Brexit is a siege of the UK

Dear Mr Barnier and Mr Verhofstadt,

You almost certainly understand this already but I would like to underline it for you.

What is really taking in the UK since the 2016 referendum is a not divergence between the UK and the EU but an internal siege of the UK by an extremist faction of the Conservative Party in government.  This faction has exploited the false pretext of the referendum (a merely advisory non-binding vote, ‘won’ by merely 37% of the electorate, with no franchise for key affected groups, including EU27 citizens) to pursue its own highly particular agenda of interests.  Only in name is Brexit a departure of the UK from the EU.  In reality and in truth, it is an internal UK coup d’état by a self-interested fringe of the Conservative Party.  The conflict that really exists is not a separation of the UK from the EU but a war of this cabal in government on our entire institutions of state, law, society and economy.

When the Brexiteers demand that citizens and MPs support their agenda and refrain from “undermining the UK’s negotiating position”, what they really mean is that they do not wish their own highly particular, highly damaging and undemocratic plans and interests to be exposed to public view. I call on you in this letter to force them to expose these plans and interests to view.  Please do all you can to help us in the UK come to an awareness of this government’s true agenda and rid ourselves of these villains in power.  Do not concede a single inch to any of the cabal’s demands. Sanction their regime in every way possible.

Britons must know, and will come to know, that you are on our side and that the real enemy is not you but these self-seeking vandals and hooligans of our state and society.  Help us force them to the point that they renounce their evil grip on power.

Yours sincerely,

Austin Harrington

Stop Brexit NOW – letter to my MP

Dear Mr. Sobel,

I am writing to you to underline very firmly my view that it is your immediate responsibility in Parliament to act to stop Brexit.

Do not reply to me with the notion that a democratic mandate exists for Brexit. It does not.  You know full well that fundamental change to a constitutional status quo on the basis of merely 51.9% of those who voted – in a merely advisory referendum, enacted merely on an election franchise, not a full referendum franchise – is not legitimate procedure.

You know full well that 37.4% of eligible voters, with no vote for 16-17 year olds, ex-patriate citizens resident abroad for longer than 15 years, or long-term EU27 residents, other than from Ireland, Cyprus and Malta – followed by no independent process of debate and decision by MPs in Parliament – provides zero democratic basis for any decision of this country to leave the European Union. You know full well that neither the referendum nor the vote in Parliament to permit the Prime Minister in March this year to give notice under Article 50 constitutes any genuine decision of the UK to leave the European Union.

You know full well that David Cameron’s promise of a referendum was nothing more than a tactic to keep quiet the Europhobic zealots in his party and perhaps at the same time to win a few extra votes from UKIP supporters in the 2015 election – a device which spectacularly backfired. You in the Labour Party are no longer in a position to stand passively on the side in the face of this wreckage of our country at the hands of the Conservative Party’s Brexit extremists.  It is now your moral responsibility to intervene.

I am asking you to put aside your party’s silly rivalries with the Conservatives and the Liberal Democrats. It is time for Members of all parties in Parliament to come together to stop this impending national disaster.  You must now move with all Members to require the Prime Minister to issue a plea of Revocation of Notice to the European Council – without delay.

I am not asking you to call for a second referendum. There is no time for this.  Before the expected cut-off date of 29 March 2019, there is practically and politically insufficient time for the Government to complete its negotiations, for a deal to be accepted by the national parliaments of all other member states of the European Union, for this deal then to be put to a referendum in our country in a correct process – with the option to Remain – and for all preparations to be made in the event of a second Leave vote.

The only option at this stage is for Parliament to take independent sovereign action to revoke the Article 50 Notice. After this, it will be Parliament’s and the Government’s task to rebuild trust with the electorate.  But the immediate national imperative is to stop Brexit.

As a political representative with powers vested in you to act in your own best judgement and not only as a delegate of the people, it is your right and above all your duty to do this – as I am sure you know.

 

Yours sincerely,

Austin Harrington

Letter to Mr Tusk: take no action under A50 notification until accompanied by a genuine UK mandate to leave

President of the European Council

Dear Mr Tusk,

I ask you please to take no action on the notification it is expected you will receive from the UK government under Article 50 on 29 March unless and until it is accompanied by a genuine mandate from citizens and residents of the UK to leave the EU.  This mandate still does not exist.  Our parliament has been coerced and intimidated by a malevolent nationalist press into accepting the non-binding referendum result of a mere 51.9% of votes cast, or 37.4% of eligible voters, as a mandate for leaving.  It is nothing of the sort.  16-17 year olds, long-term EU27 residents (except from Ireland, Cyprus and Malta) and British citizens resident abroad for more than 15 years were all denied a franchise.  No consent to leave is forthcoming from Scotland and Northern Ireland.  Our Westminster parliament held a merely advisory referendum and, as a consequence, imposed no binding quorum and no universal franchise.  Had the referendum been genuinely binding, it would have needed to set these requirements.  It would have needed to stipulate at least 60% of votes cast or 40% of eligible voters and an inclusive franchise.  Instead, it has behaved with gross dishonesty and cowardice in the face of populist intimidation, treating the marginal simple majority result of an advisory referendum as if it were the supermajority result of a binding referendum.  Our parliament held no formal debate on Brexit such as would have been necessary to convert this advisory referendum result into a genuine sovereign decision to leave the EU by representatives of the people.  It held merely a debate on the procedural matter of notification.  In any other democracy, such behaviour would be regarded as fundamentally unconstitutional.  I, and millions of other UK citizens and residents who wish to remain in the EU, ask you to consider that despite formal parliamentary consent to the notification, this notification is not truly in accordance with the UK’s ‘constitutional requirements’ under Article 50.  Please do not act upon it.  I call on you to block the UK’s purported departure from the EU by all means possible, unless and until this departure receives genuine democratic assent.  The European Union is an entity of supra-national solidarity.  The sovereign affairs of each member state are not sovereign in any absolute sense.  The affairs of the UK are at the same time the affairs of the other 27 member states and vice versa.  I, and the majority of the eligible voters of the UK who did not vote to leave (62.6%), call on you to help us.  It is by no means an exaggeration to say that the UK under the government of Theresa May and the Brexit cabinet is in the grip of a dictatorship.

Yours sincerely,

Austin Harrington

To Guy Verhofstadt: Offer No Deal to UK Without a 2nd Referendum on Whether to Leave

Dear Mr. Verhofstadt,

As a passionate British European, I am writing to ask for your help and support as Chair of the Alliance of Liberals and Democrats for Europe in the European Parliament.

For months, I and countless other activists in the UK have been constantly seeking to expel the obscenity now in possession of our country – Britain in the grip of Brexit. Yet so far our efforts seem to have been almost totally in vain.  So I am writing here to make a request of you.

