11th March 2023
Over at my Substack, this week’s essay on legal history for paying subscribers is on the prehistory of referendums in the United Kingdom.
The essay begins as follows:
For Philip Larkin a certain kind of intercourse began in 1963 – between the Lady Chatterley obscenity trial and the Beatles’ first LP.
Similarly referendums can appear to have started, at least in the United Kingdom ten years later in 1973 – not long after the Oz obscenity trial and the Beatles’ last LP.
For 1973 was the year of the border poll in Northern Ireland, which is usually considered to be the first referendum in the United Kingdom; and 1973 is also the year that the United Kingdom joined the European Economic Community (EEC), the membership of which was then to be subjected to a referendum in 1975.
For many of us in 2023, fifty years later, the most notable referendum was the one in 2016 on whether the United Kingdom should depart the successor to the EEC, the European Union.
Others are preoccupied with other referendums. Some are seeking a further Scottish independence referendum, to reverse the result of the result of the 2014 vote. And there is also the real prospect of a further border poll in Northern Ireland which may, in turn, lead to Irish unification.
Our recent politics are dominated by one referendum in particular, and the future of the United Kingdom itself may depend on two referendums yet to come.
And this is in addition to the referendums which led to the current devolved settlements in Scotland, Wales and Northern Ireland, all of which are now fundamental parts of our constitutional order.
But there was once a time before any of these referendums had been mooted or taken place or were even contemplated.
A time when 1973, and what then followed, was decades in the future.
And so this essay tells the story of the early history of referendum issue in the constitutional and political affairs of the United Kingdom.
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You can read the rest of the essay here.
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These essays are on topics to do with legal history and legal lore – and they are in addition to my free-to-read topical law and policy commentary here and at Substack every weekday.
Other essays include:
Dr Bonham’s case (1610) – and the question of whether parliament is really sovereign.
The 1712 case of Jane Wenham and the last of the English witch trials.
Taff Vale (1901) – perhaps the most important case in trade union history.
Wednesbury (1948) – the origin of the modern principle of legal unreasonableness.
Malone (1979) – perhaps the most significant constitutional case of the last 50 years.
How the courts improvised legal solutions in the hard case of George Blake between 1990 and 2000.
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What happened to the word ‘plebiscite’?
I can never remember how to spell it.
All referenda on “constitutional” matters ie Brexit should require a 2/3rd majority vote to change course, as is the case in many other countries. The narrow result to leave the EU 52-48 with 37% not voting at all led not to Theresa May’s oft-chanted “Will of the People” but a travesty for which we are all paying heavily.
What an inspired beginning!