A.C. Grayling is an important figure in British intellectual life. He is a highly rated philosopher and has become a media figure who comments on all kinds of issues, mostly through progressive outlets. When the late Christopher Hitchens died it was seriously suggested that Professor Grayling should now be accounted the new fourth horseman of militant atheism in the English speaking world, alongside Richard Dawkins and the rest.
Among the debates into which he has entered has been that about Brexit. Like Richard Dawkins, Grayling is a strong advocate of Britain’s membership of the European Union. He has addressed this issue on several occasions recently on his own web site. His thinking on the subject can usefully be broken down into two halves, which are linked together by his underlying conviction that despite the result of the referendum that Britain should nevertheless remain a member of the E.U.
Grayling essentially claims that in the referendum campaign the Leave campaigners behaved dishonestly, that those who voted for Leave were only just over a third of the electorate, and that anyway the majority for Leave was too small to justify so radical and damaging a change in Britain’s constitutional arrangements. These views are clearly controversial, but he is certainly not alone in holding them, and any discussion of them would have to be very extended. They might be worth tackling in some future contribution about the whole Brexit debate.
At this juncture I want to focus attention on what seems to be Professor Grayling’s distinctive and “specific” contribution to the debate, if only because if shows just how far some Remain intellectuals are prepared to go to justify their last-ditch opposition to Brexit . The gist of Professor Grayling’s reasoning is that the referendum held in June 2015 was really only a glorified opinion poll; that did not provide the government with any mandate to trigger Brexit by invoking article fifty of the Lisbon Treaty. On the face of it there are many obvious objections to this view. For example if the referendum was really only advisory why did David Cameron resign when he lost it? And why did he hire
Jim Messina ( President Obama’s big data expert ) if it was really open to him to ignore the result if the wrong side won? Above all if the referendum was really just a consultation which provided no mandate why did rich men on both sides spend huge sums trying to influence the result? Would they really have wasted their money on a consultative exercise of the kind envisaged by Professor Grayling?
These considerations though do not seem to have occurred to Professor Grayling who has developed his own rather different chain of reasoning. Perhaps we had better explore it. Professor Grayling has summarised his case in this way: “Recall,” he says, “that the referendum was specifically intended to be advisory and consultative only. Briefing paper 07212 issued to members of both Houses of Parliament on June 3rd 2015 in advance of the debate on the Referendum Bill says in section 5 that the referendum is non-binding, advisory, consultative; and section 6 points out that if there were to be any suggestion otherwise, there would need to be a supermajority requirement. In the House of Commons in the debate on the E.U. referendum Bill the Minister for Europe, Mr. David Lidington, told the House that “the legislation is about holding a vote; it makes no provision for what follows. The referendum is advisory.” ( Hansard for 16 June 2015 )
Professor Grayling then goes on to employ some very choice language in which the word “thieves” appears to describe the way in which “the Brexit cabal have treated the outcome as binding and mandating, in defiance of the explicit nature of the Referendum Act itself.”
There are then two parts to Professor Grayling’s argument, the first derived from the briefing paper prepared by the House of Commons Library, and the second from the statement made by Mr David Lidington, who was, of course, the minister responsible for introducing the legislation which authorised the referendum.
The passage in the briefing paper which Professor Grayling refers to (p.25) reads as follows:
“It [ the Bill ] does not contain any requirement for the UK Government to implement the results of the referendum, nor to set a time limit by which a vote to leave the E.U. would be implemented. Instead, this is a type of referendum known as a pre-legislative or consultative, which enables the electorate to voice an opinion WHICH INFLUENCES THE GOVERNMENT IN ITS POLICY DECISIONS.” [ The words in capital letters- which I have supplied- appear in the original but not in Professor Grayling’s version.]
Since Professor Grayling quotation was strangely truncated it is no surprise that he did not find it necessary to ask- as I think we must- how a government could properly be said to have been influenced by the result of a referendum if it did not abide by it ? Professor Grayling would surely have been outraged had the Remain triumphed in the referendum, and if then the prime minister had announced that he was leaving the E.U!
Next we come the remarks made by Mr.David Lidington when he introduced the legislation in question. Professor Grayling quotes Mr. Lidington as saying that: “the legislation is about holding a vote; it makes no provision for what follows. The referendum is advisory.” So far as it goes this is an accurate quotation. But, once again, Professor Grayling has not read far enough. The words which immediately follow the end of his quotation from Mr. Lidington are as follows: “…as was the case for both the 1975 referendum on Europe and the Scottish independence vote last year.” Is Professor Grayling really asserting that the UK government could have overturned the result of September 2014 referendum in Scotland? I so, I can only observe that in so doing he would have embarked on a voyage across the dark ocean from which there can be no return.
