EU Referendum: Yesterday Once More?

Mick Sumpter, Head of Programme Area for Law, History and Criminal Justice writes:

The forthcoming referendum on the United Kingdom’s membership of the European Union has already generated a great deal of comment and interest, and will inevitably continue to do so. The Prime Minister’s announcement in January of this year, to the effect that Ministers will be able to take a different personal view to that recommended by the government and still remain part of the government — in other words that he would suspend the constitutional convention of collective responsibility — has not stimulated as much debate as the wider issues at stake, but sheds interesting light on the practical operation of our constitution. For those of us old enough to recall the 1975 referendum on the same subject, it also provokes some interesting recollections and comparisons.

The UK joined what was then the European Economic Community (EEC) on 1st January 1973. Ted Heath’s Conservative government at the time did not put the question of membership to the nation, so that the referendum which was held by Harold Wilson’s Labour government on 5th June 1975 resulted from a manifesto commitment to that effect in 1974, the year of two General Elections. At the time of the 1975 poll, the UK had therefore been a member of the EEC — which was a much smaller organisation at the time than it is today — for a mere two years and five months. Nevertheless, the issue of the UK’s relationship with Europe polarised opinion across the political spectrum then as now.

Like his counterpart of today, Wilson also suspended the convention of collective responsibility — and like his counterpart of today he also had no real alternative. Following a renegotiation of certain aspects of the UK’s membership, another similarity with today, Wilson had put government policy on the referendum question to a Cabinet vote, and had secured a majority of 16–7 in favour of a recommendation to stay in. He was therefore well aware that a flurry of Cabinet resignations would follow any attempt to impose collective responsibility, and that his own political authority would be undermined, almost certainly fatally, as a result. Mr. Cameron finds himself in a broadly similar position, and the lesson from both 1975 and 2016 is clear: the convention of collective responsibility is in reality a rule of political expediency, to be enforced by Prime Ministers when it suits them and discarded when it doesn’t. The question as to whether this is a strength (flexibility) or a weakness (self-serving) is worthy of a separate debate in itself.

A similar lack of clarity is apparent from the title of the convention, with a number of sources and commentators referring to it as “collective ministerial responsibility”, “collective Cabinet responsibility”, or simply “collective responsibility”. In Rodney Brazier’s view, for example, the doctrine “binds all members of the government from the lowest to the highest: it is for that reason misleading to refer to it as collective Cabinet responsibility”.[1] Ian Loveland, on the other hand, identifies a particular strand of a broader convention: “The unanimity rule requires all Cabinet Ministers to offer public support for all Cabinet decisions, even if a Minister opposed the policy concerned in Cabinet”. [2] Whatever its precise extent and application, the convention first appeared in the 17th century, when its primary purpose was to conceal disagreements between ministers so as to prevent the monarch from exploiting divisions within the government. As the threat of royal interference receded over time, the convention was maintained as a means of helping to promote public confidence in the government.

In reality, of course, ministers with or without Cabinet rank — at least those who value their careers — will support government decisions in public unless authorised not to do so by the Prime Minister, but this has little to do with convention and everything to do with political reality and the power of Prime Ministerial patronage. The fact that those realities would still exist independently of any convention strongly supports the view that this particular convention might now safely be regarded as redundant.

Another nail in its coffin is the fact that it is now common practice for every government, once it has left office, to be followed by a succession of diaries, memoirs, autobiographies and the like which lay bare its inner workings and expose the conflicts and divisions which inevitably pervade it. Simply put, the convention therefore requires us to suspend disbelief and accept that, whilst we know for a fact that there were major differences of opinion in every previous government, the government of the day is a model of harmony and unity. Any rule — legal, conventional, or otherwise — which flies in the face of reality to this extent is probably holed below the waterline.

Having identified some similarities between 1975 and 2016, in the interests of balance it’s appropriate to conclude with what is likely to be a significant difference. Dominic Sandbrook has written of the 1975 referendum as follows:

“Looking back, the striking thing about the referendum campaign was that it was such a non-event . Despite the fuss about Tony Benn, the tabloids were more exercised by the crimes of the Cambridge rapist, the misbehaviour of the nation’s football fans and the triumphs of the Bay City Rollers. The BBC and ITV struggled to show much enthusiasm for the campaign, and even the broadsheets devoted more attention to the tribulations of Chrysler and the horrific inflation figures. Only very occasionally did the campaign threaten to burst into life”. [3]

Future historians reflecting on the 2016 campaign and its outcome will no doubt describe it in many and varied terms, but “non-event” is unlikely to be one of them.

[1] Constitutional Practice (Oxford, 3rded. 1999), p.144.

[2] Constitutional Law, Administrative Law and Human Rights (Oxford, 7thed. 2015), p.270.

[3] Dominic Sandbrook, Seasons in the Sun: The Battle for Britain, 1974–1979 (Penguin 2013), p.331.

Originally published at blogs.northampton.ac.uk on March 24, 2016.