Sometimes it is a Good Thing to ignore Referendums

Jane Lambert

The Prime Minister's response to growing calls in her party and the nation for a "Peoples' Vote" or second referendum is that it would somehow "break faith with the British people" (see Brexit: May to urge MPs not to 'break faith' by demanding people's vote 17 Dec 2018 The Guardian).  In my article The Western Australian Secession Referendum - A Precedent for Dealing with Troublesome Referendums? (17 Dec 2018 NIPC Brexit) I wrote that a select committee of 3 peers and 3 MPs recommended that Parliament should not even consider the result of a referendum in which almost all eligible voters had participated and where the majority was 66% as opposed to a rather paltry a 51.9% plurality.

The issue that was the subject of the referendum was whether the state of Western Australia (with a land area of just over 1 million square miles or just over a third of the territory of Australia) should secede from the federation and become a separate nation.  The reason why that question came before the British Parliament is that the Australian constitution was a British statute that made no provision for secession.  The only way that the result of the referendum could be implemented was by an Act of the United Kingdom Parliament.  Parliament set up the select committee to consider arguments from both the state and federal governments.  The history of those events is discussed by Mr Tom Musgrave of the University of Wollongong in an excellent article entitled The Western Australian  Secessionist Movement which was published at page 95 of the Macquarie Law Journal (2003) Vol 3. Copies of Mr Musgrave's article may be downloaded from the Macquarie Law Journal website.

The parallels between the Western Australian secession referendum and the UK's Brexit referendum are striking.  Identity and sovereignty were important issues in both referendums.  Western Australia had enjoyed considerable autonomy under the Colonial Laws Validity Act 1865  (c. 63 28_and_29_Vict) and many of its inhabitants were reluctant to give up that autonomy to join states many hundreds of miles to the east in a continent-wide federation. Similarly, a large section of the British public had always been opposed to an ever closer union.  For a while, participation in the Australian federation brought many economic benefits just as British membership of the European Union did in the United Kingdom.  Those benefits came to an end for many in Western Australia with the Great Depression just as they did for many in the UK with the 2008 recession. A single-issue political movement known as the Dominion League campaigned for a secession referendum just as UKIP did in the UK.  In Western Australia as in the UK, much of the press was vociferous in its support for those referendums and the outcomes of those who campaigned for them.

In my earlier article, I noted that the arguments for and against independence were almost exactly the same as in the Brexit debate.  Essentially whether the will of the overwhelming majority of the Western Australian electorate trumped parliamentary sovereignty as expounded by Burke and Dicey.  In 1935 the doctrines of Burke and Dicey won and it was probably just as well that they did because Austraila found itself at war with Japan in 1941.  Enemy forces bombarded Darwin in February 1942 and were on the point of launching an invasion.  Happily, Australian forces supported by their American and other allies gallantly resisted that challenge but that may not have happened had Australia fragmented into separate nations.  The population of Western Australia was under a million in the early 1940s. There might well have been antagonism between the successor states which would have obstructed a military alliance.  Had Australia or just Western Australia fallen to the enemy the course of the Second World War might have been very different.

Returning to the present, neither Mrs May nor anyone else has explained persuasively why Parliament should not exercise its independent judgment on whether Brexit is or is not a good thing rather than give effect to the will of a narrow plurality.  Losing faith in democracy is one argument and even civil disorder along the lines of the vestes jaunes protest in France has been forecast.  Exactly the same was said in 1935 but nothing like that happened in the end.  Economic conditions improved and calls for independence abated.

There is no reason to suppose the same would not happen if Parliament called a second referendum or simply repeated the European Referendum Act 2015.  As this is a legal blog and not a political one I do not argue that Parliament should do either of those things.  At the same time, nothing has happened since 1935 that leads me to doubt that, if Parliament wished to do so, it could.

Anyone wishing to discuss this or my previous article is welcome to call me on 020 7404 5252 or send me a message through my contact page.