First let me underline the following key facts:

  • Never has there been a valid majority for Brexit. Less than 60% of those voting or less than 40% of eligible voters is not an acceptable mandate for massive constitutional change of a country. As you know, the Brexit vote in the UK referendum of 23 June 2016 was a mere 37.4% of eligible voters, or 51.9% of those voting.
  • The referendum was advisory and non-binding but our government lied to us in claiming it would be binding – sadly with the collaboration of the rest of parliament. As you know, the reason is that Mr Cameron and the rest of the political class, including the Leave campaign, simply did not expect the vote to be greater than 50% of active voters. Mr Cameron risked holding the referendum as part of a strategy to reinforce his position as leader of the Conservative Party – a strategy which misfired, now with disastrous consequences for our country.
  • At least 5 million residents and citizens had no vote in the referendum – namely 16-17 year olds, long-term EU27 residents (except from Ireland, Cyprus, Malta), and British citizens resident abroad for more than 15 years.

I could list many other facts but they will be familiar to you.

The conduct of Theresa May and the Brexiteers in the wake of the referendum has been shockingly unconstitutional and undemocratic. Our court system ruled that the final decision on whether to leave the EU must be taken by our parliament.  Nevertheless, Mrs May set before parliament a bill which concerns merely the notification of an intention to leave to the European Council, not any actual decision to leave per se.  Despite the obfuscation of these two separate issues and despite a conviction of the overwhelming majority of our MPs before the referendum that a decision to leave would be entirely the wrong choice for the UK, our parliamentarians have now voted to accept the bill.  Under the influence of the gutter press empire of Mr Murdoch and Mr Dacre, they have been cowed and intimidated into passing the bill – despite a full knowledge that no genuine democratic mandate for Brexit exists.

Consequently, we live now in the UK effectively under a populist dictatorship. Our Prime Minister behaves like a tyrant.  She threatens parliament.  She threatens the other 27 member states by talking of UK plans to become a tax haven unless given a favourable deal.  She threatens Scotland, and she effectively threatens the entire country by allowing rumours to spread of her calling a general election if her bill is delayed or ‘frustrated’.  Her plans for the hardest of hard Brexits are utterly without mandate.  The overwhelming majority of the British public either do not wish to leave without a deal or do not wish to leave at all.  Yet Mrs May presses forward like a bull in a china shop, putting our country and the welfare and good will of all our European partners at risk.

I am therefore writing to make the following request.

Please do not support any negotiation with the UK without a commitment from our government that a resultant deal will be put to the people of the UK in a referendum and the people are given the option of rejecting this deal and choosing to stay in the EU if they so wish.

If Mrs May and the Brexiteers refuse to negotiate on this basis, let them do so. It is highly likely that this in any case is precisely how they intend to proceed.  Evidence already exists to suggest that they intend to choose ‘no deal better than a bad deal’ and to exploit resistance from your side to bullying on their side as a pretext for blame and resentment – always with the support of anti-EU demonization in the gutter press.

No doubt, the Brexiteers will seek to take advantage of strong electoral polling for Mrs May and weakness of the Labour Party to press forward with their agenda. Nevertheless, the people of the UK will not stand for this reckless devastation of our country.  They will rise up.  But we need your help and support.  So please help us stop Brexit.  Help us fight this coming civil war in our country by conceding absolutely nothing to the Brexit tyrants.  Do not budge one inch.  Make them pay for the consequences of their behaviour.  Treat them like the rulers of Apartheid South Africa.  Sanction them; boycott them.  Squeeze them till the pips squeak, so that we the people can eventually rise up and reclaim true democracy and true sovereignty of our country as a full and resolute member state of the European Union.

Yours sincerely,

Austin Harrington

Brexit, Populism, and the Crisis of Authority

After about 35 years of neoliberal, anti-social-democratic economic policy, resulting in unparalleled disparities of wealth and power, politicians and other professional elites become estranged from the common people. As a consequence, politicians who wish to hold on to power become more and more desperate for popularity.  Formally, they continue to speak on behalf of the people but, materially, they no longer appear truly of the people.  They beg for assent to their policies but can no longer take the people with them because they can no longer command authority.  More and more, they resort to blandishments and buy-offs.  They seem ever more willing to sacrifice principle and better judgement for popular support.  The result is a void of professional competence and authority at the heart of our politics.

Some months ago I thought that Brexit was a tragic accident, let loose essentially by a short-term cause – by David Cameron’s reckless gamble, promising a referendum in January 2013 without ever truly needing to do so, and then being stuck with its terrible consequences.  I now think that the causes are of a far more long-term nature, having to do with a virus of populism not only inside the Conservative Party and its upstart rival on the far right, UKIP, but across the entirety of our political class – and reaching way back through the years of New Labour to the two closing decades of the last century.

There must be a deeper reason why, with the possible exception of the SNP, MPs across all parties have been so utterly supine in their response to Brexit since the vote of 23 June 2016. Only now, some 5 months on, amid the emerging tyranny of Theresa May’s regime and impending economic collapse, are they beginning to express a few little peeps of resistance.  There is now finally some talk of “hard Brexit” not being “what the people voted for”.  Yet despite being one of the most patent minority votes one could possibly imagine – 37% of the electorate – the mantra that the result of the referendum must be “respected” continues to be trotted out.  The holy cow of the 52% of votes cast still seems to be untouchable.

Perhaps, then, we must look for the reason back in June 2015 when parliament drafted the EU Referendum Bill. Could it be that parliament’s pusillanimous conduct since June 2016 is simply entirely consistent with its behaviour at that time?  Could it that MPs’ abject cowardice over the past months simply reflects a deeper, dirtier truth, namely a knowledge on their part that they collaborated in the Tories’ populist enterprise at the very start and simply allowed the Tories to get away with an Act that specified no quorum – no percentage threshold – so as not to make the task of the Europhobes too difficult, being while ingenuously confident that Remain would win anyway?

All the evidence seems to point to this conclusion.  It is not just that MPs have been timid and cowardly.  It is that they know they allowed this to happen, by signing off on an Act that was deliberately defined as “advisory” so as not to be shackled to a threshold that might have been too hard for Brexiteers to make inroads towards, while at the same time agreeing to let the Act be talked about publicly as “binding” because this is what the Tories had promised to “the people” in their election manifesto – and since the Tories won the election, their wishes, after all, had to prevail.

So perhaps MPs are suffering from a shameful sense of awareness of their own collaboration in the makings of this disaster. It wasn’t just a gamble of Cameron, it was a gamble of the entire political class, desperate not to upset the populist aggressors and the tabloid media empire – while nervously trusting that the Hydra probably wouldn’t be quite monstrous enough in the end to bring the house down when it came to polling day.

The events of the past year and a half seem to be the symptom of a profound crisis of authority in our politics. Politicians have become incapable of leading the people – only of pandering to them.  They now conduct themselves like the parents of spoilt children.  Their connection to the electorate is not strong and authentic enough for them to exercise “tough love”.  They are like parents unable to deny their children’s every wishes in the knowledge that their kids’ unconditional trust in them ought to remain no less strong.  Instead they spoil them with chocolate and junk food to buy favour.  The result is a complete inversion of the rightful relations of power and authority.

