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Yossi Nehushtan: Why Is It Illegal for the Prime Minister to Perceive the EU Referendum’s Result as Morally-Politically Authoritative?

Yossi NehushtanIn a previous post I argued that it is morally wrong to perceive the EU referendum’s result as morally and politically authoritative. My arguments were made in light of the fact that the referendum’s result is not legally binding. Here I wish to highlight a related yet neglected point and to argue that it is also illegal for the Prime Minister to perceive the EU referendum’s result as morally and politically authoritative.

Why is it illegal for the Prime Minister to perceive the referendum’s result as morally-politically authoritative?

On the legal front, the current debate focuses on the question of who has the legal authority to trigger Article 50 of the Lisbon Treaty and begin the Brexit process. Some argue (quite convincingly) that only Parliament has this authority (and see Barber, Hickman, and King’s post). Others argue that Government, and in fact the Prime Minister, acting under the Royal Prerogative, can act without the approval of Parliament. The latter is, apparently, the view of Government’s lawyers.

If Parliament is not required to exercise its legislative power in order to authorize the Prime Minister to issue a declaration under Article 50, the Prime Minister has wide discretion as to whether to issue a declaration. This is so because the referendum’s result is not legally binding. It is merely advisory. There is one thing, however, that the Prime Minister can’t do: the Prime Minister can’t treat the referendum’s result as binding and to issue a declaration under Article 50 merely because ‘the people have spoken’. The Prime Minister can’t do that because Parliament said so.

Unlike the alternative vote referendum in 2011, which did mandate executive implementation (see the Parliamentary Voting System and Constituencies Act 2011), no such provision was contained in the European Union Referendum Act 2015. All that the Act states is that ‘a referendum is to be held on whether the United Kingdom should remain a member of the European Union’. In the absence of a provision that states that the referendum is legally binding, and since a ‘binding provision’ was contained in the 2011 referendum Act, it seems that Parliament meant for the EU referendum to be advisory.

This means that it would be illegal for the Prime Minister to issue a declaration under Article 50 merely because ‘the people have spoken’. If the referendum’s result is merely advisory, it also means that the Prime Minister is under a legal duty to take all relevant considerations into account, which means considering the referendum’s result but also views of experts, new facts and circumstances that were revealed after the Brexit decision, the true and updated will of the majority, and the best interest of the nation. The Prime Minister will also have to act reasonably, i.e. to accord proper weight to these relevant considerations. Here, the arguments against perceiving the referendum’s result as morally-politically authoritative should lead the Prime Minister to accord limited weight to the referendum’s result.

“But we thought the referendum was binding”

Questions may be raised with regard to the contradiction between the law and false, implied assurances that were given to the public as to the binding nature of the referendum. ‘The people’ voted under the assumption the referendum’s result was binding. Apart from rare exceptions (e.g. David Allen Green, Adam Payne, and Haroon Siddique), all relevant actors – the media, voters, politicians and campaign leaders – were (or pretended to be) under the impression that the referendum was legally binding. Voters may argue that they were led to believe that the referendum was legally binding – and that therefore it should be legally binding – or at least morally-politically binding. There are numerous ways to answer this possible argument. Here I will only offer two brief answers: first, even if the belief that the referendum is legally binding resulted from an electoral promise or presentation, politicians are not legally bound to electoral promises (R. v Secretary of State for Education and Employment Ex p. Begbie [2000] 1 W.L.R 1115) and certainly can’t be bound to illegal promises. A promise to treat the referendum as binding is a promise to do something which is illegal. In fact, an electoral promise to do something is an irrelevant consideration, a consideration that must not be taken into account by an administrative body, to the extent that it promises something illegal (Bromley LBC v Greater London Council [1982] 2 W.L.R. 62; [1982] 1 All E.R. 129). Second, and more importantly, no voter in fact relied on the assumption/promise that the referendum was legally binding. Voters did not made their decision on whether to ‘leave’ or ‘remain’ based of the assumption the referendum was legally binding and would not have changed their decision if they knew that the referendum was not binding. In lack of reliance all we have is mere expectation, yet under current law mere expectation that an administrative body will act in a certain way (following either implied or explicit assurance) is not a ‘legitimate expectation’. It does not impose a legal duty on the administrative body to fulfil the expectation (R. (on the application of Lindley) v Tameside MBC [2006] EWHC 2296 (Admin)). In our case, it also does not impose a moral duty to fulfil the expectation, because of all the reasons which were mentioned in my previous post of why the referendum is not morally-politically binding. It is also worth noting that it is ironic that after all the glorious, shameless, unprecedented lies that the Brexit campaign’s leaders fed their supporters, and after all the false promises they made but never intended to keep, the Brexit camp’s leaders still insist that one single political promise will be kept: the promise to take the referendum’s result seriously.

