Constitutional Law Group July 5, 2016 Europe, European Union, UK Parliament

Yossi Nehushtan: Why the EU Referendum’s Result Is not Morally-Politically Binding

Thus far, while the UK is trying to comprehend the EU referendum’s result, there seems to be a consensus according to which even though the referendum is merely advisory, it would be morally and politically wrong for Parliament to refuse following the ‘leave’ result. Here I wish to challenge this consensus.

The difference between ‘legally binding’ and ‘morally-politically’ binding

As a matter of law, the referendum’s result is not legally binding. This is important because most of the post-referendum discussion fails to understand the exact nature of the difference between norms which are legally binding and those which are morally-politically binding. When Parliament decided that the result would not be legally binding – Parliament must have assumed that there can be circumstances in which the result will not be morally and politically binding. If Parliament thought that the result should be followed no matter what, or that the result should be perceived as binding regardless of the circumstances, Parliament would have decided that the result is legally binding. Parliament chose not to do that. Therefore, the starting point must be that in principle, there can be a case in which the referendum’s result does not impose a moral and political duty on Parliament to follow it.

Norms are legally binding if they are created according to an agreed ‘manner and form’ (e.g. Act of Parliament and a Royal consent) – and regardless of their content and the quality of the decision-making or the law-making process. Also, the legal authoritative power of legal norms is not a matter of degree. They are simply legally authoritative. Moral and political norms, however, are completely different creatures. Their moral and political authoritative power is a matter of degree. They can be more or less authoritative and they can impose weaker or stronger moral and political duties. Their moral-political authoritative power depends on various and changeable circumstances. In our case, the moral-political authoritative power of the referendum is not a given. It can’t be assumed. It should be justified. The referendum’s result can’t be politically and morally binding in and of itself.

A quick review of the relevant circumstances will reveal the reasons for perceiving the specific result of this specific referendum as not morally and politically authoritative. These reasons are the narrow margin; the turnout; the subject-matter; the quality of the public debate; and the age issue.

The narrow margin

‘The people’ voted ‘leave’ by a very narrow margin of 52% against 48%. If the result was legally binding, the margin would have been irrelevant. The ‘majority rule’, as legal rule, is blind to the margin issue. But since the result is not legally binding, it is quite obvious that its moral-political strength does depend on the numbers. The people may have spoken, but their voice was not strikingly decisive. When the result is not legally binding, the weight that should be accorded to it varies. Weightier moral reasons should be provided for refusing to follow the will of a vast majority than refusing to follow the will of a marginal majority.

The turnout

With regard to elections’ results, which are legally binding, the turnout has no legal importance. It may have limited moral-political importance. Since the referendum is not legally binding, the strength of its moral-political importance is decided by taking the turnout into account. 72% of eligible voters actually voted. Those who did not vote probably did not care enough to vote. Not caring is also a political opinion that should be taken into account. Therefore, the referendum’s results should be read as follows: 28% of all eligible voters could not care less. 35% voted ‘remain’ and 37% voted ‘leave’. It does not look like a decisive decision to leave, does it? This way of perceiving the result is only possible when we evaluate the moral-political authoritative power of the referendum – and this is the only way that counts when we decide the moral-political authoritative power of the referendum. When no more than a third of all eligible voters cared enough to vote for either ‘leave’ or ‘remain’ it provides Parliament some useful information. It does not impose a strong moral-political duty on parliament to treat the ‘leave’ decision as authoritative.

The nature of the subject-matter

The UK being part of the EU is a constitutional matter in the sense that it is one of the basic principles of UK law, constitution and society generally. It is a basic characteristic of the legal system and the state. It is part of the very definition of the UK and it affects numerous aspects of its legal system, politics, culture, economics and society. It is morally-politically inconceivable to treat a 52% majority decision in a referendum as authoritative with relation to constitutional principles. Constitutional principles reflect an on-going consensus that can’t be changed by a marginal, temporary majority, on a specific Thursday in June. The stability of constitutional principles is what makes them ‘constitutional’. Will anyone in their right mind consider taking as authoritative a 52% majority decision to abolish constitutional principles such as the rule of law, the separation of powers, the sovereignty of Parliament or the monarchy? This is more so when a constitutional principle decides the nature of the state, as described above, and when its abolishment is practically irreversible.