This, I think, is the situation we now find ourselves in, in UK politics. It is a complete void of parliamentary principle and judgement.  For many years past now, UK representative democracy has been threatening to collapse into a direct dictatorship of the people, and this is what it has now become – with the referendum of 2016 simply being the final event of implosion.

An immature, politically illiterate electorate becomes an obese mass of consumers of sound-bites, fed a diet of tabloid-driven populist burgers and chips – and Theresa May’s extra-parliamentary tyranny is its counterpart and enabler.  Those 17 million voters, who are mendaciously paraded as a majority – truly a “tyranny of the majority”, in every sense of the phrase intended by James Madison – meet everything that Immanuel Kant described when he spoke of the absence of Enlightenment as a condition of languishing in “self-incurred immaturity” –selbstverschuldete Unmündigkeit.  People, though adult citizens, formally of voting age, behave like minors, like half-educated children dependent on the authority of others.  They behave like infantile tyrants of the family.  And yet to precisely these children are handed all the reins of power – all the power to decide over the future of a country of 65 million, for decades and generations to come.

Voters are King. And parliamentarians are their slaves.

—————

This was something I drafted more than two months ago but was too angry to finish and upload at the time.

Do not say ‘when we leave the EU’. It’s if, if, if – not ‘when’.

The BBC and all the UK newspapers, including the broadsheets, slavishly follow Theresa May and the Government in referring to Brexit in the future tense, instead of in the conditional.  They use constructions such as “as we leave the EU, “when we leave”, “after we leave”, etc – as if it were a forgone conclusion that we will leave.

The sole permissible constructions are: “if we leave”, “in the event that we leave” or “in case of a decision to leave”.

Use of the future tense in this instance is absolutely infuriating, for it implies that the matter has been settled when it most certainly has not.  It falsely legitimizes an entirely fraudulent notion that a decision to leave the EU has already been formally made when it has not.

The decision is pending.  It remains contingent on whether MPs decide that we should leave.  But no meeting of MPs – still five months since polling day – has formally taken place on this matter.

The referendum result was not a decision to leave.  The referendum was nothing but an advisory opinion poll.  It expressed merely an opinion of a minority section of the electorate – 52% of the votes cast, yet just 37% of the electorate, or 27% of the population.

It is absolutely critical that UK journalists do not collaborate in this utterly insidious and manipulative use of language by the Government.

Brexit is not a fait accompli – and journalists who write or speak of it as if it were should be ashamed of themselves.

The EU referendum wasn’t binding, yet UK Government deceived voters in saying it was – so it’s a disqualified process

Before 23 June 2016, millions of voters believed that the result of the EU referendum would be binding.  But they were mistaken.  The legislation never provided for any result to be binding.  The Government never had the authority to promise that a result would be implemented.

If the legislation never provided for a result to be binding, it is entirely irrelevant that voters believed otherwise.  The Government misled the public into believing the result would be binding when it knew full well from the outset – must have known – that this was not the case.

This deception alone is sufficient to invalidate the referendum.  If a government tells voters it will implement their vote automatically when it knows it has no authority to do so, it is deceiving them.  Deception is no basis for government action of any kind – let alone for a referendum of such profound constitutional importance as this one.

The Government cannot now say, after the fact – and perhaps out of a sense of shame – that it is honour-bound to respect the promise it made.  If it didn’t have the power to make the promise in the first place, it doesn’t have the power to keep the promise either.

But a further reason makes this referendum illegitimate – which is that by no means all voters believed at the time anyway that its result would be binding.  At least a minority of voters knew that this could not be the case.

Commons Briefing Paper 07212 stated that no requirement to implement a result existed – and this document was published on 3 June 2015, a full year before polling day.  Many tens of thousands, perhaps hundreds of thousands, of voters will have accessed this document online in the run-up to the referendum.

Then, in the crucial two weeks before the referendum, several media sources confirmed that the referendum would not be binding.[1]  Shortly before the referendum, some MPs also spoke of it as non-binding, and shortly afterwards other MPs said the same.[2]  A full list of items of evidence for these points follows at the end of this blog post.

Thus, while many voters mistakenly believed that the referendum would be binding, others – correctly – did not.  Constitutionally, such confusion is entirely unsatisfactory as a basis for a democratic process.  No referendum can be processed democratically if it has not been conducted on an absolutely clear, transparent and unequivocal footing.

Voters’ beliefs about the terms under which a result will be treated influence their voting intentions.  If they believe that a result will be binding they will vote in a certain way.  If they believe that it will not be binding, they may vote in another way.  A binding referendum is serious; a non-binding referendum is less serious.  If voters don’t expect a vote to be binding, they may not vote from a seriously considered belief about the state of affairs they would like to exist but perhaps instead from a less serious motive, such as from a sense of protest at the context of the vote.  Or they may choose not to vote at all – conscious that a final decision remains out of their hands in any case.

A fundamental confusion, and a fundamental deception, therefore prevailed among voters about the basic terms on which this referendum was to be conducted.

The referendum was carried out under false pretences.  Constitutionally, it is a disqualified process.  It must be entirely re-run or it must be disregarded immediately.

The passing of time makes absolutely no difference to these fundamental facts of the matter.  It is irrelevant that our Government and the media have spent the past five months talking incessantly of options and negotiations for Brexit.  No basis has ever existed for such talk – because absolutely no mandate exists for Brexit.

Like parrots, we can say “1 + 1 = 3” for five months or five years or five millennia – it makes no difference. The proposition is false.

 

Evidence of no belief among voters pre 23-June that the referendum would be binding