Judicial review and justiciability

Questions may also be raised as to the justiciability of the Prime Minister’s decision on this matter (and see, for example, in Fairclough’s post). In light of UK courts’ general reluctance to decide issues of ‘high policy’ and the general deference that most judges show to the executive, it is not unlikely that the court will decide that this issue is indeed non-justiciable, i.e. that this is a dispute that should not be decided by the judiciary. A more appropriate judicial approach, one that coincides with the rule of law, would be to apply judicial review with regard to the question of whether the Prime Minister did take all relevant considerations into account and avoided perceiving the referendum’s result as a sole, conclusive reason to issue a declaration under Article 50. The subsequent question of whether the Prime Minister accorded proper weight to the relevant considerations, even though justiciable in my view, may require the court to defer to the Prime Minister’s judgment, at least to a certain extent.

The discussion thus far assumed that the Prime Minister does have legal authority to issue a declaration under Article 50. But what if the court decides that Parliament is required to exercise its legislative power and to enact a law that authorizes the Prime Minister to issue a declaration?  Here we have two options. First, Parliament can enact a law that compels the Prime Minister to issue a declaration. This would mean that Parliament decides that the referendum’s result is legally binding. Even though Parliament does have the legal power to enact such a law, it would be morally and politically wrong because of the reasons I previously provided against perceiving the referendum’s result as morally-politically authoritative. Second, Parliament can enact a law that merely authorizes the Prime Minister to issue a declaration under Article 50, without compelling him to do so. That would be the morally-politically right thing to do – and will bring us back to the discussion above about the scope of the Prime Minister’s discretion on this issue.

Conclusion

Whether only Parliament has the authority to trigger Article 50 and begin the Brexit process, or whether the Prime Minister, acting under the Royal Prerogative, can act without the approval of Parliament, both Parliament and the Prime Minister must take into consideration the reasons against perceiving the referendum’s result as morally-politically authoritative. While Parliament is under no legal duty to perceive the referendum’s result as not morally-politically binding, the Prime Minister is under such duty, unless Parliament explicitly states otherwise.

I thank Jeff King for helpful comments on this post.

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

(Suggested citaiton: Y. Nehushtan, ‘Why is it Illegal for the Prime Minister to Perceive the EU Referendum’s Result as Morally-Politically Authoritative?’, U.K. Const. L. Blog (11th Jul 2016) (available at https://ukconstitutionallaw.org/))

13 comments on “Yossi Nehushtan: Why Is It Illegal for the Prime Minister to Perceive the EU Referendum’s Result as Morally-Politically Authoritative?

  1. Chris Squire
    July 11, 2016

    For the benefit of other non-lawyers:

    OED has:

    ‘justiciable, adj. and n. < Anglo-Norman . .
    A. adj. . . suitable for legal action or proceedings.
    . . 1755 Johnson Dict. Eng. Lang. Justiciable, proper to be examined in courts of justice.
    . . 1925 Rotarian May 59/1 The United States can apply for a court decision on any justiciable question . . ‘

  2. David Hutchinson
    July 11, 2016

    A most interesting and closely argued article. Even in the complete absence of the recent referendum, I suspect that a maverick PM could still trigger Article 50 by using prerogative powers! Would you like to comment on this point? Kindest regards. David

    Sent from my iPhone

    >

    • Yossi
      July 11, 2016

      Thank you David.
      In the absence of a referendum (and the relevant Parliament Act from 2015), all we have is Article 50 that states that ‘Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements’. The question of who is authorised to trigger Article 50 (the PM or Parliament) remains open – and I didn’t try to answer it here.
      Yossi.

