UK Constitutional Law Association

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Richard Ekins: The Legitimacy of the Brexit Referendum

Richard EkinsAs all the world knows, last Thursday the British people voted in a referendum about whether the UK should leave the EU.  The prospect of the referendum encouraged much reflection about the merits of referenda and their consistency or otherwise with parliamentary democracy.  The outcome of the referenda has spurred more such reflection, with many lamenting that the referendum was held at all and with some even proposing that the vote should be ignored or flouted or otherwise circumvented.  It is hard to imagine a more obvious way to flout democratic norms and to inflame political controversy.  This post briefly outlines some thoughts on the legitimacy of the referendum process and the reasons to respect its outcome.  Nothing herein turns on the merits of the vote itself.

Referenda and representative government

I am a strong supporter of representative, parliamentary democracy.  Parliamentary sovereignty is a very good constitutional rule, at least in Britain and other places with a mature political culture, and the ordinary legislative process is a good way to make law.  By contrast, the electorate is not a capable lawmaker in general: direct lawmaking by (citizen-initiated) referenda often ends badly.  Representative democracy is not a second-best form of direct democracy and satisfaction of popular preferences is not the object of good lawmaking (the common good is).  I have argued all these points in my work on legislative intent and in various papers on representative democracy and self-government.  And I have also spoken publicly in opposition to citizen-initiated referenda in New Zealand.

Nonetheless, there are times where it is reasonable for Parliament to put some public question to a referendum, especially constitutional questions that concern national identity.  The case is strongest when the decision is practically irreversible, where there is a standing possibility that many people’s views may not be adequately represented in the ordinary legislative process and where accountability after the fact is insufficient to secure trust in the legislative decision.  Questions about the constitutional identity of the state itself – say about Scotland leaving the UK or New Zealand joining Australia, etc. – require broad support.  They are importantly different to decisions about particular laws, where reversal after the next election is always possible, and are instead more fundamental self-constitutive choices.  This does not make the use of referenda axiomatic but it does make it intelligible.  Holding an election that is fought, more or less, over a single question is perhaps an equivalent (as with the general elections following the Lords’ rejection of the People’s Budget in 1909/1910, which led to the enactment of the Parliament Act 1911).

The propriety of holding this referendum

It was quite proper for Parliament to put the question of whether the UK should remain a member of the EU to the British people for decision by way of a referendum.  Recall that the referendum was held to honour a manifesto commitment, which was itself a reasoned compromise within the Tory party, whose MPs disagreed about the question of remaining in the EU but who were able to agree that the people themselves should decide.  The division in the Tory party reflects, imperfectly no doubt, long-standing, widespread public scepticism about the EU as a political project.  Still, those many voters keen on outright exit from the EU have had little voice in Parliament.  The creation and partial electoral successes of UKIP owe something to this fact and, by posing a threat to Labour and the Tories, prompted a political response.  Further, the UK has been increasingly detached from the EU since it decided not to join the Eurozone, the members of which may need fiscal and political integration if the common currency is to survive. Thus, ongoing tension about whether the UK ought to remain a member of the EU has in some sense been inevitable.

It was right to hold a referendum in 1975 about whether the UK should remain in the EEC.  It would have been reasonable to have held multiple referenda at various stages in the sequence of Treaty changes, as other states have had and as the EU Act 2011 now requires.  It was reasonable for a major political party to undertake to put this long-running question about whether Britain should remain to the people to decide.  On forming a majority government, the PM and his cabinet were honour bound to support a referendum.  If the PM truly believed Brexit threatened global war, then perhaps he should have betrayed this trust and/or explained that conditions had changed (if he thought they had).  But in this case he would, understandably and I dare say legitimately, have been deposed by his party, with his successor delivering on the promise: the PM is not the party’s master.

Reasons for respect

Parliament made clear that the decision about whether to leave the EU was to be settled by the referendum.  There were good reasons, outlined above, why Parliament should not permit Brexit otherwise than by way of a referendum.  Even if one denies all this, one should still accept that a referendum once held settles what should be done.  For the decision to proceed thus is itself an important public decision that fairly governs how we jointly are to decide.  That is, Parliament having decided to hold the referendum, and the public having participated fully in it, the result should be respected and not undone.

Political fairness and democratic principle require one to respect the outcome of the referendum even if one is persuaded that Brexit would be a very bad idea.  One might think it wrong to hold the referendum, but it was held – and Parliament invited the people to decide this question.  There was a lengthy, wide-ranging, high-powered campaign that culminated in high public turnout and a clear outcome.  The remain camp had a fair hearing: it was led by the PM and most of cabinet, with the support of most MPs with much business and international support.  In short, the important constitutional question of whether Britain should remain in the EU was fairly settled by public vote.

The proposal to ignore or undo the vote is unjust.  It bears noting that the relatively powerless in our polity – the poor – overwhelmingly supported exit.  Ignoring the referendum would be particularly unfair to them.  It would not be consistent with treating them as free and equal persons entitled by the law and constitution of their land to a share in self-government, not least since the rationale for ignoring the process in which they participated has so often been framed in terms of outright contempt for them.  Any failure to act on the decision made in the referendum that the UK should leave the EU would be a profound betrayal.  It would be no mere failure to recognize the perspective of the dispossessed, but would be the betrayal of holding out to them, as to others, a question for decision and then ignoring their decision because one does not like it.

Kenneth Rogoff argues that a single referendum should not license fundamental constitutional change.  No such stricture has limited fundamental change before.  Britain’s consent to the ongoing and far-reaching expansion of EU competence has been by simple agreement of the Crown.  This capacity is now limited by the EU Act 2011, but still it is only an ordinary referendum that is required.  Quite apart from any referendum, Parliament has authority to direct the Crown to withdraw Britain from the EU and there is nothing at all perverse in Parliament choosing to make provision for a clear decision on point by way of a single referendum, inviting and encouraging public deliberation that culminates in a moment of clear and authoritative decision.

Parliament could of course have required two successive referenda and/or a referendum plus parliamentary support, etc.  This would not have been irrational, although it would have been thought by many in Parliament and the public to be unfair.  For it would load the dice too much against exit and thus would frustrate unjustly the decision of those who favour exit, which is not a position that in a democracy can be ruled out by fiat.  In any case, Parliament having chosen already the decision-making procedure, it is not legitimate now to say that this should be set aside.  The time for arguing for a two referenda requirement, or majority support in each part of the UK, was before this referendum was held – indeed, before the European Union Referendum Act 2015 was enacted.

In the last few days there has been much discussion about the prospects of Parliament ignoring or defying the vote.  And a petition is underway to hold a second vote.  If or when Parliament considers this petition, its clear response should be that the dissatisfaction of some with the outcome is not a reason to repeat the exercise.  In a recent article in the Guardian, David Lammy MP objects to how the leave campaign was fought, to what a new PM Johnson might do, and to the impact on his constituents, the vast majority of whom voted remain.  Assume all these points are true: they are all irrelevant because they beg the question – unfairly – against the 33m who just voted.  The logic of the position seems to be that Britain should not exit therefore a decision that it should exit will not stand.  This is not how a democracy should conduct itself. Parliament invited the electorate to decide this question and MPs, and others in public life, should respect the decision.

There are very real risks in this flirtation with flouting the decision.  The risks are compounded by the rhetoric of much of this discussion, which is often frankly contemptuous of (“stupid, xenophobic”) working class voters and (“senile, selfish”) elderly voters.  It is just possible that the interests of working class and middle classes come apart here.  And even if, say, working class voters misconceived their material interest, they might reasonably have acted for other ends.  In any case, we do not or should not live in a state where disappointed middle class voters get to reverse the decisions they think their ill-informed inferiors have taken.  The same holds for expressions of anger at older voters: this is neither civil nor just even if Brexit is disastrous.  Older voters have as much right to vote as younger; there is no warrant for assuming they do not have the common good (including the interests of younger voters and children) in mind; and indeed in voting leave they may have been voting selflessly against their own material interests.

Reciprocity and responsibility

If Scotland had voted to leave the United Kingdom in 2014 should the UK have put the question to Scots again on the grounds they were wrong?  No.  If one chooses a referendum as the way to make a public decision of this kind one lives with the outcome even when one is on the losing side.  Imagine that Thursday’s vote had been to remain in the EU.  Would it conceivably have been legitimate for leave campaigners to insist that the decision should not stand unless it was confirmed in a second referendum later in the year, or that Parliament should ignore the vote and initiate Brexit anyway?  No.  Almost everyone now urging that we ignore or undo the outcome of the referendum would have rejected any such proposal out of hand.  It is to be hoped that when tempers cool, the obvious unfairness of this action – its basic failure of reciprocity – will be apparent and it will be abandoned.