  1. House of Commons Briefing Paper 07212 was written by a Government employee: House of Commons Library Clerk, Elise Uberoi. This document was published on 3 June 2015. Therefore, more than one whole year in advance of polling day, a key Government document concerning the referendum – arguably the second most important document after statute itself – was available in the public domain for all to view; and this is the document that stated that the Bill for the referendum “does not contain any requirement for the UK Government to implement the results of the referendum” (section 5, p. 25).[3]
  2. On 25 June David Lammy MP stated on Twitter: “Wake up. We do not have to do this. We can stop this madness through a vote in Parliament. Our sovereign Parliament needs to vote now on whether we should exit the EU.  The referendum was an advisory, non-binding referendum. … Parliament now needs to decide whether we should go forward with Brexit, and there should be a vote in parliament next week”. Mr. Lammy could not have stated this on 25 June if he had not also believed this to be the case on or before 23 June.
  3. After the referendum, as reported by The Guardian on 13 September, Kenneth Clarke MP wrote to his constituents that he believed the referendum to have been “advisory”, i.e. not binding. Mr. Clarke could not have stated this at this time if he had not also believed it to be the case on or before 23 June.[4]
  4. On 14 June, the journalist David Allen Green published a post on the blog of The Financial Times, entitled “Can the United Kingdom government legally disregard a vote for Brexit?”. Consistent with Commons Briefing paper 07212, Mr Green answered this question in the affirmative.[5]
  5. On 14 June and again on 21 June, the journalist Adam Payne reported and commented on Mr Green’s post in Business Insider Magazine.[6]
  6. On 21 June Business Insider Magazine reported the same view as stated by Prof. Peter Catterall of the University of Westminster.[7]
  7. On 6 June Business Insider Magazine cited a BBC report that pro-Remain MPs were “considering using their house majority to vote for Britain to stay in European single market, even if there is a Brexit”.[8]
  8. On 6 June James Landale of the BBC reported that “Pro-Remain MPs are considering using their Commons majority to keep Britain inside the EU single market if there is a vote for Brexit”. Mr Landale quoted Stephen Kinnock MP (Labour) and one unnamed Conservative MP.[9]
  9. On 23 June, mid-way through polling day itself, Haroon Siddique published an article in The Guardian reporting that “the simple answer to the question as to whether the EU referendum is legally binding is ‘no’”.[10]
  10. It can be noted that readership of these media sources numbers in the 100s of thousands at a minimum. The BBC’s Audience Information document for April-June 2015 cites an Average Weekly Reach figure of 25.6 million viewers for all online content (p. 10).[11] The Financial Times has a circulation of 720,000 across print and online content.[12] The Guardian has a daily print and online readership of 2.24 million.[13] Adding to these figures an approximate further calculation of the number of voters to whom these sources would have been communicated orally in conversation, it would not be unreasonable to assume that at least a million voters did not vote in any clear understanding that a Leave result in the referendum would necessarily be implemented by the Government.

 

 

Notes

[1] Evidence below.

[2] Evidence below.

[3] http://researchbriefings.files.parliament.uk/documents/CBP-7212/CBP-7212.pdf

[4] https://www.theguardian.com/politics/2016/sep/13/ken-clarke-tory-constituent-brexit-eu-referendum-not-binding

[5] http://blogs.ft.com/david-allen-green/2016/06/14/can-the-united-kingdom-government-legally-disregard-a-vote-for-brexit/  Mr Green wrote: “The relevant legislation did not provide for the referendum result to have any formal trigger effect. The referendum is advisory rather than mandatory. The 2011 referendum on electoral reform did have an obligation on the government to legislate in the event of a “yes” vote (the vote was “no” so this did not matter). But no such provision was included in the EU referendum legislation”. Mr Green also wrote that in the event of a result favouring leave: “it is a matter for a member state’s ‘own constitutional requirements’ as to how it decides to withdraw. The manner is not prescribed: so it can be a referendum, or a parliamentary vote, or some other means. In the UK, it would seem that some form of parliamentary approval would be required…”.  Further, he wrote: “And if there is a parliamentary vote before any Article 50 notification then there is the potential irony of those seeking to defend parliamentary sovereignty demanding that an extra-parliamentary referendum be treated as binding. But it must be right that the final decision is made by parliament, regardless of what the supposed defenders of parliamentary sovereignty say”. Further: “A vote for Brexit will not be determinative of whether the UK will leave the EU. That potential outcome comes down to the political decisions which then follow before the Article 50 notification. The policy of the government (if not of all of its ministers) is to remain in the EU”.

[6] http://uk.businessinsider.com/green-eu-referendum-not-legally-binding-brexit-2016-6

[7] http://uk.businessinsider.com/eu-referendum-interview-peter-catterall-on-eu-brexit-2016-6

[8] http://uk.businessinsider.com/report-pro-remain-mps-will-use-majority-to-keep-britain-in-single-market-2016-6

[9] http://www.bbc.co.uk/news/uk-politics-eu-referendum-36457120

Mr Landale reported: “Ministers have told the BBC they expect pro-EU MPs to conduct what one called a ‘reverse Maastricht’ process – a reference to the long parliamentary campaign fought by Tory eurosceptic MPs in the 1990s against legislation deepening EU integration. Like then as now, the Conservative government has a small working majority of just 17. They say it would be legitimate for MPs to push for the UK to stay in the single market because the Leave campaign has refused to spell out what trading relationship it wants the UK to have with the EU in the future. As such, a post-Brexit government could not claim it had a popular mandate for a particular model. One minister said: ‘This is not fantasy. This is a huge probability’. Labour frontbenchers say they have also been discussing the option. One said it would be hard for pro-Brexit MPs to resist the Commons deciding Britain’s future relationship with the EU, as it would demonstrate the principle of parliamentary sovereignty Eurosceptics have been demanding for years. Stephen Kinnock, the Labour MP for Aberavon, said: ‘If the British people voted to leave the EU that’s one thing. But can we really say that they voted for the devastation and destruction of the entire exporting sector of our economy? I don’t think you can necessarily say that there’s a democratic mandate for that.’ Pro-EU MPs could use their voting muscle later this year when a post-Brexit Tory government would be expected to put its negotiating plans to parliament. The government would struggle to negotiate with the EU if it could not secure the support of the Commons.”

[10] https://www.theguardian.com/politics/2016/jun/23/eu-referendum-legally-binding-brexit-lisbon-cameron-sovereign-parliament

[11]http://downloads.bbc.co.uk/aboutthebbc/insidethebbc/howwework/accountability/pdf/summary_audience_information_april_june_2015.pdf

[12] http://aboutus.ft.com/2015/02/27/financial-times-2014-results/#axzz4M7UqpRF3

[13] http://www.newsworks.org.uk/The-Guardian

Critique of the Government’s Legal Case for Triggering Article 50

 

I’m not a lawyer and have no legal training but the following is what I would want to say if I had the job of attacking the Government’s resistance to The People’s Challenge on the serving of notice to leave the European Union under Article 50 of the Treaty of European Union.  This resistance was published by order of Justice Cranston in the High Court on 27 September 2016:

jolyonmaugham.files.wordpress.com/2016/09/defendant_s-detailed-grounds-of-resistance-for-publication.pdf

As a non-specialist, I’m not competent to judge on the technical intricacies of this case and there are many paragraphs on which I’m not qualified to make comment.  Nonetheless, it seems to me that certain basic matters of principle are at stake in this case which ought to be evident to all.

I draw here simply on my own argumentative skills as someone with a UK doctorate in philosophy, as well as a Masters from the University of Paris and a second doctorate from the University of Erfurt in Germany – all thanks to my current EU rights of citizenship, soon to be taken away if Brexit passes.

I respond under 6 main headings as follows:

  1. Was the referendum held on a clear understanding that its result would be binding?
  2. Has a decision to leave already been made?
  3. Is this matter a purely political one, beyond the domain of the law
  4. Is this matter a purely administrative one
  5. Will UK citizenship rights persist after commencement of a step to withdraw
  6. Is there a sustainable distinction between foreign and domestic affairs relevant to this case?

 

Was the referendum held on a clear understanding that its result would be binding?

1.  The Government asserts that “it was clearly understood” that it would give effect to the result of the referendum and that this was “the basis on which the electorate voted”. This, it asserts, “was the obvious premise on which the referendum was undertaken” (5:2, 12:1, 12: 2).