      • David Hutchinson
        July 12, 2016

        Yossi,
        Thank you for your response. I would just like to amplify my earlier comment relating to Prime Ministerial Powers:

        Given that Prime Ministerial Powers were used to facilitate military intervention in Suez (1956), the Falklands (1982), the First Gulf War (1991), Kosovo (1999) and Afghanistan (2001), it would appear that British prime ministers can act unfettered by the Crown or Parliament in foreign affairs.

        Although these powers are sometimes quaintly referred to as Crown powers, the Crown has not exercised them since the Bill of Rights (1689) and the Act of Settlement (1701).

        In this Alice in Wonderland world there was probably no need for a consultative referendum on EU membership. Any maverick British PM who tired of EU membership could trigger Article 50 of the Lisbon Treaty at any time, provided there was a good chance of surviving a Vote of No Confidence in the Commons.

        In 1976, Lord Hailsham famously described our system of government as an “elective dictatorship”. Those UK citizens who think their rights will be protected by the courts – including the Supreme Court – or by Parliament are indeed lost sheep!

      • Yossi
        July 13, 2016

        And a reply to your helpful clarification: the examples you gave of the PM using ‘Crown powers’ are troubling from a ‘democratic’ point of view, but here the legal context is different. Barber, Hickman, and King’s post explains it well. Their argument is that whatever legal powers the PM may have, she doesn’t have the power to trigger Article 50 – with or without an EU referendum. This specific decision falls outside the ‘Crown/prerogative powers’ of the executive.

  3. Paul Sevcik
    July 11, 2016

    Dear Dr Yossi Nehushtan!
    A very good article; however, let me ask you the following:
    In general, does expressing the opinions in such articles have any effect on the government and parliament at all?
    I mean, is there even a slightest chance that the government and parliament elitists will even read your and other’s articles that are basically pro-Bremain?
    I have so far read all articles on this website that are related to Brexit, and it seems to me that now the majority of the population in the UK wants to stay in the EU, but for some reason the government and parliament wants to get out.
    Don’t you think about the possibility that maybe all what has been happening since this pathetic EU referendum is a deliberate sideshow to distract the populace from the real target being instigated by the intelligence services like MI5, CIA, Etc.?
    In my opinion, aren’t all these articles of ours going to become completely irrelevant in the end because there are higher interests at stake?
    If it was for me and if I was a decision maker for the UK, at the current situation I would just say as follows: Okay, it has been a nice exercise, so now let’s all grow up and forget this idiotic EU referendum, because we are going to stay in the EU due to the fact that such shall be better for the country and its people in general.
    I wander how many people in the UK would actually object and how!
    And also who would actually have the guts and resources to start a civil war that has been mentioned on the internet by various xenophobic circles…
    In order to start a civil war, the Brexiters would have to get on their side the armed forces and the law enforcement at first.
    Sincerely,
    Paul Sevcik

    • Yossi
      July 11, 2016

      Thank you Paul.
      1. I hope that some powerful/influential people read some of the things we have to say – and perhaps even take them into account.
      2. I have no evidence which can support a conspiracy theory here, but who knows?…
      3. Threats of civil war are not a sufficient reason to follow a referendum that stands on shaky political-moral grounds.
      Yossi.

  4. Adrian Hunt
    July 11, 2016

    Thanks for your interesting article Yossi. I wonder about the discussion of relevant considerations, and the weight to be attached to them. You write:

    “The Prime Minister will also have to act reasonably, i.e. to accord proper weight to these relevant considerations. Here, the arguments against perceiving the referendum’s result as morally-politically authoritative should lead the Prime Minister to accord limited weight to the referendum’s result.”

    First, surely it is more correct to say that “The Prime Minister also will need not to have have acted ‘unreasonably’ ” in the Wednesbury sense. Second, and flowing from that, as far as relevant considerations are concerned, the obligation is not to accord improper weight in the Wednesbury sense to a consideration, not to accord “proper weight” to them.