In fact, it is anti-democratic to treat the referendum’s result as morally-politically authoritative. It sounds paradoxical but it is nevertheless true. With regard to non-constitutional norms, democracy should reflect the ever-changing majority will. The majority may support death penalty, abortion at will or a certain immigration policy at a certain point in time – and to change its mind shortly or not so shortly afterwards. Laws regulating these issues could be changed according to the current will of the people. The EU referendum is a different case completely, not only because it deals with a constitutional issue but also because the ‘leave’ result is irreversible. A few weeks, months or years from now, after a few lies are exposed, reliable information is revealed, and circumstances are changed, polls may show that a striking or a marginal majority prefers to stay or re-join the EU. Alas, that would not be possible. It is anti-democratic to allow a marginal majority in an isolated point in time to prevent a future majority from having its preferences realised (unless the purpose is to protect basic human rights or democracy itself – and this is not the case here).

The quality of the public debate

There is a consensus that the public debate prior the referendum was lively and intense – and at the same time – of poor quality. It is agreed that both camps openly made misguided arguments – and in fact lied to the public. The only dispute is about the identity of the winner in the lying competition: is the ‘remain’ camp the winner as it frightened the public with horror, imaginary stories about the consequences of leaving the EU, or was it the ‘leave’ camp that made false promises about the advantages of leaving the EU. Even though the ‘leave’ camp probably wins this lying competition, this is beside the point as all agree that too many voters were misled, swamped with disinformation and acted upon irrational reasoning or irrelevant considerations.

It is true that similar things can be said about many political campaigns and many pre-general-election public debates. However, the results of democratic elections are legally binding despite the poor quality of the public debate that precedes them and this is an unfortunate yet inevitable feature of democracy. The result of the EU referendum, however, is not legally binding. The result’s authoritative moral-political power is decided by the quality of the decision-making process that led to that result. In our case, the quality of the public debate was so poor that no result of this referendum, be that leave or remain, should be taken as morally-politically authoritative.

The age issue

Who voted for remain? 75% of voters in age of 24 and under, 56% of voters age 24-49, 44% of voters age 50-64, and only 39% of voters age 65 and above. Why does it matter? Well, if the referendum was legally binding it would not have mattered. Since it is not legally binding, then yet again, its authoritative moral-political power depends on the circumstances. If the referendum was about almost any other subject, the age issue was a non-issue. But a decision to leave the EU is unique. As argued above, it affects numerous aspects of our lives, it has long-term and meaningful implications and it is practically irreversible. Under these very special circumstances, votes of younger people, people who will be affected by the referendum’s result for the next 50 years of their life, should be accorded more moral-political weight than votes of people who – to put it bluntly – will not be with us in 10 years’ time. From the moral point of view, which is the only one the counts here, and in this very special case, the preferences of people who are retired, who enjoy relatively generous and protected pensions (comparing to what awaits the young generation), and who will not bear the consequences of the decision to leave, should be accorded lesser weight. Their voice should be heard but to accord their votes equal moral weight will be an act of unfairness and discrimination against those who will be affected the most by the referendum’s result.