2.  Exactly when, where, by what or by whom was this “clearly understood”? Where was the premise “obvious”?  What evidence does the Government give for this claim?

3.  The 2015 EU Referendum Act provides no evidence at all for the claim. Unlike the 2011 Referendum Act on AV, the 2015 EU Referendum Act contained no section on result or criteria of implementation.  It did not specify that if a threshold were passed, the Government would give effect to any result.  On the contrary, House of Commons Briefing Paper 07212, published to accompany passage of the legislation through Parliament in June 2015, explicitly stated the following: “This Bill requires a referendum to be held on the question of the UK’s continued membership of the European Union (EU) before the end of 2017. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution”.[1]

4.  If, as the Government asserts, it “had been very clear” on the matter, why did it not make itself clear in the one place that mattered – in statute for the referendum? Given that the Conservative Party had previously stated in its election manifesto of April 2015 that it would respect the result of the referendum, why did it not take care to reproduce this pledge in the one and only place that could have possibly given the pledge legal authority?

5.  A manifesto pledge has no legal authority in itself; only statute has such authority. A manifesto pledge can be broken; a law cannot.  Not all parts of the Conservative Party’s manifesto have been honoured to date; and not all parts of a party election manifesto typically are honoured by an elected Government.  Therefore, why should the referendum part of this party’s election manifesto occupy a privileged place – an even more privileged place, it would seem, than the supreme authority of statute?  Only statute passed by Parliament has ultimate authority and only this can supply the true basis of legitimacy for conduct of a referendum.  Government literature, governing party literature, ministerial spoken word and alleged oral understanding between Government and members of the electorate form an at best secondary basis of legitimacy.

6.  The Government’s appeal to “a clear understanding” of the electorate regarding the referendum is vague and unsubstantiated. The Government cites no evidence of any plurality of individuals voting on this understanding.  The sole piece of evidence it supplies is a remark it cites in footnote 1 under paragraph 12:1 by Baroness Anelay of St. Johns in the House of Lords on 23 November 2015, recorded in Hansard.  It asserts that this remark dispels “any doubt” about the “obvious premise on which the referendum was undertaken”.  Yet the quoted remark scarcely dispels any doubt at all.  A single utterance by a little-known peer in the House of Lords, 7 months ahead of polling day, is hardly evidence for an “obvious” understanding held by an entire electorate of 46 million eligible voters.

7.  The Government states that it “has made it clear that it respects the outcome of the statutory referendum”. But this begs the question of whether it, and it alone, is entitled to act upon the outcome and not also parliament – and precisely this is in question.

8.  In this sentence and on at least three other occasions, the Government engages in petitio principii, i.e. question-begging or “petitioning for principles”. It asserts that it “sees no legal basis to prevent it from giving effect” to the outcome, but this begs the question of there ever being a legal basis requiring it to give effect to the outcome, which there was not (10).  Similarly, it asserts that “there is nothing in the Act to suggest that Parliament intended that the Government should only take the step of giving notification…if given further primary legislative authority to do so” (12:1).  However, the opposite is equally the case: there is nothing in the Act to suggest that parliament intended that Government should take this step without further legislative authority to do so.  Further, the Government asserts that it cannot be prevented from giving effect to the alleged decision “by the absence of primary legislation authorizing that step” (12:3); yet once more this begs the question of anything positively authorizing it to give effect to the alleged decision.  Nothing in the legislation says that it cannot, but nothing in it says that it can.

9.  The indeterminacy of statute on this matter entails just one unavoidable conclusion, namely that parliament should always have been involved in any decision on the matter, and should be involved now.

10.  By disallowing parliamentary involvement, however, the Government acts beyond the terms of its own statute for the referendum. In this sense, it acts beyond the spirit of the law – its own law.

11.  The Government accepts the description of the referendum as “advisory” but it questions the claimant’s use of this word by saying that it is “incomplete and inappropriate” when used to “imply lack of parliamentary permission to give effect to the result or some parliamentary requirement to return by primary legislation”. It is true that the result does not by itself imply lack of parliamentary permission to give it effect, but it does not imply parliamentary permission to give it effect either.  It implies a recommendation by the people to its representatives but it implies no obligation on those representatives to carry it out.  It leaves the decision whether or not to carry it out entirely with those representatives themselves.  This is the reserved sense of “advisory” in distinction to “binding”.  Something that is advisory to X is something that is not binding on X.  “Advise” does not mean “instruct”, “demand”, “insist” or “expect”.[2]   Therefore the claimant’s use of the word is correct.  It is complete in itself and in no need of supplementation.  The Government once again engages in petitio principii in begging for the logically negative (“nothing that says it can’t”) when the logically positive is equally valid (“nothing that says it can”).

12.  If parliament had agreed in advance to surrender involvement in treatment of a result, it could not have passed the statute that it did. As with the Act on the Referendum for AV, it would have instead passed an Act stipulating clearly that a result would be binding, on condition that the result passed a definite threshold based on a percentage of all eligible voters (the electorate) or alternatively on two percentages, one referring to a minimum proportion of votes cast and one referring to minimum proportion of participating voters (i.e. turnout).  But it did not do this.  Therefore, parliament did not and could not have consented in advance to a referendum in which any result would be treated as binding.

13.  The following is evidence of members of the electorate, of MPs, and even of a prominent Government employee, not voting in the referendum on 23 June in any clear belief that its result would be binding.

i.  House of Commons Briefing Paper 07212, cited under paragraph 3 above, was written by a Government employee: House of Commons Library Clerk, Elise Uberoi. This document was published on 3 June 2015.  Therefore, more than one whole year in advance of polling day, a key Government document concerning the referendum – arguably the second most important document after statute itself – was available in the public domain for all to view; and this is the document that stated that the Bill for the referendum “does not contain any requirement for the UK Government to implement the results of the referendum”.

ii.  On 25 June David Lammy MP stated on Twitter: “Wake up. We do not have to do this. We can stop this madness through a vote in Parliament. Our sovereign Parliament needs to vote now on whether we should exit the EU.  The referendum was an advisory, non-binding referendum. … Parliament now needs to decide whether we should go forward with Brexit, and there should be a vote in parliament next week”. Mr. Lammy could not have stated this on 25 June if he had not also believed this to be the case on or before 23 June.