Plainly the UK now faces many very tricky questions.  But it has made a decision to leave the EU, as the EU clearly recognises, notwithstanding that as yet Art 50 has not been invoked.  It is not wise or just to try to block implementation of that decision, to circumvent it.  To his credit, Sir Jeremy Heywood, Cabinet Secretary, has advised civil servants of their duty to stand ready loyally to implement the decision whatever their views of its merits.  Likewise, the superior courts were commendably restrained during the referendum itself, refusing the invitation to unsettle Parliament’s choice about who might vote.  Many other persons in public and private life have responsibilities which they might neglect or subvert in order to bring about conditions in which the people regret their decision.  One hopes this temptation is resisted.  Heywood is right and MPs should see their duty likewise, while continuing to argue about detail.  But temperate, measured action will be unlikely for so long as people treat other voters as fools or monsters or deny the outcome of the fair and legitimate decision-making process which they did not otherwise contest.

Richard Ekins, St John’s College, University of Oxford

(Suggested citation: R. Ekins, ‘The Legitimacy of the Brexit Referendum’, U.K. Const. L. Blog (29th Jun 2016) (available at https://ukconstitutionallaw.org/))

94 comments on “Richard Ekins: The Legitimacy of the Brexit Referendum

  1. Tom Austin
    June 29, 2016

    Well Richard, I’ll willingly concede that you know far more about ‘smug’ than I do.
    If indeed Parliament had thrown the question of our continued membership of the EU over to the populace for a ‘decision’, as opposed to a ‘view’, then this passed me by, Mr. Lammy by, and very many others to boot. Such a thing may now suit – equally well, the ignorant and the knowing, and as you say…
    “No such stricture has limited fundamental change before. ”
    The ignorant, of course, remain blameless:Yet where comes the ‘informed consent’, in the absence of actual information?
    -No clear statement of intent:Decisive verses advisory.
    -Debate ‘entirely’ fact-free:Blind fear verses blind faith.
    -No onus placed on the Leave side to offer-up a plan for their vision of our future.

    The result of the referendum aside: How can any of us be content to shift from Parliamentary Sovereignty, to mob rule, and then to Royal Prerogative?
    But, as you say…
    “No such stricture has limited fundamental change before. ”

    So, why not another ‘informed’ referendum or a General Election?

    I think I know the answer though: From the first to the last, this is all about getting the Tories into power and keeping them there.

    • I can understand Richard’s comment about the Scottish Independence Referendum, however even with this, it was advisory. The demographic and marginal outcome would need to be considered and voted upon by Parliament. A majority of one vote, for example, or an outcome that displays wide demographic division, would need to be considered very carefully by Parliament. That is the reason for having referenda in the UK that are legally only “advisory”. Parliament is sovereign.

      • Roger Thrush
        November 5, 2016

        Parliament with its authority passed this decision to the people. It got its decision so now all that is required is for the executive/government to execute the decision and the process in the interests of the people as best they can. No need for a vote, no need for a running commentary, just do the job required by the people.

      • Tom Austin
        November 16, 2016

        While it is difficult to argue against;”Parliament… passed…this to the people.” The ‘authority’ settled upon the seeking of advice, and no more.
        It then seems reasonable that Parliament has to vote upon whether or not to grant authority to the Government’s read of the advice received.

      • Roger
        November 16, 2016

        The UK is leading the way in the EU by leaving. They didn’t listen to our pleas for change while inside, and are only marginally more concerned about EU structural problems now we’re leaving, but worst of all, they still aren’t listening to the people or showing any signs that they know how to adapt.

        Leaving is a good decision and needs implementing – the judiciary should know when the legalities need to be re-engineered, they will need to be pragmatic to find a way to allow the government to get on with the job the people now demand of them.

      • Tom Austin
        November 16, 2016

        It is now my turn to beg to differ.
        One of us has a mirror vision of the actuality.
        It strikes me that the EU is more likely now, certainly shall be after A50 process begins, to circle their waggons.
        What you note to be recent concessions are vocalizations of established truths;if only a UK Government was ever honest to us about its dealings within the EU, we would have known this years ago.

      • Roger
        November 16, 2016

        At least we have a point of agreement – the EU is not adapting, they are making no changes, or at least no significant changes. There is no sign of improvement.

        As long as our wagon is unhitched, we’re off, hooray, then I can live with a drawn out argumentative, inefficient, costly process brought about by people who despite living in a democracy seem keen to subvert the decision of the majority. It’s like being in the EU, but hopefully not for long!

      • Roger
        November 16, 2016

        The Appeal judges must find that it would be unsafe to pass the decision back to parliament as it is clear its membership will be mischievous in their efforts to delay and de-rail Brexit.

    • Cornelia Schmidt-Wagner
      July 30, 2016

      Great Britain is a Parlaimentarian Democracy and NOT a DIRECT one as the democracy in Switzerland. The Swiss Constitution names the State form of Governance a “direct “democracy , according to which all Federal laws in Switzerland are passed after conducting a referendum.

      There is NO such a provision in the State & Constitutional laws of Britain.

      Therefore there is NO legal ground (Rechtsgrundlage in German ) for passing any Referendum Acts by House of Commons.

      There can not be a comparisment to Scotland , because Scotland is an independent member country in the UNION of England , Northern Irland and Wales.

      Scotland has it’s own parlaiment and Judicial system.

      I still did not check the Scotish Constitution, but it sems, it has a provision for conducting referendums in the country in regards of it’s divorce from England.

      • Tom Austin
        August 2, 2016

        C S-W
        Alas ‘logic’ is no test of these matters. One comment from a guest of The UK Constitutional Law Association, that received broad approval, centred upon the likely consequences to a Government if it were to transgress known constitutional boundaries:It would be regarded as “rude”.
        As I have already stated: The most likely stratagem at the disposal of the UK population that could work against this ‘affront’ is to make it known – to the actors in this affair, the depth of disdain such action will engender in the voting public.
        While there certainly is much to study in this ‘Brexit’ situation, and much to report upon, the undoing of our ‘Elective Monarchy’ will come only from a reaffirmation of the necessity of common-consent.

      • Roger
        November 16, 2016

        I don’t believe Scotland is a separate country, only in history. It is part of the UK and splitting the vote to show how Scots voted is not helpful in a democracy in which people abide by the will of the majority. It only has a subservient partial parliament with powers devolved by Westminster, only available by the agreement of the UK government and Westminster parliament.

        Union means united, as one.

        Scotland cannot hold a referendum without the consent of the UK.

        It is inconceivable that there will be another referendum on Scottish independence before Brexit has taken place and has been reasonably established.

  2. Archie Macintosh
    June 29, 2016

    The mistake was to have a referendum where the outcome rested on a simple majority. When the population is pretty much split 50:50, such a referendum is no better than tossing a coin, and a statistically insignificant difference in one direction or the other will produce a endlessly-contested outcome such as we are now faced with.

    • Clive Sims
      June 29, 2016

      I fully agree Archie. If this was a sample, & it can be treated as such, then statistically it is not significant.

  3. Robin Evans
    June 29, 2016

    I think the argument a strong one, whatever the legal or constitutional standing of an advisory referendum. But we operate a parliamentary democracy and the act of withdrawal should be mandated by parliament. An act outlining the terms and conditions the UK seeks should be presented. If the House of Commons votes this down then it is for them to consider their conscience and consider dissolution for a general election. I, and many others it would seem, would support a legal challenge were the new PM to act in an executive capacity on the basis of a legally enshrined advisory referendum without parliamentary approval.

    I would be interested to see how the referendum vote looks on a parliamentary basis, ie. if each MP voted in parliament according to their constituency vote. Has anyone seen such an analysis?

    • Bruce
      June 29, 2016

      What were the voting districts which were reported regarding the referendum if not the constituencies? If these follow, then all the Scottish MPs would vote remain, most of the London, Manchester, etc MPs as well, but the majority of the English and Welsh constituencies vote leave.
      http://www.theguardian.com/politics/ng-interactive/2016/jun/23/eu-referendum-live-results-and-analysis

      http://www.bbc.com/news/uk-politics-eu-referendum-36622039

      • Robin Evans
        June 29, 2016

        The Guardian analysis is interesting but doesn’t show how a vote in parliament would look (unless I count squares). However, according to the BBC there are 400 ‘voting regions’ in the referendum but we have 650 MPs. Any ideas on the discrepancy?