Conclusion: taking the non-binding power of the referendum seriously

Many have rightly argued that referendums are a particularly bad way of making political decisions (and I will not elaborate on this point here). While referendums are being used in most democracies, non-binding referendums are quite rare (a few were held in Austria, Finland, Germany, Norway, Portugal, Sweden, and New-Zealand). Having non-binding referendums solves some of the problems which are created when political decisions are made by way of implementing ‘direct democracy’. This is true, however, only if the referendum is truly non-binding. Not surprisingly, in all cases of non-binding referendums, Parliaments followed the referendum’s result – and in some cases explicitly expressed their commitment to do so prior to voting day. There is one case, however, which can inspire UK Parliament. This is the case of the Greek bailout referendum from 2015. In that referendum 61% voted against the European Commission’s bailout conditions yet a few days later the Greek Government and Parliament agreed to accept different, somewhat worse conditions. The will of the majority was not in fact ignored. The referendum was not about whether to remain in the EU but rather about a specific bailout deal. Opinions polls, however, which were held before and after the referendum, consistently showed that most of those who voted against the bailout deal did not want a ‘Grexit’. They simply wanted to protest against the EU – and their own government – and to express their general frustration as ‘neglected’, ‘transparent’ citizens (sounds familiar?). When they accepted the new bailout deal, Greek politicians merely did what they had to do to give effect to the true will of the majority, which was to remain in the EU. Not a bad lesson to be learned.

Deciding to have a referendum on a subject-matter such as leaving the EU was a colossal political mistake. Same can be said about deciding to have the alternative vote referendum in 2011. In this referendum, 68% voted against replacing the present ‘first-past-the-post’ voting system with the ‘alternative vote’ method (where voters rank candidates in order of preference, rather than voting for a single candidate). The referendum suffered from many of the problems mentioned above (and especially a poor turnout of 42% and a poor public debate quality). Subject to general constrains of the doctrine of Parliamentary sovereignty, this referendum was not advisory. It did mandate executive implementation (see the Parliamentary Voting System and Constituencies Act 2011). Therefore, the referendum result’s questionable moral-political legitimacy could not affect its legal validity. Fortunately, Parliament decided that the EU referendum is not legally binding. When the question of legal validity becomes irrelevant, moral and political considerations do affect the authoritative power of the referendum’s result.

UK Parliament may be reluctant to perceive the EU referendum’s result as not morally-politically authoritative. That would be an enormous mistake which could only result from misconceptions about the true will of the majority and the moral-political legitimacy (perhaps even public-popular legitimacy) of this particular referendum’s result.

In the special circumstances of the EU referendum, some of which were only became clear after all votes were counted, moral and political principles inevitably lead to the conclusion that Parliament must not treat the referendum’s result as morally and politically binding. The alternative is not having a second referendum about the same question. It is also not having a second referendum about the leaving package that the UK may get from the EU. These referendums are likely to create further difficulties and new problems both in terms of their ability to reflect the true will of the majority and in terms of the legitimacy of perceiving them as morally and politically authoritative. Therefore, Parliament should decide now – or shortly after the election (if they are imminent) – whether to remain in the EU. Parliament should base its decision on its best judgment while taking into account numerous considerations, including the referendum’s result, yet without perceiving it as authoritative.

Dr Yossi Nehushtan, Senior Lecturer, School of Law, Keele University

(Suggested citation: Y. Nehushtan, ‘Why the EU Referendum’s Result Is not Morally-Politically Binding’, U.K. Const. L. Blog (5th Jul 2016) (available at https://ukconstitutionallaw.org/))

19Comments

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1

lawrence serewicz on July 5, 2016 at 9:49 am
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By these criteria, I dare say the American founding, starting with the Articles of Confederation and culminating in the US Constitution, would not have been considered morally-politically binding. I am not sure they even took a vote before they decided to rebel against the King.

When they did decide on a constitution, one could argue that the level of debate was no better (The high quality of the Federalist Papers notwithstanding).

The deeper question is whether the public opinion is to be respected. The UK is not founded on popular sovereignty understood as popular consent. For this reason, the people’s voice does not matter in the end.

By contrast, the US is founded on the principle of popular sovereignty for “Governments are instituted among Men, deriving their just powers from the consent of the governed” so when such a vote is offered, it is binding.
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  Yossi on July 6, 2016 at 11:03 am
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  The American Constitution didn’t have any democratic legitimacy when it was drafted. However: (1) when it comes to revolutions, states of emergency or establishing a new political order – we follow somewhat different rules. (2) the American constitution gained its political legitimacy in a long process of political, judicial and public engagement.
  
  Even if the UK is not founded on ‘popular sovereignty’, if it perceives itself as a democracy (which it does) the people’s voice should be heard and taken into account – if some pre-conditions are met. In our case, they were not.
  
