affiliated to the International Association of Constitutional Law
Legally the answer is clear: no. The European Union Referendum Act 2015 states that a referendum should be held. It does not state what should happen thereafter. Indeed, it is argued that we cannot follow it by issuing a notification under Article 50 of the Lisbon Treaty without a further Act of Parliament (see CLA posts by Barber, Hickman, King (compare Young), and the judicial review action being brought by Mishcon de Reya, instructing Tom Hickman and David Pannick, among others).
Politically the answer is more difficult: though Jeremy Hunt has called for a second referendum, David Cameron has ruled out that possibility and stated in his resignation speech that the will of the people ‘must be respected’. And that is the key point: a proper understanding of the legal machinery necessary to effect withdrawal from the EU is vital, but we can’t see the full picture without reference to the politics that will fuel the movement of that machinery. If the referendum was, as Cameron put it, ‘a giant democratic exercise, perhaps the biggest in history’, how could its effects ever be undone? That question would be difficult enough to answer in most circumstances, but in a context where many people voted Leave precisely because they felt disenfranchised, actually to disenfranchise them by failing to follow the results of the referendum has the potential to be particularly illegitimate and incredibly damaging.
And yet two substantive arguments are being put forward to suggest that we may not have to trigger Article 50.
The first argument is that the referendum was not as democratic as it was made out to be. True democratic debate requires access to accurate information (ironically, this is often cited as a reason why the freedom of the press is an instrumental good as well as a right in itself) and in the light of complaints that this was completely lacking in the context of the 23rd June referendum, it is tempting to argue that the result was therefore invalid. If duping a party into signing a contract is enough to invalidate that contract, should concerns over the veracity of referendum campaign claims not be sufficient to invalidate its result? If voters felt that they were provided with insufficient facts and evidence to make an informed choice, can the result be said to be truly valid? Is it even in keeping with the spirit of s 7 of the 2015 Referendum Act, which required the Secretary of State to publish a report containing information about rights and obligations under EU law as well as information about countries that have arrangements with the EU other than full membership?
Certainly there are those on record in social media who regret their choice to vote Leave on either or both of these two grounds of duplicity or lack of information. And only six years ago the election of Phil Woolas as the Labour MP for Oldham was declared void under s 106 of the Representation of the People Act 1983 on the basis that he had made several ‘false statement[s] of fact in relation to [his opponent’s] personal character or conduct’. The ‘primary purpose’ of s 106, said the Parliamentary election court, was ‘to protect the electorate from false information and ensure true freedom of election’. And yet of course s 106 itself cannot apply, either to the referendum in general (which did not concern the representation of the people by election) nor to statements about matters other than the character of a candidate for election. Nor is it clear in any case that this is the solution: the Woolas case was itself criticised in some parts of the press for having the potential to ‘chill’ free, political speech.
More generally, even if duplicity or a lack of information meant there were defects of process in the June 23rd referendum, it is difficult to argue that these went so far as to invalidate the result. We have no evidence that the number of people who now regret their choice is enough to have tipped the balance on June 23rd. Far from it – many people on social media are still celebrating the result of their vote. If the Remain campaign has already been criticised for telling people they would be idiots to vote Leave (Mervyn King), such insults cannot not now be compounded by the injury and lack of respect entailed in telling them that their choice will not now be respected because they did not know what they were doing.
The arguments about duplicity and lack of information do relate to the general question of when, if ever, it is appropriate to hold a referendum and what conditions are necessary to make it the fully democratic process it is supposed to be, but that is a different question for a future time. For now, we should focus instead on the other reason why Article 50 might not have to be triggered.
The Liberal Democrats have announced their intention to fight the next election, especially an early election on a pledge to stop Brexit. It would be open to a reconstituted Labour party to do the same, or indeed for there to be some kind of anti-Brexit coalition campaign, which might be necessary in order to achieve a large overall majority. Of course Theresa May has ruled out the possibility of such an early election if she becomes the new Conservative Leader. Nevertheless, if such an election were to come about and such a majority were to be achieved, this would meet the democratic legitimacy of the 23rd June referendum with another expression of democratic legitimacy; one more recent than the referendum and more in keeping with the country’s democratic traditions.
The benefit of this approach is that it would not be a means retrospectively to undo the 23rd June referendum, but a chance to ask the question prospectively. Those who do feel that they would have voted differently on June 23rd had they known the truth can have the chance to do so, not because that vote was invalid, but because they are being consulted again. And they are not the only ones being consulted – so is the rest of the electorate, including those who are content with their vote on 23rd June but now wish to change their minds and those who wish to affirm their decision notwithstanding the events since. It would also allow for broader domestic debate about the deeper, more fundamental concerns about inequality that motivated many Leave voters.
Democracy requires that the will of the people should be respected, not that it should be entrenched indefinitely; this is a key element of the Parliamentary sovereignty we all wish to protect. UK Parliamentary sovereignty means that Parliament can make and unmake any law whatever. If we were to regard Parliament as being shackled to the result of a referendum even when a general election returned a party with a mandate to disregard it, that would be to disrespect the sovereignty so prized by those on both sides, but particularly those who voted Leave. If an anti-Brexit party were to secure a large majority in a general election its government would then have a democratic mandate to stop Brexit, and if no such majority were secured, the existence of that second, and more traditional chance to vote would make the process of Brexit easier to bear for those who do wish to remain. It is democratically illegitimate to ignore the will of the people, but it is democratically legitimate to listen to them twice.
Rebecca Williams is a fellow and tutor in law at Pembroke College, Oxford and the Faculty of Law, University of Oxford.
(Suggested citation: R. Williams, ‘Do We Have to Follow the Result of the Brexit Referendum?’, U.K. Const. L. Blog (8th Jul 2016) (available at https://ukconstitutionallaw.org/))