      • Antony Carter
        July 24, 2016

        The problem is clear. The counting areas are not parliamentary constituencies except in NI. They are Council authority areas. Therefore they constitute several whole and partial constituencies represented by several MP’s. It is therefore impossible for an individual MP to identify with any accuracy how their constituency voted. In any debate therefore MP’s must vote according to their conscience.

  4. Rob
    June 29, 2016

    The leave campaign, in particular, was based mostly on lies and deceit. Large numbers that voted leave now feel cheated.
    In short they have been mis-sold. They are not going to get what they were led to believe they would get.
    How can it be legitimate?

    • Stuart Calvert
      November 6, 2016

      Just like Remains, WW3, End Of The World, Doomsday, Pensioner Threatening, And the claim Leave made of EU Army and Boarder Force claimed as a Lie turns out 100% true

  5. Mike Tremblay
    June 29, 2016

    I would distinguish 1. the legitimacy of the referendum (your argument for determining significant constitutional matters), 2. whether the referendum “question” was well formed, and 3. whether the response (result) is sufficient evidence to instruct Parliament. My answers are 1. Yes, 2. No, 3. No. No constitutional arrangement cannot be reversed and Parliaments can ignore the decisions of previous Parliaments (just hold a general election). You have done a good job on 1. For 2, let’s think whether the EU is a “membership” organisation. It is not; it is a pooled sovereignty arrangement (Art 1 TEU), so the asking a vague binary question will return, as you note, a variety of responses based on interests which are likely largely irrelevant to the question; since the UK is not strictly speaking a member of the EU (the EU does not exist separately and apart from the pooled sovereignty of the constituents, though it may be ‘bigger’ but that is of course the point of collective action. Moreover, the reasons and other considerations of voters are not subject to evidence gathering, though we do know a lot about the voter, but not about their underlying voting logic; the rest we ascertain through conjecture. Parliament should never act on conjecture of course. This then leads to why 3. is No. Presumably you would hold the view that is irrelevant that a 52% vote within a turnout of 72% is less than 50% of the voting population (non-voters’ preferences cannot be assumed either way of course). Any state approaching such an important issue and this is surely one of them, would require a high hurdle rate to determine an outcome other than a simple majority, perhaps even to having compulsory voting given the magnitude of the consequences; the point is to avoid the effects of random voting behaviour within margins of error: this vote is within a margin of error of the total population and is unreliable on that basis. It is also not unreasonable to vote a second, third or fourth time for that matter (the US Congress revoted on bail-outs when they saw the consequences). We do extend in many areas the right to change minds (e.g. contracts) or two-step exit procedures (e.g. divorce). What bemuses me today is that everyone is acting as though an advisory referendum was actually an instruction, while a non-binding non-confidence vote on the current leader of the Labour party is ignored. Granted they are different, but they are built on the same psychological decision-making processes. Constitutional niceties aside, the referendum result is unreliable as evidence of anything other than random chance.

    • Mr B J Mann
      November 4, 2016

      What “margin of error”?!

      This wasn’t a poll of a thousand people to judge how the whole of the UK would vote:

      It was a poll of the entire electorate with a much higher than expected turnout!

      As for a high hurdle rate, yes, that should apply to a REMAIN vote only:

      A Remain vote is to remain in an ever closer union heading for total surrender of parliamentary sovereignty and breakup of the UK into EU regions.

      However a Leave vote is simply a confirmation that we reject parliaments attempts to bind it’s successors to complete and irrevocable surrender of sovereignty and only requires a simple majority of however many or few of the electorate voted, just as in a vote for a five yearly change in who wielded parliamentary sovereignty.

  6. Bruce
    June 29, 2016

    On the point of representative democracy and referenda, is it not a fault in the British system that many views aren’t represented in Parliament due to the first past the post system? It may be effective at keeping out extreme views, but it also means that millions of people nationwide can vote for a party that does not get a voice in Westminster. Perhaps if people felt represented, they wouldn’t demand as many referenda.

    • Excellent point and it must surely be illegal for Parliament to accept an “Advisory Referendum” as though it were a win or lose “Binary Referendum” – irrespective of what the Prime Minister has stated.

  7. Sorry,y, but I gave my “advice” to Parliament through an “advisory” referendum. If the Government intended a “binary” referendum, then that is what they had to present to the public. Since when did the “advice of the people” become “the will of the people”?

    The whole purpose behind the provision of an “advisory referendum” in law is to allow the public to express its “view” to Parliament and for that ADVISORY to be fully considered for a debate in Parliament that will allow vote on questions arising. To do other would be a criminal neglect of that advice to Parliament by the electorate and criminally neglectful of the demographic outcome.

    It is not a matter of sour grapes or denial of democracy, but contempt for the advice given by the electorate as a whole. There should be a legal challenge.

  8. Chris Jeyes
    June 29, 2016

    Somewhat surprised to see a post here which is devoid of any legal citations, and which does not address Parliamentary Sovereignty. Even more surprised to find a post apparently about legitimacy but which does not deal with what happens when a public vote is won by a bare majority on the basis of repeated use of misleading statistics, in the face of impartial but official warnings not to use such figures, and where the promises on which the vote was secured are withdrawn within hours of the result being announced.
    If lawyers were to make such confessions after a court victory we would expect (a) to be subject to disciplinary sanctions, and (b) for the result to be overturned immediately under the slip rule.
    It is not as clear as it might be anyway. Some of the Leave voters based their decision in part on wishing to be governed from Westminster rather than Brussels. It is not therefore in any way inconsistent with their decision for the ultimate Art.50 decision to be taken in Westminster rather than by direct dictatorship of the majority.

    • Tom Austin
      June 29, 2016

      Well said Chris.
      I’ve yet to see anybody provide substance for the believe that this referendum was to be anything other than ‘Advisory’.

      • Mike Tremblay
        June 30, 2016

        What exactly is the mandated legal process for acting on a referendum result; does anyone know? In my world, I’d look for a decision algorithm or flowchart, showing the required process and decision nodes, identifies how the evidence is provided and in what form and to whom plus the process followed by the recipient: what they do with it and how.

        While this post may be citation lite, it is not devoid of precision in addressing an issue of significant public interest and concern. If, as it appears, through carelessness, ignorance, fear or stupidity, a ‘bum’s rush” to the EU exit will ensue, this discussion needs to be given wider salience.

        It is possible to parse all this, to the benefit of CVs, but keep in mind what Mill said: “Bad men need nothing more to compass their ends, than that good men should look on and do nothing” (oft attributed to Edmund Burke).

    • Mr B J Mann
      November 4, 2016

      All of the Leave voters based their decision in part on wishing to RETURN to being governed from Westminster by MPs who support Parliamentary sovereignty rather than continue being governed by Brussels and it’s supporters currently in Westminster who insist on surrendering Parliamentary sovereignty..

  9. Adrian Carter
    June 29, 2016

    I should like to pick up one point in your argument, that a proposal to ignore or undo the vote is unjust. In my view, it is an error to conflate ignore and undo. I accept that to ignore the vote would be unjust. But in what sense would it be unjust to subject the 23 June vote to the test of a further referendum if material circumstances have changed by the point of implementation? In a situation where the terms of exit are unknown, how can the electorate be supposed to have given its informed consent to exit? The negotiation process for withdrawal provides an opportunity to test the various assertions made during the referendum campaign about the consequences of exit. If it was proper, as you argue, for Parliament to put the choice of stay or leave in a referendum, in what sense would it be improper to offer a choice between stay or leave on known terms at a later date? In what sense would it be unfair to the poor or elderly to offer a second referendum in which, on the basis of better information they would have the choice to stick by their earlier vote or to change it? Of course, there is the difficulty that it is ambiguous whether the Article 50 procedure offers any scope for withdrawal of notification before the 2 years are up or agreement is reached, but that is a separate question from the points you argue. There appears to be no legal impediment to offering a second referendum when terms are known since it is noteworthy that the EU Referendum Act 2015, unlike the EU Act 2011, did not prescribe mandatory implementation.

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  12. Rosemary Mulley
    June 29, 2016

    This is an oddly law-free legal article. The arguments are mainly political and flow from the author’s claim that Parliament provided that the referendum would “settle” the question of leave or remain. When and how did Parliament do that? When and how did Parliament limit its own sovereignty in this matter?

    • Angus Urquhart
      June 29, 2016

      Well said, Rosemary. I have just joined, hoping for some objective analysis of the issues. Reading Mr Ekins’ article, it would appear that I have made a mistake. For me, this is easily remedied: conclude, as you have done, that this is a legal-free article on the UK Constitutional Law Association website, hoping for more objective articles from other contributors. Unfortunately, for the nation of Great Britain and Northern Ireland, the concept of objective constitutional analysis appears moribund.

