‘DO WE WANT A REFERENDUM ON THE COMMON MARKET?’

by Dr Andrew Blick
Senior Lecturer in Politics and Contemporary History at King’s College London; Senior Research Fellow at the Federal Trust

February 2019

As Britain’s political class struggles with its deep divisions over Europe, and tussles over the “peoples’ vote”, it’s worth taking a glance back to the first referendum in 1975.

That referendum was held to affirm British membership of the European Communities following Harold Wilson’s ‘renegotiation’ of the terms of membership. The Hansard Society for Parliamentary Government organised a big public debate on Do we want a Referendum on the Common Market? It was held at Central Hall, Westminster on 21 March 1975, shortly after the publication of the government’s publication of a White Paper on the referendum. The four speakers in the debate were to be Peter Shore, then Secretary of State for Trade and leading anti-Marketeer, and Enoch Powell for “Yes!” against Geoffrey Howe and John Mackintosh for “No!”. Although cabinet collective responsibility was to be suspended by Wilson for the duration of the referendum campaign itself, on the very morning of the Westminster event No 10 suddenly removed Shore’s “licence” to appear on the platform.

The debate

Shore’s last-minute replacement was the eminent journalist and academic Keith Kyle (1925-2007), from Chatham House. Kyle kicked off the debate by admitting that the prohibition on Peter Shore was an unfortunate beginning to what he hoped would be a great national debate. But he at once departed from Shore’s virulent anti-European line by outing himself as a fervent pro-Marketeer – a departure from the expected script that provoked many in the large Central Hall audience. The Treaty of Rome, said Kyle, was not a conventional international treaty but a constitutional hybrid, breaking down the distinction between domestic politics and foreign affairs. The ordinary rules of parliamentary treaty ratification did not apply. The Rome treaty was dynamic, creating institutions capable of development. The government was wrong to claim that membership of the common market is not a surrender of essential national sovereignty: “It is – and it’s about time we surrendered it”.

Kyle recalled that in a 1967 White Paper of the Wilson government had spoken of the constitutional innovation of accepting in advance the primacy and direct effect of EEC law. He approved of the ground-breaking judgments of the European Court of Justice which established that the new legal system, independent of domestic law, would establish rights as well as duties. For Britain especially, because of its doctrine of supreme sovereignty of parliament, this constituted a major constitutional change. “We should openly acknowledge this – a chance for the British people to look at themselves.” Britain was no longer a great power but there was no need to sink into a stupor. Joining the common market was an opportunity to share sovereignty and to gain power: without membership Britain would have no foreign policy. So the decision to join needed to “command consent”. It was a unique decision because “common market membership abolishes the sovereignty of parliament”. Holding the referendum would not set a precedent because other controversial questions, such as hanging and nationalisation, would still fall within the purview of the British parliament.

Next up was former Conservative minister Sir Geoffrey Howe QC (1926-2015), then MP for East Surrey. Howe argued that while the introduction of a referendum would be an irreversible change to the way the country was governed, membership of the EEC was reversible. A future parliament, he said, could repeal the European Communities Act (1972): although leaving the Community would be a traumatic experience, it would be no more difficult technically than granting independence to the colonies. Holding the referendum, however, would set a precedent that would certainly be repeated. It would change parliamentary government irretrievably, making MPs subject to popular mandates. Howe suggested that the introduction of referenda in France under General de Gaulle had caused the French parliament to wither away.

Howe also quoted extensively past speeches from Enoch Powell. In 1972 Powell had told the Commons that referenda were “difficult to reconcile” with parliamentary democracy, and would destroy the principle of cabinet responsibility. Howe agreed: where ministers disagree with government policy, they should resign, as Powell indeed had done (in 1957). How could common market membership be regarded as so important to justify a referendum, he asked, but not so as to require ministerial resignations? In true barrister style, Howe teased Powell and derided Shore’s non-appearance at the event as “a fantastic tergiversation”.

Howe argued that his own constituency electorate knew they lacked sufficient information on the EEC to take the decision on behalf of parliament. The framing of the question would be critical, but seldom neutral. He lampooned the Guardian for having lauded the question proposed by the government as “both fair and likely to lead to the right result”. The only reason the referendum was proposed, he said, was to salvage the unity of the Labour government. “Let us not pretend otherwise.”