  Thank you,
  Yossi.
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    lawrence serewicz on July 8, 2016 at 8:13 am
    
    No. This is simply wrong.
    US had a constitutional convention out of the articles of confederation. This meant the people thought their states had representatives go to the convention to draft the constitution.
    It had democratic legitimacy at all stages. This is a fundamental misunderstanding of American history and of its contrast to the United Kingdom which remains founded on force and fraud.
    Second you believe UK should follow public’s vote. In the US you must. Therein the second difference. The US is a democracy. The UK is not. The UK has a democratic veneer for the Crown rules not the people. It is expected, but not required, that the Crown act in the public interest. By contrast the US Government must act in the public interest for it is the public, a government of, by and for the people.
4

Robmod on July 5, 2016 at 10:41 am
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This is a very strong argument. It’s the difference between a close reading of the data behind the referendum result, which has not been a feature of the post vote debate and a cursory one, which has.

Of course it must be true that the moral weight of the votes of people who are politically and economically more active than the rest is heavier. This is a sensible consideration and supports the conclusion that referenda must be taken to be advisory and not de facto determinative. In other words, a referendum is not so much about which side won as about the provision of data sets requiring careful analysis.

It is apparent that the Remain vote was predicated on widespread support across diverse age groups whose overall turnout was lower than the principal group supporting leave. The turnout of the 18-24 age group, which delivered a majority of 75% for Remain, was only 36%. Fundamental questions about voter registration and the notion of unequal participation arise, but were already noted and discussed in committee, which concluded as follows:

“It is deeply concerning that certain groups of people—including young people, certain Black and Minority Ethnic groups, disabled people, and British citizens living overseas—are far less likely to be registered to vote and turn out at elections than others. Given current inequalities in the completeness of the electoral register, there is a strong case for focusing efforts to increase registration rates on those groups that are currently underrepresented. We recommend that the Government produce a plan well before May 2015—working with all parties, the Electoral Commission and EROs—for targeting those groups that are least likely to be registered to vote. There is also scope for politicians and political parties to have a continuous dialogue with these groups and convince them of the value of participating in all the elections for which they are eligible.”

http://www.publications.parliament.uk/pa/cm201415/cmselect/cmpolcon/232/23207.htm

Whereas nearly 13 million people included in the franchise arrangements did not vote in the referendum (and their interests have now been dismissed entirely, in taking the result to be determinative of the will of the people), yet 16 and 17 year olds, who were included in the Scottish referendum were not included in the EU referendum despite considerable vocal support for the proposal in Parliamentary debate. But members of this group will all be legally adult at the earliest date the UK’s withdrawal from the EU could be formalised. This, therefore, is material disenfranchisement, being inconsistent with the prior inclusion of this group in a matter of constitutional significance.

Furthermore, it was entirely foreseeable that the result of the referendum would produce stark regional disparities undercutting the notion of a decision making apparatus as a simple binary choice for the electorate as a whole. Consequently, the use of a referendum was always necessarily going to exert pressure on the Union of UK nations and in particular the fragile political settlement in Northern Ireland, in the event of a simple overall majority for ‘Leave’.

The proper and constitutional place for decision taking in these complex matters is indeed Parliament and as Stephen Sedley has pointed out in comments under the paper below, representatives “are constitutionally bound to vote according to conscience and not to mandate”. A further argument emerging in this debate is that the consciences of our representatives should be particularly engaged by the notion of the “false prospectus” offered to the electorate in the run up to the referendum.

https://ukconstitutionallaw.org/2016/06/27/nick-barber-tom-hickman-and-jeff-king-pulling-the-article-50-trigger-parliaments-indispensable-role/#comment-60977
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  Yossi on July 6, 2016 at 11:11 am
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  I agree that ‘the moral weight of the votes of people who are politically and economically more active than the rest is heavier’. It does not follow that the turnout is irrelevant (when the result is advisory). No one will take seriously a non-binding result of a 52% majority when the turnout is 10%. It’s a matter of degree – but the turnout matters, especially when the margin is so narrow.
  