  13. Daniel Monks
    June 29, 2016

    There seem to me to be a large number of logical flaws in the argument presented here. First, if you believe Parliament had the sovereign authority to order a referendum, then you must accept that it has, ultimately, the sovereign authority to ignore it. Second, if you believe that the referendum is ultimately validated because of Parliament’s decision to hold a referendum then you should probably draw the inference from the fact that it did not explicitly make it binding that it did not intend to make it binding. Third, if you believe that Brexit has been ordained as inevitable by the result, you have repudiated parliamentary sovereignty as an idea and you should not cling to it as a legal figleaf to disguise an argument based on the sovereignty of the people. You should be honest about surrendering the concept, and not disingenuously pay lip service to it before demolishing it. That is a mere rhetorical trick. Fifth, you should at least be honest about the difference between irreversible and reversible decisions. If it had gone the other way, the Brexiteers would be arguing the case again, sooner rather than later, for another referendum. The remainers cannot, after the deed is done. This is not the original referendum – it is the second one. I voted to remain in 1975, and I feel cheated by the decision of Parliament to succumb to pressure to reverse that democratic decision in an illegitimate second referendum (or is there some principle of decay of referendum legitimacy that Ekins has not had space to enunciate). Sixth, you should accept that your argument inevitably leads to the conclusion that if Parliament ordains a further referendum and it goes to remain, that is as decisive as the first one.

    • WurzelWomble
      December 5, 2016

      I have the papers sent to every house from the 1970’s referendum. My parents retained them and passed them to me. They say there will be “no fundamental erosion of British sovereignty”, and that, in joining the Common Market, or European Economic Community (EEC), we would not lose sole rights in our fisheries – no-one else would come and take our fish. Since then it has changed its name twice, once to European Community, and then again to European Union, we have joined the European human rights convention,

  14. Jim South
    June 30, 2016

    Richard Ekins is not arguing about what can be done constitutionally. Rather, he is arguing about what should be done. Ultimately, if the government and Parliament fail to act in accordance with the referendum result, the voters will elect a government and Parliament that will do so. That harsh reality will be the key consideration for the major parties.

    • Daniel Monks
      June 30, 2016

      That is certainly the choice, although the proportion of remainers is clearly much higher than the proportion of voters who elected the present government. Clesrly political calculation will be fundamental, but the point is worth reiterating – an election choice is reversible. Brexit is not. Half the country may be disenfranchised. That is a profound democratic deficit.

      • Mr B J Mann
        November 4, 2016

        Surely the reverse is true:

        Remaining is irreversible (surrender of the vestiges of Sovereignty).

        Brexit does not surrender the right to reapply to join the EU.

    • Robmod
      July 3, 2016

      I simply don’t understand why an objective view of these matters should not conclude that the referendum result is at its most leave favoured interpretation an inconclusive mandate and at its least is no mandate at all being predicated on a 37.45% share of the total electorate, which does not include the voices of 16 and 17 year olds.

      The stark reality is that the likelihood of Art 50 being invoked in the next 18 months is minimal. Then it’s two years to leave. So, you want this referendum result to be determinative for an action that will take place no earlier than 42 months from now. As if you could know what the people would say about things then.

      • Mr B J Mann
        November 4, 2016

        If Remain is the logical choice, why do Remainers insist that illogical 16 and 17 year olds be allowed to affect the outcome?

        Now that the Referendum campaign is over, why aren’t the remain campaigners busy campaigning for 16 year olds to be allowed to buy booze, ciggies, top shelf mags and video nasties?! For them to be allowed to buy knives, and screwdrivers? For them to be allowed to buy those nursery safe kindergarten safety scissors rather than having to ask mummy to get them a pair?!

        Shouldn’t they be demanding that 16 year olds be allowed to not only drive, but supervise learners?! To not only buy fireworks, but airguns and real ones, and supervise children using them?!

        The fact that no Remainer is even suggesting any such thing tells us all we need to know about the “legality” of their case!

  15. Pingback: Theresa May: ‘Brexit means Brexit’

  16. Pingback: Richard Ekins: Can the courts block Brexit? | Judicial Power Project

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  18. Gladys Li
    July 2, 2016

    Being resident in Hong Kong, I may not have fully understood who had the right to vote in the referendum and who did not. But I question the ‘legitimacy’ of the result if there was no principled basis underlying the entitlement to vote and the way in which the constituencies were drawn.

    Was it nationals only? Apparently, not all expatriate nationals were entitled to register to vote. Did it include long-time residents in the UK who were non-nationals? Did it include citizens of dependent territories ( admittedly few ). Gibraltarians were allowed to vote but what about the Channel Islands and the Isle of Man inhabitants? All are likely to be substantially affected by Brexit.

    If MPs are to determine how to implement the result of the referendum, how are they to determine the will of their constituents when as I understand it the constituencies in the referendum were not the exact Parliamentary constituencies?

    And most important, the UK consists of England and Wales, Scotland and Ireland. If one counts Gibraltar, 3 out of the 5 territories voted to remain in the EU. Even if one disregards Gibraltar, there was no majority for the UK to exit the EU. So, where lies the legitimacy from the popular vote?

    • Tom Austin
      July 2, 2016

      “So, where lies the legitimacy from the popular vote?”
      [Warning! Beware of the bias.]
      The single biggest clue to the ‘legitimacy’ of the outcome, is that the case for ‘Leave’ and for ‘Remain’ were both stated by people who wished us to leave the EU.
      Both of the campaigns being fronted by well known faces of the Conservative Party.
      The votes for Remain came only from individuals who were motivated by concerns that were unexpressed during the so called ‘debate’.

      • Mr B J Mann
        November 4, 2016

        You didn’t need to include your warning.

        The then Prime Minister wanted to remain.

        All the parties except UKIP wanted to remain.

        Most MPs were Remainers.

        The government spent, was it, £9M on top of the legal Remain budget to argue for Remain.

        The new Prime Minister was a Remainer.

        Boris Johnson was undecided.

        The BBC (from whom, is it, 65% of the population gets their “news”, via TV, radio, or the internet) was very, very pro Remain.

        The EU, which channels enormous sums (of our money, after a big cut for themselves) into schools n ospitals, universities and public works, is obviously pro EU…….

        Or were you being “ironic”?!

        Incidentally, we keep hearing, from often tearful academics and researchers, usually doing cancer research or saving ickle baybees lives, how we’ll lose access to EU research funds and all their foreign brain surgeon colleagues will be kicked out of the country.

        Except that you don’t have to be in the EU to apply for EU research grants!

        And you don’t have to be in the EU to be in these “EU” academic exchange schemes!!!

  19. DR CHRIS HENTSCHEL
    July 2, 2016

    I am not able to comment on the British legal issues, but the logic in the piece is deeply flawed. Democracy is not the metrics observed in a vote or referendum, the latter is simply intended to indicate, as best as we can judge, the informed consent of the majority. If there are reasons to doubt that the majority still hold to a view at the time of the article 50 vote in the Commons this should inform the vote. In democracies that use referenda often the reversal of views is observed quite often. As a result referenda have to be quite frequent to be at all democratic in nature – the opposite of the expressed view. http://direct-democracy.geschichte-schweiz.ch/switzerlands-system-referendums.html

  20. Tim Taylor.
    July 2, 2016

    The circumstances surrounding the EU referendum are so bizarre, so chaotic and so impassioned that it is easy to overlook the fact that the UK’s withdrawal from the union would simply consist of two administrative acts performed by the government, acts that are subject to well-settled forms of legal analysis and legal evaluation. The government decides that the UK will withdraw from the EU; and the government notifies the European council of that intention. There is strong reason to believe that the government’s withdrawal decision would be unlawful, and hence that the notification would be invalid. The government acts in question are, as a matter of legal analysis, the exercise of legal powers. It is of the essence of legal powers that they have limits. The reason is that the exercise of a legal power alters the legal situation of anyone to whom that exercise applies. It may reduce their legal freedom, deprive them of rights, and impose new legal obligations. A legal power of a public authority, such as the government, may affect the legal situation of very many people. For this reason, the courts are particularly firm in keeping public authorities within the limits of their powers. UK withdrawal from the EU would affect the legal situation of every person in the UK, and the legal situation of many other people elsewhere.
    At the request of a person directly affected by the exercise of a power, a court may conduct a so-called judicial review to determine whether the exercise of a public power on a given occasion is, or is not, within the limits of the power. This applies to all public powers at all levels of government and administration.
    This activity of the courts is a product of centuries of constitutional struggle to control the temptation to absolutism of kings and, now, of the executive branch of government. The principle of the rule of law has become a fundamental principle of our constitution and of liberal democracy in general. All public power is subject to the law applied and enforced by the regular courts. Until 2015, the lord chancellor, as head of the judiciary, was the ultimate guardian of the rule of law. Then a lord chancellor was appointed who was not a judge but a government minister.
    As the powers of public authorities have increased massively in volume over the last hundred years, the law of judicial review has developed to a corresponding extent. There are thousands of decided cases and whole libraries of commentaries. As a branch of law it is dense and subtle and controversial – especially when it involves undoing the work of an elected body; and controversial within a never-ending debate about how vigorous the courts should be.
    So that they are not themselves seen as arbitrary, the courts are constantly developing and refining general principles of judicial review. In the light of the current state of those principles, two elements of the government’s decision-making in relation to withdrawal from the EU seem to be worthy of judicial review.

