with us, but are watching on in consternation. Pace Mr Grieve I suspect he would agree that the obligation carries on regardless.
It’s possible that this crisis will degrade to the extent that we are invited to go through the motions of voting again. But nobody, in this situation, would believe that their vote would matter and therefore no vote would matter. A referendum can only ever be legitimate if it is brought into life in the context of a constitutional dispensation which is founded on trust. Political institutions are like money, in that as soon as people lose faith in them they cease to effectively exist.
A second referendum is not possible as an actually legitimate solution to this crisis. Not because of the usual stuff about “best of three” but because it couldn’t, in this current context, be legitimate.
I have made three life changing decisions in my life, each of which were formulated when I was in a state of spiritual discomfort. And anger. They did not work out well. Mr Johnson has compared himself to the Hulk. I’d adapt that: to insist that we be taken through all this again, to urge another “referendum”, will risk some severe social disorder. You might as well offer Bruce Banner a Mars Bar just as he’s starting to turn green. It won’t end well. And nobody could trust the result.