    Third, even if we were not dealing with considerations which might be characterised as quintessentially political in nature, the weight to be attached to all relevant considerations is a matter for the decision maker (subject to Wednesbury). So your view that limited weight should be accorded to the referendum result, whilst no doubt perfectly cogent and arguable, does not establish, as a matter of law, that according it other than limited weight, is unlawful. Rather the question is whether to do that would be Wednesbury unreasonable. i.e. so unreasonable that no PM acting rationally could possibly accord it anything other than little weight. Though you may disagree, it is arguable that this is something about which reasonable people may differ, and arguably comes nowhere near the Wednesbury threshold. Furthermore, as you recognise, bearing in mind the high policy character of the decision, and the inherently political nature of the considerations and judgements about them, this decision is one which where, even if justiciable, the court may “defer to the Prime Minister’s judgment, at least to a certain extent”. Arguably this understates it a bit (a lot?). An alternative view surely is that the nature of the decision and the factors feeding into it make it more likely this will be characterised as falling very much towards the “light touch” end of the spectrum in terms of intensity of review.

    Finally, you say the PM must “take all relevant considerations into account” and avoid “perceiving the referendum’s result as a sole, conclusive reason to issue a declaration under Article 50.” This seems to give the impression that the PM could not lawfully give pre-eminent weight to the referendum result, and very little or no weight to others. However, speaking generally, it is not legally impossible for a decision maker rationally to decide that one consideration outweighs all the rest, or that very little or no weight be accorded to the others, so long as it is not unreasonable in the wednesbury sense, so to conclude. A requirement to consider all relevant considerations (and incidentally we might argue whether many/some/all of the ones you mention are discretionary, rather than mandatory, relevant considerations) is not an obligation to accord any weight to them in ultimately arriving at a conclusion so long as the decision maker has considered them, and his decision not accord them weight is not Wednesbury unreasonable.

    I realise this is all pretty standard stuff, but I suppose I am arguing that the way you set this up seems insufficiently to draw attention to limited role of the JR court in policing the way in which considerations are evaluated and conclusions are drawn, particularly, though not exclusively, in relation to high policy, multi faceted, political decisions of the sort under discussion.

    • Yossi
      July 11, 2016

      Than you Adrian for your thoughtful comment.
      You said that your arguments are all ‘pretty standard stuff’, so I guess we disagree about some public law standard stuff… (which is not uncommon).

      I think that the term ‘Wednesbury sense’ is not helpful and does not promote a better understanding of what reasonable is. I don’t think that ‘the weight to be attached to all relevant considerations is a matter for the decision maker (subject to Wednesbury)’. The administrative body is the decision-maker but it is for the court to review the weight that was accorded to the relevant considerations. A decision will be unreasonable when a less weighty reason or a relatively weak reason for or against the decision was granted too much weight, and accordingly when a relatively strong reason for or against the decision was granted insufficient weight – and when the distorted weight that was accorded to the relevant reasons affected the decision made. It is my understanding that this view reflects recent courts decisions about reasonableness as ground of review.
      Thus, the question is not necessarily whether according great importance to the referendum’s result is ‘so unreasonable that no PM acting rationally could possibly accord it anything other than little weight’. The question is merely ‘whether the PM accorded proper weight the referendum’s result’. The court may defer to the PM as a matter of judicial policy – but not because it is required by the reasonableness test as such.

      I do agree that it is very likely the UK courts will be extremely reluctant to scrutinize the PM decision. I think that this is unfortunate and I think UK courts sometimes fail to take seriously the rule of law, human rights, and interests of groups and individuals – because they take too seriously (a rigid perception of) the separation of powers principle. There are winds of change, but we need more ‘judicial activism’ in the UK.

      I also think that ‘the PM could not lawfully give pre-eminent weight to the referendum result’. She can’t do that because it would ‘Wednesbury unreasonable’ (if you insist…) and it would be ‘Wednesbury unreasonable’ because of all the reasons I mentioned in my previous post. I may be wrong, of course, but I strongly think that no reasonable person can accord significant weight to the specific result of this specific referendum.

      Lastly, the importance of judicial willingness to scrutinise the PM’s decision in this case does not necessary lie in the possibility of overruling the decision. It lies in forcing the PM to openly reason and justify her decision, to list of the considerations she took into account, and to describe and justify the weight she accorded to each consideration. In short, it’s about transparency, accountability and honesty.

      Thanks again,
      Yossi.

  5. Alessandra Asteriti
    July 13, 2016

    I have already posted this, but maybe it will be useful again. In a debate in the House of Commons in February 2016, following a question from Alex Salmond on the nature of the referendum and the necessity for Parliament to have a role in triggering article 50, Mr Hammond for the government replied as follows:

    The Government’s position is that the referendum is an advisory one, but the Government will regard themselves as being bound by the decision of the referendum and will proceed with serving an article 50 notice. My understanding is that that is a matter for the Government of the United Kingdom, but if there are any consequential considerations, they will be dealt with in accordance with the proper constitutional arrangements that have been laid down.