  Thank you for your other informative and insightful comments which are an important addition the argument against perceiving the referendum as morally binding.
  
  Yossi.
6

John Hartigan on July 5, 2016 at 11:39 am
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This is dangerous territory. When we challenge the validity of a democratic vote on grounds of age (as much risk in being too young – not enough experience to make a judgement – as being too old – won’t be around to live with the longer-term consequences), motive (noble, less noble) or education etc. then we undermine the democratic process as a whole and, ultimately, the rule of law itself.

Whether we approve of voters’ decisions or not, we are not entitled to discount the validity of their vote. We used to have qualifications based on property and gender. The innumerable headstones and names carved on the monuments I visited on the Somme and at Ypres this weekend should remind us that we ought not to return to those times.

Every vote deserves respect.

In terms of process, constitutional change should not be embarked on lightly. In this instance, an impeccable process was followed – a manifesto pledge to have the referendum in the first place followed by four months of intense debate. If the country didn’t want a referendum then they didn’t have to vote Conservative in 2015.

The turnout was perfectly respectable; the result undeniable. A majority is a majority.

The quality of debate was depressing, but it is the responsibility of the opposing side to expose errors in the others side’s arguments. Four months is long enough to have this debate.

The final suggestion that constitutional change should be left to Parliament is fundamentally flawed. As I argue in “Betrayal of Britain: How Politics Failed Great Britain in the early 21st Century” all the major recent constitutional changes have sought a popular mandate either from manifesto pledges in general elections or from specific referenda. Whether it was joining Europe (Heath’s 1970 manifesto), staying in Europe (Wilson’s pledge in October 1974), House of Lords reform (Blair 1997) or devolution itself (every Labour manifesto from 1974 to 1997), MPs could claim a mandate from their constituents.

The unwritten rule is that you need consent (i.e. a manifesto pledge) for constitutional change.

The glaring exception was MPs approving the first Scottish independence referendum (Labour, Conservative and Liberal Democrat manifestos were silent on independence in 2010) – only six SNP MPs could claim a mandate for this decision no matter how well intentioned. This is the dangerous precedent – emboldening MPs to now make constitutional decisions that hitherto they would have sought consent for.

It is all the more imperative that consent for constitutional change is reasserted now. If there is a request from the Scottish Parliament for a second independence referendum, once again MPs will be acting without a mandate (all 2015 manifestos are silent on whether they would approve or reject a second independence referendum).

The article points to abolishing the monarchy. Unless we reassert the need for consent, technically, Parliament could do so tomorrow (assuming Royal Assent would be forthcoming). Parliament may then find itself reminded by voters and media alike that it may have the power, but it wouldn’t have the right. However, if a party was elected with a manifesto pledge to hold a referendum on abolishing the monarchy and, after four months of intense and heated debate, a turnout of 72% and a 52% majority then I think it would and should be respected.
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  Robmod on July 5, 2016 at 6:45 pm
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  In what set of circumstances would you have said that the result was unreliable? A 0.1% majority for Leave on the same turnout? A 50% turnout? Since you point up these numbers, is it just that 52% and 72% passes some sort of “smell test” for you? Or would you really have supported any bare simple majority on any turnout?
  
  If you wouldn’t, then it would be better to argue for thresholds, I think.
  
  The vote for Leave was 37.45% of the electorate. Is that really enough to be determinative of the will of the people? Is it really consent?
  
  What about the 13 million who didn’t vote? Do we co-opt them and then dismiss them?
  
  What about the 18-24 age group? 75% for Remain but only 36% in turnout. Or the 25-34 age group? 56% for Remain but only 58% in turnout. Should we not concern ourselves more with the turnout by age group breakdown rather than as one gross figure? It was the over 50s who turned out in droves and secured the majority. The under 50s declared for Remain. Scotland and Northern Ireland was for Remain. Is there really not a moral weight argument here? A need to drill down into the data of an advisory referendum? To take a considered view of patterns?
  
