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The Case for a People's Vote*

Why have we allowed ourselves to accept views expressed by politicians that the 2016 result was a “clear” result? This view should not be allowed to go unchallenged and its repetition does not make it truthful. The view is a fiction.

What follows are to my mind, the most persuasive arguments, in favour of seeking a re-run of the referendum and why we should now insist on a new ballot.

This is the case for a new ballot.

Point 1.

“The people have spoken” but what does that mean? What it means in constitutional terms is by definition the result was “advisory” but insufficient on its own to trigger Article 50(1). Art 50 is intended to be based on a range of factors. Not the referendum result alone. However the PM activated it based solely on the referendum vote alone and in doing so she ignored other important and relevant factors, notably the diverse impact assessments which are universally negative. Her decision to activate Art 50 failed to properly take account of the EU Referendum Act 2015 and was therefore unconstitutional.

Point 2

The basis for the withdrawal did not give a “clear” mandate. Major constitutional changes to the status quo, in most jurisdictions, require a two thirds majority. Not a simple majority. The reason for this is clear to see from the result of the referendum and how it has been interpreted. The turnout for the vote was 72% which was high. In percentage terms this only amounts to 37.73% of the registered electorate. To say that it expressed the will of the British people is mathematically incorrect. Had the turn out been 50% of the registered electorate of whom 51% had voted leave the result would have only been “clear” from only 25.5% of the electorate. A 51.9 % to 48.1% is not therefore a”clear” mandate from the British people.

Point 3

There were approximately one million UK nationals living abroad and they were denied access to the ballot.

Point 4

The first referendum result involved serious criminal activity by the Vote Leave campaign. They over spent on the £7 million campaign budget limit by £450,000.00. Of concern is that some of the over spend bought highly dubious services from the notorious Cambridge Analytica company. Further there were suspicions the donations to the Leave campaign, by Aaron Banks, came from sources in Russia and this was known when the PM activated Art 50.

The solution is to have a properly initiated, constructed and managed new People's Vote that will remedy the defects of the first vote and to do that the deadline for exiting the EU would need to be extended to allow time. The EU27 has indicated it would be prepared to allow further time.

Christopher Cox

Cox Minhas & Co

* The views expressed in this article are my views shared from the extensive original work of David Wolchover of Counsel in his article published on 11th January 2019 in the New Law Journal pages 12 to 14 entitled “The case for a referendum re-run”.

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