    Mr Hammond also added:

    Leave means leave, and a vote to leave will trigger a notice under article 50. To do otherwise in the event of a vote to leave would represent a complete disregard of the will of the people. No individual, no matter how charismatic or prominent, has the right or the power to redefine unilaterally the meaning of the question on the ballot paper.

    Regardless of the value one wants to place on the proviso (the consequential considerations bit) it is clear that the government did not only tie itself to abiding to the results of the referendum as a matter of ‘electoral promise’ which would indeed probably not suffice to engender legitimate expectations, but it did so in Parliament (and I might add, with no negative reaction).

    The debate on the constitutionality of the ‘will of people’ as the guiding principle is one in which I do not feel qualified to intervene, but it seems to me it is separate from the value to be given to unchallenged statements in the Commons by the government as to the consequences of the referendum as a matter of political and moral obligation.

    • Yossi
      July 13, 2016

      Thank you Alessandra for this very helpful comment.
      However, and under current law, even that kind promise (within the context you described) to treat the advisory referendum as binding is not legally binding. No legal rule prevents Government to change its mind.
      I do believe, however, that political-moral arguments are more important here. In short: the absence of reliance on this governmental promise – and the moral-political defects of the referendum to which I pointed in my previous post, justify according the referendum’s result limited weight.
      Also, if promises should be kept – doesn’t it also include promises that were given to those who voted for ‘Brexit’? But if these promises will not and can’t be kept – then ‘leave’ does not really mean ‘leave’. It meant ‘leave’ under certain assumptions (more money for the NHS; staying in the single market but having our own policy about immigration, etc.) but if we now know that these are false assumptions (as admitted by Brexit leaders!) then perceiving the referendum as binding means acting against the true will of the majority.

      Yossi.

      • Alessandra Asteriti
        July 14, 2016

        Hello Yossi
        thanks for reply. I am not a constitutional expert, and not inclined to pronounce on the legal value of Mr Hammond’s statements, but I was pointing out their political value as being higher than a campaign promise (and also the fact that they went unchallenged, both in the Commons and by constitutional experts at the time, to my knowledge). This sort of official statements can tie governments on the international plane (something that I hope the EU is taking into account, if the UK government drags its feets in invoking article 50).

        I should also add that in the policy paper ‘The Process for Withdrawing from the European Union’, published by the UK government in February, it is clearly stated at the outset:

        The result of the referendum on the UK’s membership of the European Union will be final. The Government would have a democratic duty to give effect to the electorate’s decision. The Prime Minister made clear to the House of Commons that “if the British people vote to leave, there is only one way to bring that about, namely to trigger Article 50 of the Treaties and begin the process of exit, and the British people would rightly expect that to start straight away”.

        This was presented to Parliament and again was not challenged, to my knowledge (that Cameron renegaded on his promise and scarpered off, apparently escaping the judgment of the British people he so hypocritically invokes, will be for the historians to ponder).

        Also, I would not put statements made by a senior minister in the Commons at the same level of the electoral campaign by the ragtag leave campaign.

        Personally I think it was political folly to have this referendum and the usual constitutional fudge that resulted is yet another demonstration of the incapacity of the UK constitutional arrangements to deal with complex political questions. But it also seems to me that both legally and politically, as things stand now, not as we wish them to be, the resutls of the referendum have to be taken into account.

  6. markandrews
    August 9, 2016

    In response to the question ‘leave’ or ‘remain’ 30,000,000 out of 46,000,000 Britons did not vote to ‘remain’. In law, where does the weight of judgement lie in the context of observance of the British constitution as embodied in Magna Carta, the Petition of Right, the Bill of Right and Act of Settlement? The purpose of law is to provide justice. The people were asked and gave their advice and expect to be heeded.

    What you are discussing is the exploitation of the inadequacy of the framing of the referendum in order to subvert the expressed will of a majority by use of the law to favour a minority. This is not justice it is cynicism.

    Better if you applied your evident legal skills to the investigation of the legality of the process that took the UK into an embryonic federal political union rather than a common market it was purported to be.

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