By stewartb

There are lessons from recent UK history about how a mandate for a referendum on constitutional matters can be secured. The mandate for the EU referendum in 2016 provides a case study.

Much has been made, rightly, of the outcome of that referendum – notably Scotland (and NI) being ‘dragged out of the EU against its will’ – but perhaps less well remembered is how the mandate for it came about. This history is of contemporary relevance.

The election manifesto

In preparation for the 2015 UK General Election, the Tory Party published its manifesto (for full text see https://ucrel.lancs.ac.uk/wmatrix/ukmanifestos2015/localpdf/Conservatives.pdf). It had a section entitled ‘Real change in our relationship with the European Union’ which included the following (from pages 72-3, with my emphasis):

• ‘We will: give you a say over whether we should stay in or leave the EU, with an in-out referendum by the end of 2017’

• ‘The EU needs to change and it is time for the British people – not politicians – to have their say.’

• ‘It will be a fundamental principle of a future Conservative Government that membership of the European Union depends on the consent of the British people – and in recent years that consent has worn wafer-thin.

• ‘That’s why, after the election, we will negotiate a new settlement for Britain in Europe, and then ask the British people whether they want to stay in the EU on this reformed basis or leave. David Cameron has committed that he will only lead a government that offers an in-out referendum. We will hold that in-out referendum before the end of 2017 and respect the outcome.’ And ‘We will honour the result of the referendum, whatever the outcome.’

The 2015 election results

Having set out its stall, how did the Tories fare in seeking a mandate for the proposed referendum? Readers will know the Tories won the election and proceeded to hold the referendum but, in detail, what was the extent of their victory? Helpfully, the House of Commons Library has published a comprehensive briefing on the 2015 General Election results (see https://researchbriefings.files.parliament.uk/documents/CBP-7186/CBP-7186.pdf ). The statistics, in the context of determining what constitutes a mandate in a first-past-the-post electoral system, are noteworthy:

• Across the UK, the Conservatives polled 11.3 million votes, just 36.8% of the vote
• Turnout across the UK was 66.2%
• 318 of the Conservative’s 330 seats won were in England – so the UK ended up being governed by a party with 96% of its MPs coming from England
• The Conservative government elected in May 2015 held the lowest share of the vote in both Wales (27.2%) and Scotland (14.9%) of any government since 1945
• The same Conservative government held the lowest number of Scottish seats of any government ever
• The SNP won 56 seats, the highest percentage of Scottish seats won by a single party at any general election ever
• On vote share:
  • In England: the Conservatives had a 40.9% share
  • In Scotland: the Conservatives had a 14.9% share – the SNP had a 50% share
  • In Wales: the Conservatives had a 27.2% share – Labour had a 36.9% share
  • In NI: the Conservatives didn’t have candidates in NI. The anti-EU DUP had a 25.7% share.

Basis of the mandate

So, in summary, the ‘mandate’ to hold a referendum on a constitutional matter of equally huge significance for every nation in the UK was based on the Tory Party becoming the government in Westminster with:

• just 36.8% of the vote across the UK
• gaining the largest share of the votes in just one of the four nations in the Union, viz. 40.9% in England
• having 96% of its MPs coming from seats from just one nation, England.

What happened next?

We all know what happened next. Based on this ‘mandate’, a referendum was held and despite votes in favour of continuing EU membership in NI and Scotland, narrow majorities in England and Wales led to the UK withdrawing from EU membership. But more than this, subsequently, Tory governments decided on a so-called ‘hard’ Brexit – out of the customs union, out of the single market, an end to freedom of movement – despite the majorities in favour of EU membership in Scotland and NI. The Tories in Westminster had the power and used this power to address England’s needs and wants.

The irony!

There is one other facet of the Tory manifesto for the 2015 General Election that is noteworthy in the context of the above. On pages 69 and 70 there is this (with my emphasis):

‘England, Scotland, Wales and Northern Ireland – ours is the greatest union of nations the world has ever seen Together we have done so much, and we can do much more The Conservative Party is the party of the Union – and we will always do our utmost to keep our family of nations together.’

‘We will build an enduring settlement for the United Kingdom: We will work to ensure a stable constitution that is fair to the people of England, Scotland, Wales, and Northern Ireland.’

And on page 71: ‘We will maintain Northern Ireland’s position within the United Kingdom on the basis of the consent of its people.’

These statements are from a party which in government opted to pursue a mandate for an in-out EU referendum that had been gained from just one nation amongst four. They are made by a party which pressed ahead with a ‘hard Brexit’ despite a majority of votes in Scotland and NI cast in favour of retaining EU membership. So references in the Tory manifesto to ‘keeping our family of nations together’, to being ‘fair’ to the people of the four nations, to ‘consent’ of people all ring very hollow now!

End notes

When musing on the contemporary significance of this ‘mandate’ case study, it’s also worth remembering this. The principle of having specific mandates for territorial referenda on constitutional issues i.e. mandates for democratic tests within a single UK nation, has already been established: the 2014 Scottish independence referendum and the commitment on a border poll in NI contained within the Good Friday Agreement are relevant cases.

Secondly, the Unionist parties, headquartered in England and predominantly gaining their influence in Westminster through addressing the needs and wants of England’s electorate, may assert that the UK is a ‘voluntary union’ but none will be open and honest about how that voluntary status is given democratic and legal effect. If the Union is indeed ‘voluntary’ then logic demands that there is a way for a nation to choose to leave, just as there was a way for the UK to leave the voluntary European Union after the Tories secured a mandate to test the wishes of the electorate in a referendum.

In a voluntary arrangement, those who wish to dissolve the Union must have legitimate, legal means of gaining a mandate, either to act directly to leave or to establish the ‘leave proposition’ and then test it with the people in a confirmatory referendum. This is where the duplicity of Unionist politicians comes to the fore. One example is evident in the final report of former PM Gordon Brown’s commission on the future constitution of the UK.

Source: Labour Party (2022) A New Britain: Renewing our Democracy and Rebuilding our Economy – Report of the Commission on the UK’s Future. (https://labour.org.uk/wp-content/uploads/2022/12/Commission-on-the-UKs-Future.pdf  )

On P.51 we read: ‘The United Kingdom – as a voluntary nation of nations – is unique in the world.’

Notwithstanding this, a critique of the Commission’s report by the Institute for Government (IfG) – a London-based think tank with no reason to favour the case for Scotland’s independence – states: ‘the commission’s proposals are surprisingly light on issues related to the Union, and perhaps intentionally silent on the process for triggering an independence referendum in any of the UK’s constituent regions, with Brown stating publicly that there will be no future referendum in Scotland.’

Source: https://www.instituteforgovernment.org.uk/explainer/labours-constitutional-proposals   

The implication of that phrase ’there will be no future referendum’ is that a mandate for holding such a referendum will never be possible or never accepted. This is a remarkable position for any democrat to adopt, especially one who ‘appears’ to endorse the existence of a ‘voluntary’ Union. (Other leading Labour politicians have made similar absolutist statements.) ‘Renewing our Democracy’ the Commission’s report claims: in truth it is complicit in denying democracy in Scotland.