Lawyers for Alternative Facts?

It seems that, when it comes to Brexit, we can’t trust anyone to get their facts right. Not even lawyers. At least, not Lawyers for a People’s Vote (LfaPV).

I don’t know why the 1975 referendum is being held out as a model of behaviour

This morning, a barrister friend tweeted that he had signed LfaPV’s open letter to the Prime Minister, calling for a second referendum. The LfaPV site opens up with warm recommendations from the Conservative former Attorney General, Dominic Grieve QC MP (“the arguments in favour … are overwhelming”), and Labour peer, Baroness Kennedy QC (“I hope many other lawyers come on board”).

LfaPV’s letter is short. It is based on two arguments which revolve around comparison with the referendum conducted by the government of Harold Wilson in 1975. The second argument is built around the following error of fact:

Second, voters are entitled to know what they are voting for. There was a key difference between 1975 and 2016. The earlier referendum was held after negotiations were complete, so voters knew what they were voting for. In 2016, the nature of the negotiation process and its outcome were unknown. Voters faced a choice between a known reality and an unknown alternative.  

Did you spot the mistake? If you like, I can wait whilst you re-read the passage …

The negotiations prior to the 1975 referendum were to establish revised terms in the event that the UK remained inside the European Community. The negotiations did not establish the terms on which the UK could leave. The 1975 government’s leaflet on the matter was quite clear on what would happen “if we say No”:

“Inevitably, there would be a period of uncertainty. … We would have to try to negotiate some special free trade arrangement, a new Treaty. We would be bound by that Treaty.”

At the end of that leaflet, the Wilson government promised to abide by the decision “whichever way it goes”. The 1975 government did not say that a vote for “No” would lead to a second referendum to check back on the people’s view.

I don’t know why the 1975 referendum is being held out by today’s lawyers as a model of behaviour to be replicated. I doubt that they would recommend the 2016 referendum as a model for the future. And yet, on the issue that is central to LfaPV’s argument, the two referendums are directly comparable.

Update 23 October 2018:
I wrote to LfaPV to notify them of my challenge. Their response, which I received today, seems to have missed the point. They have provided me with a few hundred words of historical context in support of the assertion that “reasonable people can disagree about how best to characterise the limited uncertainty that existed in 1975, but it would not be reasonable or credible to equate that limited uncertainty with the complete uncertainty surrounding the leave option in 2016”.

I don’t disagree with LfaPV at all on that point. Exiting in 1975 after two years would have been an altogether much simpler process than exiting after 40 years and, of course, the degree of uncertainty in 1975 would have been much less than it is now. But none of that has anything at all to do with my point that LfaPV are wrong to say in their open letter to the PM, “There was a key difference between 1975 and 2016. The [1975] referendum was held after negotiations were complete”. It wasn’t. If we had voted to leave, further negotiations would have had to take place: the government of the day said exactly that, at the time.