iii.  After the referendum, as reported by The Guardian on 13 September, Kenneth Clarke MP wrote to his constituents that he believed the referendum to have been “advisory”, i.e. not binding.  Mr. Clarke could not have stated this at this time if he had not also believed it to be the case on or before 23 June.[3]

iv.  On 14 June, the journalist David Allen Green published a post on the blog of The Financial Times, entitled “Can the United Kingdom government legally disregard a vote for Brexit?”. Consistent with Commons Briefing paper 07212, Mr Green answered this question in the affirmative.[4]

v.  On 14 June and again on 21 June, the journalist Adam Payne reported and commented on Mr Green’s post in Business Insider Magazine.[5]

vi.  On 21 June Business Insider Magazine reported the same view as stated by Prof. Peter Catterall of the University of Westminster.[6]

vii.  On 6 June Business Insider Magazine cited a BBC report that pro-Remain MPs were “considering using their house majority to vote for Britain to stay in European single market, even if there is a Brexit”.[7]

viii.  On 6 June James Landale of the BBC reported that “Pro-Remain MPs are considering using their Commons majority to keep Britain inside the EU single market if there is a vote for Brexit”.  Mr Landale quoted Stephen Kinnock MP (Labour) and one unnamed Conservative MP.[8]

ix.  On 23 June, mid-way through polling day itself, Haroon Siddique published an article in The Guardian reporting that “the simple answer to the question as to whether the EU referendum is legally binding is ‘no’”.[9]

x.  It can be noted that readership of these media sources numbers in the 100s of thousands at a minimum. The BBC’s Audience Information document for April-June 2015 cites an Average Weekly Reach figure of 25.6 million viewers for all online content (p. 10).[10]  The Financial Times has a circulation of 720,000 across print and online content.[11]  The Guardian has a daily print and online readership of 2.24 million.[12]  Adding to these figures an approximate further calculation of the number of voters to whom these sources would have been communicated orally in conversation, it would not be unreasonable to assume that at least a million voters did not vote in any clear understanding that a Leave result in the referendum would necessarily be implemented by the Government.

Has a decision to leave already been made?

14.  The Government appears to advance three arguments for its claim that parliament should play no role in any decision to leave the EU. These are (i) that a decision has already been made, (ii) that notification under Article 50 is merely an administrative matter, not itself part of any decision-making process, and (iii) that the courts have no business in this matter.

15.  The following paragraphs deal with argument (i). Sections III and IV below address the two remaining arguments.

16.  The Government asserts that a decision to leave the EU has been made already (2). It expresses this assertion in the first sentence of its statement in paragraph 1: “On 23 June 2016, in the European Union Referendum, the electorate of the UK voted by a clear majority to leave the EU”.

17.  However, this opening sentence is incorrect. A majority of the UK electorate did not vote to leave the EU.  The correct definition of the keyword “electorate” is, as given in the Oxford English Dictionary: the total number of legally eligible voters.[13]  The “electorate” is not the total number of votes actually cast by eligible voters.  Therefore, the percentage of the electorate that voted to leave is not 51.9% but 37.4% (with 34.7% voting to Remain and 27.9% not turning out to vote).

18.  Self-evidently, 37.4% of the electorate is not a majority of the electorate. Still less it is a “clear majority of the electorate”.  Therefore, the opposite is the case: a minority of the electorate voted to leave (37.4%) and a majority of the electorate did not vote to leave (62.6%).

19.  Insofar as the Government’s assertion that a decision to leave has already been made refers to the result of the referendum, it is a false assertion. A decision to leave has not already been made because the result on which the decision is alleged to be based is not a majority but a minority.

20.  The Government’s misuse of the crucial term “electorate” in the opening sentence of its statement is deceptive. Perhaps it is even wilfully deceptive.

21.  Noteworthy is that 37.4% of the electorate amounts to just 27% of the population of the UK; from follows that 73% of the population of the UK did not vote to leave the EU.

22.  It would appear that the Government’s intention in its opening sentence is to refer to the proportion of votes actually cast by members of the electorate, namely 51.9%. However, this is not “a clear majority” but at best a marginal one.  The difference between 51.9% and 48.1% is in no way acceptably described as “clear”.  The pie-chart of the distribution of votes cast produced by the Electoral Commission, with votes for Leave and Remain coloured in dark and light shades of blue, makes in no way obvious at first glance that the proportions are anything other than roughly equal.[14]  The fractional difference is not immediately apparent to the eye – which suggests that a very natural and common-sense interpretation of the result would be that it is essentially a draw of the two sides.  Were the percentages to be rounded up to a single digit on both sides, this indeed would be the outcome – 5:5.

23.  Relative to the enormous constitutional import of the matter at issue, the fractional majority for Leave on votes cast is also further diminished in significance. Had the matter been of lesser import, not affecting the entire population of the UK for decades and generations to come but perhaps only one part of the population and for a more limited time period, the majority might have been considered acceptable.  But the matter is not of such lesser import.  Therefore 51.9% of mere votes cast cannot be considered acceptable for change of such propound and far-reaching nature.

24.  The Government equivocates over the agent it alleges to have provided a decision to leave. First it identifies it as the part of the electorate that voted to leave (despite this part not in fact being a majority but a minority) (5:2, 9).[15]  Then it identifies itself as the agent, acting under the authority of the Crown (12:6, 14).[16]  Then it raises (but then rejects) the possibility that parliament might be the agent (10).[17]   Then it identifies it grandiosely as “the United Kingdom” (15).[18]  Then in other places it identifies it as both itself and the result (12:2).[19]  And then it identifies it as itself by means of a tautology, disguised as a reference to the result (12:3).[20]  Equivocation and evasion of this kind severely weaken the coherence of the Government’s case.

25.  The unavoidable conclusion of above is that no genuine decision of the electorate of the UK has been made to leave the EU and therefore no true mandate for Brexit exists. 37.4% of the electorate is not a majority and therefore cannot constitute a “decision” if a “decision” is here defined as the result of the referendum.  Further, even supposing the Government’s misuse of the word electorate were disregarded and understood instead according to its likely intention as the proportion of votes cast for Leave, the inference that a decision to leave had been made would be at best highly debatable;  and even supposing a clear majority had been given, whether of the electorate as a whole or of votes cast, the conclusion would still not follow that a complete and definitive decision had been delivered because parliament has still not been involved in any determination of an alleged decision to leave at all, which is contrary to its entitlement – by reason of the merely advisory and non-binding basis of statute for the referendum.

26.  The Government’s statement of its view that parliament need not be involved in any matter at all concerning decision-making and implementation stands in contradiction to a report prepared by one of its own employees, namely Elise Uberoi, author of Briefing Paper 07212, posted on the House of Commons Library Blog, entitled “Brexit: The People v. Parliament”, published on 8 July. This post opens with the words: “An increasing number of voices suggest that Parliament needs to be involved in triggering Article 50, the first legal step towards the UK’s withdrawal from the EU”.[21]

III.  Is this matter a purely political one, beyond the domain of the law?

27.  The Government asserts that the “decision to withdraw is not justiciable”, i.e. is no business of the courts (5:3, 5:4, 12,5). It states that “the appropriate point at which to issue the notification under Article 50 is a matter or high, if not the highest, policy; a polycentric decision based upon a multitude of domestic and foreign policy and political concerns for which the expertise of Ministers and their officials are particularly well-suited and the Courts ill-suited” (15).

28.  However, the claimants’ case is not that the courts should be involved in any decision-making, only that parliament should be involved.