Even this does not exhaust the difficulties of Professor Grayling’s interpretation of Mr. Lidington’s remarks. Towards the end of his contribution to the debate Mr. Lidington noted- in words that seem to have eluded Professor Grayling’s observation-that “the referendum is taking place as a result of clear manifesto commitment to negotiate the terms of the U.K.’s relationship with the European Union and to put them to the people in a referendum.”
In other words Mr. Lidington was stressing that the government was morally bound by the pledge contained in the manifesto on which it had been elected to power, only a month earlier. And what was this commitment? The Conservative manifesto for the May 2015 could not have been clearer (p.72) . It was as follows: “Only the Conservatives can and will deliver an in-out referendum.” “We will legislate in the first session of the new Parliament [ i.e. the one in which Mr. Lidington was speaking ] for an in-out referendum to be held on Britain’s membership of the E.U. before the end of 2017. We will negotiate a new settlement for Britain in the E.U. And then we will ask the British people whether they want to stay in on that basis, or leave. We will honour the result of the referendum, whatever the outcome.”
This pledge, I am afraid, make a terrible hash of Professor Grayling’s suggestion that the referendum provided no mandate for Brexit. No one reading the Conservative manifesto would have thought this. I was not privy to the drafting which must have preceded the publication of the manifesto, but it is at least possible that the slightly unwieldy term “in-out referendum” was designed precisely to exclude the sort of reasoning that our philosopher has engaged in.
Professor Grayling owes his readers an apology- otherwise he might start giving his profession, a bad name.
Despite my efforts this post is complicated enough so I’m relegating three points to this appendix.
1] For those who want to get a feel for the referendum campaign the best book I’ve seen so far is Tim Shipman’s “All Out War, the full story of how Brexit sank Britain’s political class” ( London, 2016 ) During the campaign Shipman was the political editor of The Sunday Times which supported Remain. Perhaps his greatest coup is to publish the text of the speech which David Cameron would have given had Remain won the referendum ( p. 619-622) Also writing from the Remain perspective is Ian Dunn’s “ Brexit, what the hell happens now?” ( London, 2016). For one, ( but by no means the only) Leave “take” on the Referendum, see Arron Banks, “The Bad Boys of Brexit, Tales of Mischief, Mayhem, and Guerrilla warfare in the E.U. Referendum Campaign” ( London, 2016). One of the most notable facts about the Leave campaign, insufficiently emphasised by Professor Grayling were the deep divisions within it. It was no tightly knit cabal.
2] In the course of his discussion of the House of Common’s Library paper about the referendum, Professor Grayling refers to the section (p. 26-27) which deals with the super majority thresholds that are sometimes required in referenda about constitutional matters. The paper points out that “discussion of the need for some form of threshold usually arises in the context of ensuing the legitimacy and acceptance of the outcome of a referendum.” But since the paper does not suggest that such “super-majority” or turn out thresholds are necessary conditions for a valid constitutional referendum, I fail to see the relevance of the passage in question to Professor Grayling’s argument, more especially since no such requirement was included in the 1975 referendum which copperbottomed Britain’s membership of the E.U. in the first place. In this business sauce for the goose really must surely be sauce for the gander! Nor, it should be remembered, did the absence of such thresholds prevent the setting up of the Welsh Assembly, the proposal for which only passed by a very small majority. It might, I suppose have been better had some such threshold been built into the legislation, but this would have undermined the democratic credentials of the whole exercise. Professor Grayling’s suggestion that the result of the referendum should be put aside because it lacked such thresholds therefore lacks credibility. Indeed I am prompted to ask if he would really have been arguing in this way if Remain had won?
3] While in this instance I disagree with Professor Grayling I do not think that his discussion of thresholds is altogether misplaced. What would have happened had the majority either way been very small? As Professor Grayling points out this was a possibility which was raised during the campaign by Nigel Farage- who was expecting a narrow win for Remain.
Just how credible would the result ( in either direction ) have been had there only been ( say ) eight hundred votes in it after several recounts? It seems to me that this is an issue which should be addressed by British legislators the next time that they vote to hold a referendum. Similarly there should probably be an amendment to the Irish Constitution which addresses this hitherto neglected issue. ( There is also the related issue which showed up in our second divorce referendum of extreme weather conditions suppressing turnout in one part of the country…)