    First, the original motivation for the holding of a referendum seems not to have been the public interest, but the particular interest of a political party. The referendum was called by Conservative Prime Minister David Cameron to placate the Eurosceptic wing of his own party and stop the UK Independence Party (UKIP) from gaining further ground at Tory expense.

    Especially in cases relating to local authorities, the allegation of a corrupt abuse of a public power is familiar – for example, a planning decision favouring a friend of the chairman of the planning committee. It would be bold to extrapolate such a case to the level of national government. But it is worth noting that it would be a challenge not to the Referendum Act of Parliament – challenging the validity of an act of parliament would raise formidable problems of general constitutional law – but to the actions of the government in the process leading up to that legislation.

    Secondly, the courts, in countless cases, have entered into consideration of the substance of public decisions. They do not aim to second-guess the policy embodied in the decision. But they can take the view that the very substance of the decision is flawed in some fundamental way that takes it beyond the outer limits of the power. They have devoted much effort to finding general formulas for justifying this extreme step, reflecting again their crucial concern that they themselves must not seem to be acting arbitrarily.
    In the light of the current law, it is possible that a court might take the view that it is arbitrary and unreasonable and disproportionate, in the legal sense of those words, to base the vastly important decision to withdraw from the EU on the opinion expressed by a bare majority of people taking part in a referendum provided for in an act of parliament – but an act of parliament that makes no provision for the legal effect of that referendum – thereby ignoring the opinion expressed by a very large minority. Governments are governments of the whole nation, not of a favourable constituency.In the matter of withdrawal from membership of the EU, the government is not acting under its “prerogative power” in the field of foreign relations – an inherited power of the crown that needs no legislative basis. It is using the powers contained in article 50 of the treaty on European Union, which is part of UK law through the European Communities Act 1972. Article 50 explicitly leaves the legality of a withdrawal decision to national law. An unlawful decision under UK law would be invalid for the purposes of article 50.
    The legality of the proposed government acts is open to serious question, a question that can only be finally answered in the courts.

    • Mike Tremblay PhD
      July 3, 2016

      This is a particularly insightful comment, that gets underneath the legal issues to the fundamentals. At root, can the referendum legitimate a net diminution of rights and liberties currently enjoyed by people in the UK as a result of membership in the EU?

      I would have thought that losing rights would be subject to considerable democratic challenge. While the Leave campaign said that people would have more sovereignty (whatever that means), it appears we’ll have fewer rights (which as a metric would say there would be less sovereignty).

      Unlike general elections, where the consequences of bad choices can be undone (eventually), poor leaders turfed out and parties held to account, the situation we are in does not offer any checks and balances against all the evils of haste.

      The broad citizenry now know what the real world consequences are of the referendum result, while the Brexit lot have largely fled the stage.

      We may find comfort that Shakespeare foretold this in “the Merchant of Venice”. In one place referring to the Brexit campaign, Shakespeare wrote “You speak an infinite deal of nothing”, while in another he addresses quite bluntly the current real world, “All that glitters is not gold; Often have you heard that told: Many a man his life hath sold But my outside to behold: Gilded tombs do worms enfold.”

      Welcome to the tomb.

    • Laurens
      July 6, 2016

      The Government has a domestic statutory power to exercise the Article 50 power contained in the Treaty of Lisbon and deprive the UK population of their rights under that Act under the European Communities Act 1972 (as amended by the European Union (Amendment) Act 2008). This is surely a necessary implication of the Act if Parliament has not otherwise specifically provided an alternative process. It is no different to a power contained in an Act allowing a minister to repeal the Act itself. The legality of the power is beyond question. The legality of the referendum is beyond question. Parliament could chose to legislate to require the power only be exercised with its consent. But it has not done so.

      Foreign Policy is the domain of the Crown and not Parliament unless and until Parliament so legislates. As noted in ex p. Hammersmith and Fulham and R (Bancoult), the only grounds of review of core central government functions like spending decisions and foreign policy are bad faith and corruption (not in the use of the power if reflecting the will of the people), unreasonableness bordering on insanity (it may be unwise but certainly not insane), improper purpose and irrelevant considerations (which as a statutory referendum, the referendum itself cannot be, even if the authorising Act was procured in bad faith (Pickin v BRB). Foreign, Security and economic policy are not improper proposes in this regard (Cornerhouse v DSFO).

      For judges to judicially review the use of Article 50 would be for them to severely overstep their constitutional role and substitute democracy for the rule of judges. If parliament wants a say then it should block the use of Article 50. But until that time, the decision to use the power given to the government is absolutely legal.

      • Annette Holden
        July 18, 2016

        Don’t you have a constitution that protects all UK citizens and gives all UK citizens the same right to vote? My British husband has lived out of the UK for more than 15 years and was excluded from the referendum. This is the opposite of democratic.

    • Mr B J Mann
      November 4, 2016

      Are you arguing from the standpoint of the Common Law and British Constitutions as they used to be?

      Or as they have been adapted to suit EU and Civil Law conventions since Parliament illegally permanently surrendered Sovereignty to the EU and tried to give themselves legitimacy with a referendum where they hid the inevitable unacceptable surrender of Sovereignty, despite Heath having received a report as long ago as 1960 (and another in 1970) that made clear that if the public were to find out how great the surrender of Sovereignty would be they would never accept it!

  21. Robmod
    July 2, 2016

    If the case for referenda “is strongest when the decision is practically irreversible”, then arguably, the case is similarly at its strongest at this point for the use of thresholds and not bare simple majorities – thresholds such as a 55% majority, a 66% majority or 40% of the electorate are examples, all of which would have resulted in ‘leave’ failing.

    It’s hardly uncommon:

    Stephen Fisher and Alan Renwick collected data on 250 national referendums held since 1990 and found that a vote against the status quo and in favour of change has won a majority in 69 per cent of them – yet only 40 per cent actually passed due to threshold requirements.

    https://constitution-unit.com/2016/06/22/do-people-tend-to-vote-against-change-in-referendums/#more-5130

    I hardly see that one can derive from the country a democratic mandate for change in this case. 37.45% of the electorate voted for ‘leave’, nearly 13 million did not vote and 16 and 17 year olds were not included. They should have been. Even if the government triggered Art 50 today (which it won’t), this group would all pass 18 before we left the EU. They were included in the Scottish Independence vote, but not this one. How random! Furthermore, the relatively low turnout amongst 18-24 year olds (the group with the highest % of ‘Remain’ votes) is probably explained by registration issues. More research on this data blip should be commissioned urgently.

    Now that the stakes are known, now that some of the actual realities of what leaving the EU would entail – we will still pay our fee in order to trade with the single market and there will be no concession on the free movement of people – I would bet my house and yours that if the referendum were run again, ‘Remain’ would win decisively. If we allow 16 and 17 year olds to vote and ensure that every age group has all the practical impediments in the way of their voting removed, then the vote for ‘Remain’ would be a landslide. And that is still with the current no-threshold arrangement for a ‘leave’ vote.

    But don’t take my word for it: Let’s test it! What could possibly be an objection? There are special reasons to do it in this case.

    The arrangements for the first one were botched!

    • Mr B J Mann
      November 16, 2016

      Yes, but a vote for Remaining is a vote for irreversible ever closer union and irreversible loss of the vestiges of Sovereignty.

      So, yes, leave should require a 55%, 60%, 66%, 75%, maybe even 95% or 100% Leave vote.

      However a vote to leave is a reversible vote to take back our Sovereignty, and so only requires a 50% plus one single vote majority!