29.  If, as the Government says, the matter is of “the highest policy”, requiring “expertise” in “a multitude of domestic and foreign policy and political concerns”, this might well be thought to constitute all the more reason for parliament to be enabled to contribute its valuable expertise on the matter.

30.  The Government states that parliamentary involvement in legislation regarding the referendum (notably concerning the European Community Act of 1972) would be “constitutionally impermissible”. (5:4). It further states that notification under Article 50 must be “a matter for Government, rather than for parliament” and it asserts that this position follows “standard constitutional practice” (12:5).

31.  However, the Government provides no source for these assertions. Although it cites a number of case precedents later in the document, it supplies no reference to any constitutional source, statute, case or situation to corroborate its position at this point.  It holds itself authorized to define where the proper boundary between politics and the law resides – but precisely this is in question.

32.  The Government claims that the court, in recommending parliamentary involvement, would be “trespassing on proceedings in parliament” (5:4). Yet it is hard to understand how a court that merely recommends that parliamentary proceedings take place could be seen as “trespassing on proceedings in parliament”.

33.  The Government’s claim that parliamentary involvement would be “constitutionally impermissible” rests on a circular argument, equivalent to an ace card inadmissibly played twice in a game of cards. Since the constitution of the UK is unwritten or not textually codified and therefore supplies no general rules governing conduct of referendums, the applicable rules for a referendum have to be specified in the relevant individual piece of legislation.  This is a task for Parliament and this was the task carried out by Parliament in enactment of the Bill for the referendum in June 2015.  But if then happens that a dispute arises over conduct of a referendum, as with the present case, the matter cannot be referred back again to some alleged source in the constitution because the constitution’s very lack of a guiding source on the matter was the reason for the matter’s being handed to Parliament in the first place.  So the matter cannot be referred to the constitution again.  The Government here plays the same card twice in invoking the Constitution for a second time, after it has already been invoked once.

Is this matter a purely administrative one?

34.  The Government argues that the claimants’ case “conflates the process of notification with the decision to be notified”. It argues that the former must be distinguished from the latter and therefore that insofar as a decision to leave the EU has been given, all that remains now is simply an act of notification: a mere act of “procedural implementation of the decision to withdraw”.  Such a notification, it states, will be simply “an administrative step on the international law plane” that need not involve Parliament (2:5, 8:2, 9, 10).

35.  Leaving aside the false premise of these sentences – the presumption that a decision to leave has been made – the following problem arises with this reasoning.

36.  In theory, it might be acceptable to distinguish between the making of a decision and the subsequent act of notifying the decision to a relevant body. However, the question arises as to whether this theoretical distinction is sustainable in practice in the concrete and specific case at issue.  Two reasons suggest that it is not.

37.  Firstly, as demonstrated, no decision to leave the EU has been made: all that has been delivered is a mere 37.4% minority vote of the electorate to leave. At best, no complete decision to leave the EU has been made because all that has been delivered so far is a mere fractional majority of 51.9% of votes cast, with as yet with no deliberation of parliament on the matter.  But even supposing the result had expressed a genuinely clear majority (of votes cast or of all eligible voters), still such a result could not be taken to constitute a complete decision to leave because parliament has not been involved in any decision-making process, and precisely such involvement of parliament would have been required by this referendum inasmuch as this referendum was defined in statute as advisory rather than binding.  Therefore, in the case at hand, no valid distinction between an allegedly already complete decision and a mere remaining need to notify it can be sustained.

38.  Secondly, the claimants have brought their case for the reason that no formal meeting of parliament has as yet taken place involving deliberation on the result. Had such a meeting taken place at this stage, no case would have been necessary.  Therefore, it is not open to the Government to argue that the case must be dismissed on the grounds that the only remaining need is to issue an act of notification.

39.  The Government arrogates to itself a right to define where the proper boundaries of the dispute lie – but it does not possess this right because precisely the setting of these boundaries is in question. The Government accuses the claimants of illicitly conflating “the process of notifying with the decision to be notified”; but it is just as valid – arguably more valid – to charge the Government with illicitly distinguishing these elements from one another.

Will UK citizenship rights persist after commencement of a step to withdraw?

40.  The Government asserts that the mere commencement of a process of withdrawal would not remove EU rights of citizenship from UK nationals. It states that only an “actual withdrawal” would do so (5:5, 34, 37, 45).

41.  However, this claim is specious for the following reason. Article 50 contains no provision for any reversal of a process to withdraw once begun.  On the contrary, it makes clear that once begun, the process must continue for two years, after which an existing member of the Union ceases to be a member, whatever negotiations do or do not take place during this time and whatever their outcome.  The EU Council has given no confirmation that any cancellation of an initiated process to withdraw would be permissible and is highly unlikely to do so for the reason that the possibility of cancellation mid-way would be open to abuse by a purportedly departing member state as a lever by which to extract concessions from the Union with a view to then remaining on special terms.  It is therefore correct to conclude that a process of withdrawal, once commenced, would be irreversible and would need to be pursued to its point of completion.  Thus, no permissible distinction exists between any “commencement of a process of withdrawal” and an “actual withdrawal”; and therefore, if any withdrawal were to commence, EU citizenship rights would certainly be removed from UK nationals two years later.

42.  The Government further assets that no certainty exists over whether UK nationals would forfeit EU citizenship rights were the UK to leave. It states that “there is presently no way of knowing precisely which, if any, rights or obligations will be removed, varied, or added to by the process of withdrawing from the EU. … [T]he eventual outcome will be dependent upon the effect of the negotiations in which the Government will engage” (16).

43.  However, this assertion is false. Certainty exists on this matter.  The rules of EU membership are clear.  Citizens of a member state either hold EU rights of citizenship or, when a departing state reaches the end of the two-year process, they no longer hold them.  Neither Article 50 nor any other clause of EU law provide for negotiation of alternative outcomes.  EU citizenship rights are not held selectively: either they are held in their entirety or not at all.  The Government refers to negotiations arising from commencement of a step to withdraw but any such negotiations, were they to take place, would concern matters of a very different nature, bearing on trade after completion of a process of withdrawal.

44.  In any case, even if the Government were correct to hold that no certainty exists that UK nationals would forfeit EU citizenship rights after a step to withdraw, no certainty would exist that they would retain them either. Therefore it follows that no certainty would exist on the matter overall; and such a situation would be unacceptable on moral grounds.  The Government would have no moral right in general to subject UK citizens to uncertainty over retention of their own rights as citizens.  And least of all would it have a right to do so when its very case for leaving the polity conferring these rights is unfounded, namely that a decision to leave exists.