Enoch Powell (1912-1998) had been elected Ulster Unionist MP for South Down at the general election in October 1974, having broken decisively with the Conservative party of Edward Heath. He thanked Howe for taking the words out of his mouth: he still believed that a referendum was incompatible with parliamentary democracy as Britain had known it, but so was common market membership. The Heath government had promised that the only way to join the EEC would be with the “full-hearted consent of the British parliament and people”. This promise had been broken: even the decisive majorities in parliament in favour of accession had been slender. Powell would have preferred a general election to have confirmed accession. That is why he had called for support for the Labour party in the two elections in 1974 (Wilson had promised a referendum) ‑ and he supposed that is why Labour had won. The referendum was a necessary “unprecedented precedent”, but would not lead to dozens more.

John P. Mackintosh (1929-78), Labour MP for Berwick and East Lothian, was Professor of Politics at the University of Edinburgh and Chairman of the Hansard Society. A charismatic speaker and ardent pro-European, had he lived Mackintosh would surely have been a leading member of the SDP. Mackintosh challenged Powell’s “interesting and obfuscating argument”. Did Powell not recognize the danger that the people might decide differently from parliament? MPs were not to be mandated. Every government of either party since Harold Macmillan, along with the Liberal party, had come around to supporting EEC membership. That was no secret to the voter.

Mackintosh said that Powell and Kyle were wrong to claim that the shift of sovereignty implicit in joining the common market was unique: parliament had both increased and diminished national sovereignty over Scotland, Ireland and the Empire, and had declared war and peace, all without holding a referendum. The UK had joined NATO and, most recently, the International Energy Authority, which in a crisis could pool the oil supplies of its signatory states, without a referendum.

Contrary to Powell’s assertions, in October 1971 the House of Commons had voted in favour of joining the EEC by a majority of 112, including 69 Labour MPs. Mackintosh regretted that he and other Labour MPs had subsequently sided against the government in votes on the Accession Bill. In the current parliament (of October 1974) there was an even bigger majority of well over 200 for continued EEC membership. How could anti-Marketeers claim that parliament did not represent the people?

A referendum on Europe, said Mackintosh, would be followed by a referendum on Scottish independence. Legislating by Gallup Poll would make the country more and more difficult to govern. Political parties would be divided and increasingly unpopular, rendering government unstable. In the short term, this referendum would tear the Labour government to pieces. If the popular vote was to leave, would the same government go back to Brussels “with an embarrassed cough” and try to represent a different country? If the outcome was to stay in the EEC, the left wing and the trade unions would be embittered in defeat.

Questions and answers

After the main speeches, a dozen questions were asked from the floor. These allowed John Mackintosh to add to his earlier argument. He asked what would happen if Scotland was seen to vote stay and England leave. He recalled that Scotland’s system of Roman law had been subject to the Anglo-Saxon law of England for two centuries because the principles of English law were sound: he saw no difficulty in accepting the jurisdiction of the equally sound European Court of Justice. He hoped and expected the European Community to develop on parliamentary and not plebiscitary lines, including the holding of direct elections to the European Parliament.

As expected, this agitated Enoch Powell: the European Parliament “would not be a sovereign parliament of this country”. The Council of Ministers, which would levy taxation, was not a parliamentary body. The veto retained by each member state would someday disappear as being contrary to the principles of the Rome treaty. He was surprised by there being “so many George the Thirders who believe in taxation without representation”. Powell hoped that, in search of full-hearted consent, individual parliamentary constituencies would count the referendum vote.

Geoffrey Howe recalled that Powell had voted for EEC accession in both 1962 and 1967, and added that the Conservative manifesto in 1970, on which Powell had stood, had said that its government would progress the membership application made by Labour.

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On 10 April 1975 the second reading of the Referendum Bill was carried in the Commons by 312 votes to 248. The UK’s first national referendum was duly held on 5 June, with a majority of 67% to stay in the European Community. The Labour party duly split. Referendums on Scottish devolution were held in 1979 and 1997 and on independence in 2014. Referendums on Welsh devolution were held in 1979, 1997 and 2011. Northern Ireland had a referendum on the Good Friday Agreement in 1998. The EU Act 2011 provided for the holding of UK-wide referendums to sanction any further transfers of sovereignty to the EU. A second referendum on EU membership was held in June 2016. A majority of 52% across the UK voted to leave: England and Wales voted to leave; Scotland and Northern Ireland voted to remain. The split in the Conservative party is in train.

From 1974-76 Andrew Duff was Research Officer to a Hansard Society Working Party on the effect of membership of the European Community on British representative institutions, the report of which was published as ‘The British people: their voice in Europe’, Saxon House, 1977. Duff recently unearthed a tape recording of the Central Hall meeting, which he had helped to organise.