  22. Verena Charvet
    July 3, 2016

    I came to this site to see what ‘constitutional’ experts advise in the light of the referendum outcome.
    I think that the following points are being made:
    1. The referendum was advisory – but a lot of citizens (including MPs) do not realise this.
    2. A large number of those affected were disenfranchised – they had no vote.
    3. The UK has many disaffected/marginalised citizens who believe they do not benefit from membership of the EU – despite all the advantages that non-political experts identified.
    4. A number of patent and latent misstatements were knowingly made by both sides – the voters were not told the truth about many critical matters.
    There seems to be little legal analysis of what the impact of the above points is. Nor are there any legal precedents/law cited.
    This leads to some questions:
    A. Is the vote legal?
    B. If it is, as it is only ‘advisory’ why do all citizens not know this and know that other factors might prevent it being implemented? Also as there is a long process why was that not explained?
    C. If it is not, e.g. because both sides made demonstrably incorrect misstatements on which voters relied, why are constitutional authorities not saying so? (If this vote had happened almost anywhere else in the world there would be massive calls for a new referendum.)
    I would welcome further clarification, if that is possible without entering into the rights and wrongs of either side’s views.

    • Tom Austin
      July 3, 2016

      If you have the time Verena you could do worse than view the article and responses under the link below, where I (as Oudeis1) and others have expanded upon the matters that are of concern to you – and us all…
      https://www.theguardian.com/commentisfree/2016/jul/03/referendum-vote-leave-labour-people-have-spoken#comment-78082246

      In the meantime I join you in eager anticipation of the responses you get here.

    • Mike Tremblay PhD
      July 3, 2016

      Just to add

      When Cameron resigned, all he said was “their will must be respected”.”the will of the people is a decision…” and in Parliament, broadly the same things.

      But does he even have the authority to say what little he said and commit the country to the process that is now underway? Seems an abuse of democratic process.

      If the result of the referendum is a “decision” it fails the decision duck-test for me.

      • Tom Austin
        July 3, 2016

        Yes Mike, I thought ‘proclamations’ went out of fashion years ago. I strongly suspect, given that this whole thing is about getting and keeping power for the Conservative Party, that the result mattered not at all to ‘Dave’, just as long as UKIP are out of the picture.
        “What a way to run a railroad?!” As John Wayne might have said.

      • Mike Tremblay PhD
        July 3, 2016

        Segolene Royal, recently interviewed on HardTalk, said the referendum was the Tories holding the electorate hostage. She was impressive in her views with strong criticism of Cameron. But were all this a railroad, at least you’d know where you were going.

        I guess we’ll now have to see if we end up with “May-hem”, “May-day” or “May-be”. The alternatives are unbearable.

  23. Pingback: Roger Masterman and Colin Murray: A House of Cards? | UK Constitutional Law Association

  24. Pingback: Patrick O’Brien: The Democratic Legitimacy of Changing Your Mind: A Response to Richard Ekins | UK Constitutional Law Association

  25. Gerard Van Geleuken
    July 5, 2016

    “It was quite proper for Parliament to put the question of whether the UK should remain a member of the EU to the British people for decision by way of a referendum.”

    But did it?

    The Parliamentary Voting System and Constituencies Act 2011 contained a chapter on “Results of the referendum – commencement or repeal of amending provisions”, which clearly stated that the proposed changes would become law if a majority voted in favour.
    But there’s nothing like that in the EU Referendum Act, from which we can reasonably conclude that in this case Parliament had no intention of abdicating its powers, and that the referendum was consultative/advisory only.

  26. Gerard Van Geleuken
    July 5, 2016

    The Parliamentary Voting System and Constituencies Act 2011 contained a chapter on “Results of the referendum – commencement or repeal of amending provisions”, which clearly stated that the proposed changes would become law if a majority voted in favour.
    But there’s nothing like that in the EU Referendum Act. From which it can reasonably be inferred that in this case Parliament had no intention of abdicating its powers, and that the referendum was consultative/advisory only.

  27. Pingback: Mike Gordon: Brexit: The Constitutional Necessity of an Early General Election | UK Constitutional Law Association

  28. Rod Nelson
    July 6, 2016

    Richard Ekins analysis appears to neglect a simple problem with referendums in the UK. Under a newspaper industry substantially owned or controlled by Rupert Murdoch and Paul Dacre, a poisonous brew of Brexit propaganda was daily plied to the majority of the population. When this propaganda barrage combined with the ‘industrial scale’ of lies from the Leave campaign, the result that ensued was almost a foregone conclusion.
    One can be as legally astute and wise as maybe, and probably Richard Ekins is – I am too ignorant to judge – but once you overlook the power of the press, you do not come to the correct conclusions in reality.
    Rod Nelson

    • Mr B J Mann
      November 4, 2016

      Rod Nelson’s analysis appears to neglect a simple problem with referendums in the UK. Under a “news” industry substantially owned or controlled by the BBC, from whom, is it, 65% of the population get their “news” (and views!) via TV, radio, and their extensive Internet presence, plus the pro Remain Sky “news”, plus the rabidly pro EU Ch4 “news”, a poisonous brew of anti-Brexit propaganda was daily plied to the majority of the population. When this propaganda barrage combined with the ‘industrial scale’ of lies from the Remin campaign, the result that ensued was almost a foregone conclusion.

      But the majority saw through the propaganda.

  29. Pingback: A constitutional coup?  It can be stopped. – CES Ltd

  30. Tom Austin
    July 7, 2016

    InFacts, has offered up this…
    “Second referendum probably legally required
    by Pavlos Eleftheriadis | 06.07.2016”

    http://infacts.org/second-referendum-probably-legally-required/

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  33. A.Brown
    July 9, 2016

    Many people voted the way they purely because of its ADVISORY status, it being used by some as protest vote.Additionally some people did not vote at all because of its non-mandatory status, which the referendum could have been.These voters could quite legitimately taken the view that their MP was a remain supporter and therefore will be expecting him/her to vote in the way he said he/she would during the general election.

    Many overseas voters did not get the ballot papers and are disenfrancised.
    Due to floods many voters where unable to attend due to the disruption.
    Many university students had gone home,they being registered in the university city/town and therefore logistically disenfranchised

  34. Pingback: Brexit Basics 2: update 2nd July | Law & Religion UK

  35. Pingback: An analysis of the EU law questions surrounding Article 50 TEU: Part Two | eutopialaw

  36. Pingback: Josehp Crampin, A Referendum with no Legal Effect? | UCL UCL Journal of Law and Jurisprudence Blog

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  39. Sean Feeney
    October 14, 2016

    All this blindingly obvious argument lacks is reference to the constitutional principles of legitimacy and comity (for those enfranchised by the 2015 Act) and a reference to legal authority of potentially very high relevance to statutory construction of the 2015 Act, namely Pepper v Hart [1993] AC 593, and reference to Hansard passages where Government proposers of the Bill stated the intended purpose was to provide for a “decision”

    The potential relevance of this very well-known authority is increased by the fact that the defendant’s skeleton argument, published after this blog post, quotes from Hansard, giving clear statements from Government proposers that the intention of the Bill was to provide for a “decision”; and by the fact that the contention that the referendum was “advisory” is in issue in the proceedings.

    Other litigation parties rely on Parliamentary materials such as a Commons Briefing Paper and a report of the House of Lord’s Constitutional Committee to evidence their submission that the referendum was “advisory”.

    The Pepper v Hart test on admissibility was applied,by the Supreme Court, and therefore reaffirmed, in Assange (Appellant)

  40. Tony Welsh
    November 15, 2016

    MPs have a duty to represent the best interests of all their constituents, including the 72% who did not vote to leave and including those who did not vote at all, many of whom did not do so because they were children.

    The referendum question is also not clear as to what sort of exit is desired and so is hardly a mandate for any particular course of action. Recent polls have shown that a clear majority even of leavers would not make even the smallest personal financial sacrifice in order to leave the EU.

    Another reason to err on the side of caution — given that the vote was close and that several clearly identifiable constituents like Scotland voted to stay — is that leaving would be irreversible, where remaining by definition is not.

    • Tom Austin
      November 16, 2016

      Is it not more sensible, and more true, to assert that the duty of every MP is to the well-being of the UK as a whole?
      Each MP with a cosily-remain constituency that ‘stands-up’ for Remain, gives licence to all others who feel less cosy:At one and the same time backing & thwarting the wishes of their constituents?
      How often can our Parliamentary Democracy abrogate its responsibility before we lose all claim to be any sort of Democracy?
      You are correct:Remain is the only sensible option.

      And, its not as if time is not a factor in all of this.

      • Roger
        November 16, 2016

        “The only sensible option ..,… Remain …”. I beg to differ.

        Haven’t you noticed the EU is imploding due to its inability to listen to its people and make changes? It’s structure is undemocratic, it’s governance unwieldy, unresponsive, inflexible, inefficient and its basic philosophy of taking over/speaking for 27/28 nation states is impossible, as shown regarding immigration and maintaining the integrity of its borders.