  Here’s another 1.5 million people nobody heard from. What about these?:
  
  http://www.votesat16.org/about/
  
  Isn’t it more than “every vote deserves respect”. Isn’t it everyone deserves respect?
  - 8
    
    John Hartigan on July 6, 2016 at 10:12 am
    
    Thankfully, in this instance, we don’t need to speculate on thresholds (devolution failed in Scotland in 1979 because a 40% electorate threshold was imposed) – 52% is clear enough. In 2014, 55% in Scotland was described by David Cameron as “decisive”.
    
    Analysing results by age, nation, region, class etc. to determine if all strata of society provided their consent applies to all elections. It is informative, but unless there is consent to do these things differently, then we ought to accept the result as it stands.
    
    A 72% turnout is high. You will never get a 100% turnout. If people don’t turnout to vote, they should accept the result of those who have voted.
    
    The country needs to make these decisions somehow and you will not please everyone. I have grave concerns, as set out in my pamphlet, that MPs should now feel they can make these constitutional decisions on our behalf.
    
    Does everyone reserve respect? Of course they do – hence we have a democracy.
    We should accept a democratic process rather than seek to undermine it.
    
    And we are missing the point, this was a good example of consent. There are issues where this is not the case and not being debated at all. Most critically, I argue that Holyrood should have the power to hold independence referenda rather than obtain approval from Westminster (I am aware that some commentators dispute that Westminster does have this power). We may have a general election sooner than expected. This provides the opportunity for UK-wide parties (but ideally not all of them so there is some choice for voters) to include this proposed constitutional change in their manifesto. If elected, the Scottish Parliament could hold a second independence referendum without the potential for dispute with Westminster or the electorate outside of Scotland.
    
    Similarly, your points about 16/17 year olds having the vote, thresholds by nation and percentage should be considered for future referenda. Again, let’s have the debate, see if a party includes such pledges in their election manifesto and secures a mandate for such changes. We do not need to reinvent the wheel.
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  Yossi on July 6, 2016 at 11:47 am
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  As to my campaign against old people: I don’t think it leads to a slippery slope. The argument is only valid with regard to the very special circumstance of this case (as I mentioned in the post: advisory decision, meaningful and long-term implications, and irreversibility). It’s very hard to think of similar cases. The ‘age argument’ does not apply to general elections, referendums on other subjects, or legally binding referendums.
  I should note though that we do prevent young people from voting – on grounds of age (thinking they do not have enough experience or mental ability to make a judgement ).
  
  “If the country didn’t want a referendum then they didn’t have to vote Conservative in 2015”:
  1. Not every vote for the Conservative party was a vote for a referendum – and vice versa. and even if it was, then:
  2. The country did NOT vote for the Conservative party in 2015. The Conservative party got 36.9% of votes. UKIP got 12.6%. Together that’s 49.5%.
  All other parties combined (Labour, Lib-Dem, SNP and GRN) got 50.5%.
  Only an anti-democratic and unfair voting system as we have in the UK can take these results and transform them to the Conservative party having the majority of seats in Parliament. That’s the law – but the law can’t change the facts – and the fact is that the UK is being led by a minority government, a government which didn’t get the majority of votes. In fact, the majority of votes (50.5%) were given to parties that could have form a coalition government, if the UK was a democracy that makes any attempt to reflect the majority will.
  
  I am happy with an unwritten rule that you need consent for making constitutional changes. As I said, if the referendum was legally binding, any kind of consent would have been (legally) acceptable. This is unfortunate but unavoidable. But since this is an advisory referendum, we can ask more from the advisory body. We can ask for informed consent. Here, ALL of the arguments of the leave campaign were lies (the money we pay the EU, immigration, the NHS, and more) – and the leaders of the campaign admitted the lies within a few days after the referendum!
  I find it morally intolerable and illegitimate that the same people who told these lies now argue that ‘the people have spoken’ and that the ‘leave’ decision is morally binding and inevitable.
  The advisory body was misled and acted upon false assumptions. All agree to that. What moral principle compels anyone – including Parliament – to treat the advice of an ill-informed and misled majority as authoritative?
  - 10
    
    John Hartigan on July 7, 2016 at 10:35 am
    
    Recognition of the principle of consent for constitutional change is the key – with that, we have an agreed process for authorising future referenda, changing voting ages, thresholds by nation or percentage, abolishing the monarchy, disestablishing the Church etc.
    