      • Tom Austin
        November 16, 2016

        Are we all Nelson’s now? That we reach for the telescope, because we refuse to see what is right in front of us?
        While it may be entirely human to cling to lies, because we see an advantage in so doing, it is not reasonable to do this and know that tomorrow the next lie may not be to our liking.
        They do say that you can fool all the people some of the time, where is Plan B: Now that too much of ‘that’ time has passed?

    • Mr B J Mann
      November 16, 2016

      Isn’t it funny how the “Democrats” are now arguing that the Electoral College “constituency” vote, which they expected to win overwhelmingly, should be ignored because they might have won about a million (out of hundreds, not just tens, of millions of voters, and ignoring all the Trump supporters in ‘safe seat” states that didn’t bother to vote) more votes in the US Presidential Elections.

      Sorry, but the EU Referendum vote was a nationwide popular vote. The fact that little scotland, tiny Northern Ireland, and miniscule Gibraltar, voted remain is irrelevant: we weren’t voting in “country” based constituencies!

      And Parliament currently ISN’T Sovereign: it gave it’s sovereignty away, illegally, decades ago, along with the primacy of the Common Law.

      The Government sent out a leaflet to every voter saying that Leaving would be disastrous, but if the people voted to leave the government would implement leave.

      Parliament was told, by the Minister introducing the Referendum Bill, that if the people voted to leave the government would implement leave, and Parliament voted overwhelmingly to pass the Bill into LAW.

      Regardless of whether this was explicitly mentioned in the wording of the Act, under EU style European interpretation rules (and until we leave we are in the EU and Parliament is NOT Sovereign) judges should look at the intention, and not the wording, of laws.

      And the majority, mainly the older, now wiser, members of the electorate, who had seen how we were conned into joining the Common Market, and how it was inexorably and IRREVERSIBLY, moving to a failed superstate, have voted to take our Sovereignty back, regardless of short term personal cost to ourselves, because we more more concerned about our as yet unborn grand children, and our spoilt and foolish children, and even our contemporaries who never grew up.

      So if you can actually link to your pollls, it makes no difference, in the only poll that counts the vote was Leave.

      And Leave means Leave.

      Which bit of that do people struggle with?!

  41. Nunn The Wiser
    November 24, 2016

    Mr B J Mann: “Regardless of whether this was explicitly mentioned in the wording of the Act…”

    What? You mean somebody just mentions in passing (“Parliament was told”) that the Referendum vote is binding and that this statement then becomes law – even if it isn’t explicitly mentioned (and voted on) in the wording of the Act?

    On this basis I think your request that judges should look at “the intention and not the wording” of laws requires that they be present at every Parliamentary utterance related to that law, remembers each and every one of them, their meanings and their interpretations, and then takes them fully into account when reaching a decision.

    I’m sure others will have very firm views on whether that is workable or not.

    • Mr B J Mann
      November 29, 2016

      Could have sworn I’d answered this?!?!

      No, there’s something called “Hansard” in which the proceedings of of Parliament are recorded.

      As with any other case, all the judges in the land don’t need to attend every minute of both House’s proceedings:

      They just need to refer to Hansard for the relevant discussions pertaining to the case they are sitting on.

  42. Gerard Van Geleuken
    November 25, 2016

    Even that great political sage Nigel Farage has in the meantime admitted that the referendum was advisory only (Andrew Marr show on 5 Nov.). Therefore, the final decision to go ahead with Brexit rests with Parliament (as the Supreme Court will shortly confirm). In the absence of any compelling legal/constitutional reason to do so, the argument now is that Parliament has no choice because Brexit is “the will of the people”. But that argument is eroding very fast, as recent surveys show that support for Brexit is dwindling. The Bertelsmann Foundation for example has found that 56% of British respondents would now prefer to stay in the EU, all things considered.
    To be sure the credibility of surveys and polls has been undermined by recent events, but the same Bertelsmann survey held shortly before te referendum put support for “remain” at 49%, which was pretty much spot on.
    So what will happen if by March it is established that a solid majority, say 60%, would prefer to forget about the whole thing? The government should barge on regardless?

    • Mr B J Mann
      November 29, 2016

      Strange, a poll in the Mirror today has 46% would vote Remain and 47% would vote Leave.

      More significantly, while 3% of those that would vote Remain were former Leave voters:

      FOUR percent of those that would vote LEAVE now were former Remain voters!!!

      And I thought the Mirror were Rabid Remainers?!?!?!

      • Nunn The Wiser
        November 30, 2016

        You said: “The Bill was introduced by the Minister responsible as being for the purpose of determining the public’s advise, WHICH THE GOVERNMENT *WOULD* FOLLOW!”

        I’ve read David Davis’s Commons statement in Hansard, wherein he announced that the Government “told” voters:

        “This is your decision. The government will implement what you decide”.

        At no point did he say that this specific point was voted on and endorsed by Parliament as being part of the wording specifically to be included in the E.U. Referendum Bill. The Government merely “told” people after the Bill’s wording had been approved. And if it ain’t in the Bill it ain’t worth the paper it’s written on (just like the Tory pre-Referendum lies).

        You then say:”The word “instruction” might apparently be absent from the Bill itself”

        Do you imagine such an “apparent” omission entitles the Government to say and do what it wants regardless of the actual wording in the Bill?

        Do you really believe everything you read in the Beano?

        And you’re trying to convince me that there’s no “malice aforethought”!

  43. Al Craig
    November 27, 2016

    Facts: non-bind referendum Ch. 5 MPs’ Briefing Paper 07212: majority < 1m (17,140mv16,141m); 37% of eligible voters & 28% of population; excluding 2.9m EU nationals resident within UK, 800k lost from roll (mostly students no longer able to register at place of education, 16-17yr olds who had voted in Scotland on basis that remaining in UK guaranteed EU membership; and ignoring majorities in constituent countries of the UK Scot/NI and of its capital.

    EU citizenship has essentially been stripped from individuals by a small majority in the referendum but on the face of it a substantial minority of the population on a multi-faceted issue masquerading as a binary choice on highly misleading information to the detriment of UK and EU citizens and future generations.

  44. Nunn The Wiser
    November 28, 2016

    Question: What sleight of hand did Tory pro-Brexiteers use to persuade Parliament to approve a Referendum proposal in which “the will of the people” would be sovereign?

    The fact that this very same (“sovereign”) point appears to be the argument that May & Co will be basing their forthcoming High Court appeal case on – despite the word “instruction” apparently being absent from the Bill itself – suggests that there has been some kind of “malice aforethought” behind its proposal and inclusion in the Referendum Bill voted on by Parliament. The oft-quoted line given is that “this (sovereign method) at last gives the people an opportunity to be heard which they have previously been denied”. How thoughtful, considerate and generous! ( – and helpful to the Tories!)

    No other steps were taken in advance of the Referendum vote to ensure that any minimum requirements should be met: that a minimum number of votes should be cast; that a minimum percentage majority vote should be obtained; that an official Government mandate should be provided; that the Government should take action to prevent any of its members (Gove and Johnson) from deliberately misrepresenting waffle, hyperbole and known lies as facts to garner votes as if they were representing the Government, when in fact they were acting purely as leaders of a separate and opposing campaign group which was totally without accountability; that 16-17 year-olds would be allowed to vote – as they were in the Scottish Referendum; that the Government wouldn’t appallingly – one could say deliberately – mismanage the Remain campaign so badly that many voters would be turned against it;

    So why then the need for the unnecessary “sovereign will of the people” legislation? Was it simply so that the Tory Party could deflect the blame if the Referendum all went horribly “wrong”?
    Or was something more devious in play?

    Cameron and May knew that if Parliament was given a sovereign vote it would not endorse a Brexit result. The House of Lords would also stand in the way of a Brexit vote. The only way a Prime Minister could be sure of triggering Article 50 was if he / she already had a “sovereign will of the people” mandate to leave the E.U.
    A wafer-thin majority (37.45% of the “sovereign” electorate) voted for Brexit! That was all that was needed!

    Immediately after the Referendum, May, (supposedly a pro-Remainer), single-handedly tried to trigger Article 50 without the consent of Parliament – and now you start to see two seemingly separate issues brewing into one schematic event.

    Coincidence? Not if the Tories are involved!

    Now the Tories could claim that “sadly, against our express pro-Remain wishes the sovereign electorate has delivered the “wrong” result”. Rubbish! This was exactly the RIGHT result for the Tories! A pro-Brexit majority gave them permission to seize their primary objective – to Take Back Control.