    You make important points re voting age which should be debated for future referenda and/or general elections. I do not agree that this should be applied restrospectively to invalidate the result.
    
    With respect to general elections, no other party secured a better mandate. I explore the legitimacy of UK first past the post governments and how this should be reformed in my pamphlet (link below).
    
    In terms of lies, it is a grave mistake to ignore or seek to invalidate the express vote of those with whom we disagree. We do not know and should not speculate on how voters reached their decision. Many will have thought long and hard about voting to Leave irrespective of the claims from both sides. Sadly, this is not the first time and will not be the last time that exaggerated claims appear in debate. It is the role of debate to expose statements we believe to be wrong or misleading.
11

Eric Bodger on July 5, 2016 at 12:25 pm
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EWexit is a feasible option

If England and Wales were to secede from the UK, it would match the will of the people in all four constituent parts of the UK.

Advantages:
1) Scotland and NI would simply continue within the EU, inheriting the UK membership. No need to apply, adopt the euro, or join Schengen.
2) It would avoid triggering a call for a united Ireland as a route to NI remaining in the EU. That call could result in a long set of disputes, potentially bloody.
3) It would protect the Financial Services industry, much of which already has a presence in Scotland. RBS, Standard Life etc could continue to employ in London, and be joined by English companies who re-register in Edinburgh.
4) All could be achieved by acts of the UK Parliament, replacing the Acts of Union with a new “Commonwealth” settlement. No Article 50,

Drawback
1. England and Wales would still have to negotiate a new arrangement with the EU, possibly on the Norway model.
2. Although the Queen would remain head of state for England and Wales, just as she is of Canada, she might wish to be headquartered in her mother’s country rather than in London. The secession Act could make clear that this new Commonwealth country would retain a direct Royal Assent for its laws, rather than working through a Governor/Viceroy. Just as she spends time in Scotland now, she would continue to spend time at Windsor, Buckingham Palace, in the country where the bulk of her Lord Lieutenants are based.
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  Andy Butler on July 6, 2016 at 1:56 pm
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  Brilliantly elegant solution.
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    Pat Cullen on July 13, 2016 at 11:37 pm
    
    It is an elegant solution – except for the name (but WEexit is no better…). Anything is clearly now possible in the constitutional settlement in the UK. Any chance that London could become part of this new axis of not-leaving-the-EU?
14

aleksandar_radu on July 5, 2016 at 3:11 pm
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Informative article that provides good arguments. My only question is why the quality of public debate does not deserve a higher place in the the argument development?
While every political campaign inevitably contains a set of false promises, the campaign for this referendum was appalling in terms of lies used to deceive voters.
This is the main reason for the referendum results to be thrown away. If campaign leaders denounce two main promises the day after the referendum they have automatically gave away the moral high ground thus rendered the referendum results morally non-binding.
Everything else goes after.
Both sides can play games with numbers, and voter turnout and age, and twist them this or that way.
However, publicly recognizing that two main promises used to sway voters for “leave” are actually false immediately after the results were announced is so outrageous that the results of the referendum should be nullified almost based on that single argument.
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  Yossi on July 7, 2016 at 9:45 am
  Reply
  
  I think you are absolutely right in your comment.
  My arguments were not equally strong or sophisticated – and I agree that in this case the blunt lies of the ‘leave’ campaign is a sufficient reason to accord the result very little moral weight.
  The law says the referendum is merely advisory. The advisory body was misled and acted upon false assumptions. All agree to that. No moral principle compels anyone – including Parliament – to treat an advice of an ill-informed advisory body as authoritative.
  All the other arguments merely reinforce this one.
  
  Thanks,
  Yossi.
16

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