    Suddenly “We accept the “clear decision” of the E.U. Referendum” becomes the new mantra! Fiercely pro-Remainers of all parties overnight became meek, accepting pro-Leavers, not thinking for one moment that they have been duped by a clever piece of opportunism devised by some of the Tories’ more notorious adherents far more familiar with the devious workings of the strategic Dark Arts than any mere Parliamentarians could ever be.

    Cameron then legitimately sloped-off early to his mansion in the shires – as he had always intended – whilst his carefully selected (and unopposed) replacement dutifully embarked on the process of getting the U.K. out of the E.U. – preferably as, when, and how she chose to do – i.e. immediately.

    The one thing the Tories hadn’t taken into account (and couldn’t control) was the unanimous voice of the independent judiciary, who unexpectedly upheld the sovereign right of Parliament over that of the recently-ordained sovereign people. And we have all seen what the Tory right-wing press have made of that inconvenience!

    If Theresa May fails to win her next argument with the judiciary it will take more than a return journey from the furthermost depths of the Department of The Dark Arts, armed with another piece of “sovereignty”-like skulduggery, for her to trigger Article 50. Perhaps a little witchcraft – or even sorcery – would be in order?

    Whatever, Tony Blair is right to oppose a Brexit which was achieved based on lies, deception and manipulation.

    • Mr B J Mann
      November 29, 2016

      The word “instruction” might apparently be absent from the Bill itself – but we are still in the EU, subject to EU laws and procedures, and is it not now the norm to look at the INTENT, as per European Law, and not the letter of the law as was the norm under Common law?

      The Bill was introduced by the Minister responsible as being for the purpose of determining the public’s advise, WHICH THE GOVERNMENT *WOULD* FOLLOW!

      And it was passed with an overwhelming majority.

      And the official literature clearly confirmed this.

      And as judges have apparently reversed previous rulings on the government being entitled to rely on the Royal Prerogative to action EU law which deprived people of their rights, THAT suggests that there has been some kind of “malice aforethought” behind the protesters case and the judges ruling.

  45. Nunn The Wiser
    November 30, 2016

    Mr B J Mann, I’ve read Hansard too.

    David Davis says that Parliament was “told” that the Referendum vote was a “decision”. The electorate was “told” in leaflets and pamphlets prior to the vote itself that the Referendum vote was a “decision”. A lot of things were said (“told”) – both before and after the Referendum vote – that were quickly and quietly abandoned; (does “350 million pounds a week to fund the N.H.S.” sound familiar?)

    The wording of the E.U. Referendum Bill that was voted on and approved by Parliament does NOT give consent to “the will of the people”, nor does it mention that it is agreed that the electorate’s Referendum vote would be a “decision” that would be enacted by Parliament. That is the Bill that David Davis refers to and which is the basis upon which the Referendum vote was carried-out.

    It is not the unquestionable right of the Tories to re-interpret that wording to suit its own ends. That is why there was a unanimous rejection in the High Court of Theresa May’s imbecilic attempts to thwart the Parliamentary-approved wording of the Referendum Bill.

    But you and the Tories can’t accept that! The case moves on to the Supreme Court.

    And, in true Tory fashion, you now claim that – irrespective of there being clear and unambiguous wording in the Bill – this wording should be ignored in favour of interpreting the INTENT of the Bill!

    Some would say that, far from accepting the judicial (and independent) result, which you patently don’t like, you and the Tories are attempting to keep re-asking the question until you get the result you do like!

    Sound familiar?

    • Mr B J Mann
      December 1, 2016

      If you’ve not found it yet I’ve borrowed this from another forum:

      Lawyers for Britain have for a long time been pointing out that:

      The Foreign Secretary [Philip Hammond] opened the second reading debate (Hansard) on the Referendum Bill on 9 June 2015 [Column 1047] with:

      “This is a simple, but vital, piece of legislation. It has one clear purpose: to deliver on our promise to give the British people *the final say* on our EU membership in an in/out referendum by the end of 2017.” (emphasis added)

      And concluded the opening speech with:

      [9 Jun 2015 : Column 1056……]

      “But whether we favour Britain being in or out, we surely should all be able to agree on the simple principle that *the decision about our membership should be taken by the British people*, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; *not even by Government Ministers or parliamentarians in this Chamber*. The decision must be for the common sense of the British people. That is what we pledged, and that is what we have a mandate to deliver. For too long, the people of Britain have been denied their say. For too long, powers have been handed to Brussels over their heads. For too long, their voice on Europe has not been heard. This Bill puts that right. It delivers the simple in/out referendum that we promised, and I commend it to the House.”

      I found, and find significant, the response by arch Remainer:

      1.15 pm

      Hilary Benn (Leeds Central) (Lab): This Bill will set *before the British people* a clear and simple question: should the United Kingdom remain a member of the European Union? It is 11 words, but the answer will have profound consequences for the future of our country, *as the people of the United Kingdom make the* most important ***decision*** on our place in the world for 40 years. It is a ***decision*** that will affect the future journey of our proud and great islands; it is a ***decision*** the consequence of which will be felt by the people of our country for decades and generations to come; and it is a ***decision*** that will shape not only how we view our place in the world but how the rest of the world sees us.

      Incidentally, on the same day Hammond gave the following parliamentary answer:

      14. Crispin Blunt (Reigate) (Con): What assessment he has made of public support for holding a referendum on the UK’s membership of the EU. [900188]

      The Secretary of State for Foreign and Commonwealth Affairs (Mr Philip Hammond): As it happens, I have made an assessment of public support for holding a referendum on the UK’s membership of the EU. The only recent poll that actually matters delivered a clear mandate for the only party that offered a credible commitment to hold such a referendum.

      Which was commonly known and referred to, including by the media, and the rest of the “liberal” left, as an “In/Out Referendum”, NOT as an “In If The People Advise It, Still In If The People Advise Out Referendum”!

      Now, which bit of any of that was in any way unclear?

      Oh, and just for the record:

      9 Jun 2015 : Column 1156
      7.36 pm………

      The House having divided:

      Ayes 544, Noes 53. – Basically the SNP!

      How much bigger a (not while in the EU) “Sovereign” parliamentary vote does it need?!

      PS Don’t confuse the vote with the earlier, smaller one on an amendment!

      • Nunn The Wiser
        December 4, 2016

        As I made perfectly clear to you earlier, the innocuous Tory-promoted vote in Parliament for the Referendum to be a “will of the people” vote was a set-up that was put in place when there was no hope of a “Leave” vote winning. Remember those days?

        Once this supposedly-irrelevant piece of legislation was safely installed, the Tory government went out of its way to run a disgusting, lie-based Referendum campaign that would turn a huge number of voters away from staying in the E.U. Remember Boris Johnson and Michael Gove and their derisive campaigning? They were actually Tory M.P.’s you know! AND without any responsibility for one word or promise that they uttered. They could – and did – say what they liked, happily allowing the public to believe these were Government promises they were being fed.

        And lo! The impossible somehow happened!

        What a coincidence!

        Just when a “decisive” piece of Tory legislation was lying around just waiting to be picked-up and run with by the ever-so-staunch Remainer, Theresa May, who just couldn’t wait to turn tables and embrace this “will of the people” vote by attempting to trigger Article 50 with the utmost indecent haste.

        Unfortunately, the independent Judiciary, when asked, just happened to notice that Parliament had NO RIGHT WHATSOEVER to give such a vital vote over to “the will of the people” and at a stroke the Tories’ brilliant and mischievous master plan was suddenly – and legally – holed beneath the waterline.

        What part of that don’t YOU understand?

      • Mr B J Mann
        December 5, 2016

        So your main argument is that the Tory party didn’t expect Leave to win, and so the overwhelming Parliamentary vote to hand over to the people the DECISION on whether to leave, with an overwhelming Parliamentary acceptance that the Government would action the will of the people, doesn’t really count.

        And your subsidiary argument is that the Government, which you say didn’t expect Leave to win, and boosted the allowable Remain campaign spending by an additional £9 million on pro Remain propaganda, (and got companies with, or hoping for, big government contracts to back Remain and demonise leave) secretly ran a campaign of lies to turn voters off the EU.

        And talking of lies how many times is it you’ve made that allegation?

        I could have sworn I’d posted a long list of Remain lies to counter your allegations!

        Where has that got to?!

        But, to summarise, your case is that Parliament’s decision to let the public decide doesn’t count because they made the wrong decision.

        And that the judges were right to say that Parliament should be allowed to change its decision because it made the wrong decision?!

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This entry was posted on June 29, 2016 by in European Union, UK Parliament and tagged , , .
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