45.  Nor would the Government have a right to subject EU27 citizens resident in the UK to uncertainty over retention of their rights of residence, which would be the inevitable consequence of any step to withdraw followed by an attempt at negotiation over UK EU citizenship rights in the EU. This would be contrary to principles of humanitarian law.  Within states that observe them, citizenship rights are unconditional by reason of morality.  They cannot be tied to any principle of conditionality.  If the Government threatened to eject UK EU27 residents in the UK as a device with which to secure retention of UK EU citizenship rights in the EU, it would be acting immorally.  The security of some human lives cannot be traded for the security of other human lives.[22]

46.  Government behaviour since 24 June bodes ill in the above regards. Despite the UK remaining a full member of the EU, the Government has consistently behaved as if the country had already left.  Less than a month after the referendum, it announced that it would resign UK tenure of the rotating presidency of the European Council, set for the second half of 2017.[23]  No authority existed for this action, which has not only deprived UK citizens of an important cultural asset and honour of membership but has also falsely signalled to other member states that some definite decision of the country exists to leave, which is not the case.  Further, within days of the referendum, the Government began consistently to refuse to disburse matching funds necessary for release of regular EU development funds for deprived regions of the UK, including the North East, Cornwall and South Wales.[24]  Again, no authority exists for such action, which was and continues to be grossly contrary to the terms of UK membership of the EU and profoundly damaging to the regions affected.

47.  Is there a sustainable distinction between foreign affairs and domestic affairs relevant to this case?

48.  The Government argues that it can invoke the Royal Prerogative to trigger Article 50 because it did so when the UK joined the then EEC in 1973 and therefore can do so again to leave the EU. It claims that it need not involve parliament in this course because, it claims, such action would pertain to the “conduct of foreign affairs” which is “a reserved matter”.  It argues that “the Crown has repeatedly acted on the international plane” in matters of EU policy that then affect “our domestic legal system”.  The situation is therefore not one in which “parliament has ‘occupied the field’” (5:6, 8:3, 25, 37).

49.  However, the distinction the Government here draws between “foreign affairs on the international plane”, on the one hand, and “domestic affairs”, on the other, is unsustainable in the case at hand. In practice, the two sides of the matter are inseparable.  UK EU-membership is not a pure matter of foreign policy in anything like the same sense as UK diplomatic relations with other states regarding security, military affairs, international law or indeed treaty-making.  It is simultaneously thoroughly a matter of domestic affairs.  The free movement of people, capital, services and goods across nation-state boundaries entails not only international movement but also transnational movement.  That is, it entails not only movement from the governmental centre of one state to the governmental centre of another state but also movement from all sections of the economy, territory and population of one state to all sections of the economy, territory and population of another state.  This is the key feature of contemporary social life captured by the much-discussed term “globalization”.  Diverse states and societies are today knitted together in ways far too complex to permit any simple distinction between the “foreign” and the “domestic” relevant to this case.

50.  The symmetry the Government postulates between entering and leaving the EEC/EU is unsustainable for this reason and for several related reasons. Departure would not be symmetrical to entry because entry to the EEC was an act essentially supplemental to the status quo of the UK in 1973, whereas departure from the EU today would be deeply subtractive from the status quo of the country in 2016.  Entry was an addition; departure would be a subtraction.  The UK needed to surrender no significant part of its acquired state of affairs in 1973. Today, were it to leave, it would need to surrender an enormous part of its acquired state of affairs.  The country is the product of more than 40 years of transformations in the EU whose outcomes bear no comparison to the circumstances under which it joined the EEC.  The present in general is never directly comparable to the historical past for one simple reason of cumulative change over time.  Only with the non-historical and relatively immediate past is any symmetry in the present sustainable, such that it can be meaningful to say that a contract was signed at time t and should be honoured in like fashion at time t + 1.  The difference of these two cases lies in the difference of the validity of the appeal to ceteris paribus.  Only in the latter case is it valid to say: “other things being equal”.

Concluding remark

Throughout its statement, the Government uses language suggestive of contempt for parliament in affairs of our current polity. Although the phrases the Government uses will no doubt have technical legal meanings with which I am not familiar, their tone is disturbing.  It accuses the courts of “trespassing on proceedings in parliament”, despite the fact that all the courts appear quite modestly to be asking for is for proceedings in parliament to take place.  It makes believe that its own “polycentric” matters of “high policy” will be too complex for any assortment of experts to understand other than itself – although, apparently, the question of whether the nation should leave or remain in the EU was not a question too complex for the electorate to understand and to answer on the basis of a simple binary vote.  It speaks of “forbidden areas”, of “reserved matters”, and of tasks of “high policy reserved to the Crown”.  It pronounces the issue of the future rights of citizenship of UK nationals in the event of a decision to withdraw to be a matter “too abstract” for meaningful consideration in the courts.  Such, one would think, is the typical language of an authoritarian state of the past, bent on subsuming the competences of the legislature and the judiciary under its sole executive command – not of a progressive, pluralistic, democratic state of the twenty-first century.

 

Notes

[1] http://researchbriefings.files.parliament.uk/documents/CBP-7212/CBP-7212.pdf (p. 25).

[2] “To give guidance or suggestions, or state one’s opinion, to (a person, etc.) as to the best course of action; to counsel, make recommendations to; (also more generally) to give one’s assessment of something to (a person), usually as a basis for making a decision”. http://www.oed.com/view/Entry/3001?redirectedFrom=advise#eid

[3] https://www.theguardian.com/politics/2016/sep/13/ken-clarke-tory-constituent-brexit-eu-referendum-not-binding

[4] http://blogs.ft.com/david-allen-green/2016/06/14/can-the-united-kingdom-government-legally-disregard-a-vote-for-brexit/  Mr Green wrote: “The relevant legislation did not provide for the referendum result to have any formal trigger effect. The referendum is advisory rather than mandatory. The 2011 referendum on electoral reform did have an obligation on the government to legislate in the event of a “yes” vote (the vote was “no” so this did not matter). But no such provision was included in the EU referendum legislation”.  Mr Green also wrote that in the event of a result favouring leave: “it is a matter for a member state’s ‘own constitutional requirements’ as to how it decides to withdraw. The manner is not prescribed: so it can be a referendum, or a parliamentary vote, or some other means. In the UK, it would seem that some form of parliamentary approval would be required…”.  Further, he wrote: “And if there is a parliamentary vote before any Article 50 notification then there is the potential irony of those seeking to defend parliamentary sovereignty demanding that an extra-parliamentary referendum be treated as binding. But it must be right that the final decision is made by parliament, regardless of what the supposed defenders of parliamentary sovereignty say”.  Further: “A vote for Brexit will not be determinative of whether the UK will leave the EU. That potential outcome comes down to the political decisions which then follow before the Article 50 notification. The policy of the government (if not of all of its ministers) is to remain in the EU”.

[5] http://uk.businessinsider.com/green-eu-referendum-not-legally-binding-brexit-2016-6

[6] http://uk.businessinsider.com/eu-referendum-interview-peter-catterall-on-eu-brexit-2016-6

[7] http://uk.businessinsider.com/report-pro-remain-mps-will-use-majority-to-keep-britain-in-single-market-2016-6

[8] http://www.bbc.co.uk/news/uk-politics-eu-referendum-36457120

Mr Landale reported: “Ministers have told the BBC they expect pro-EU MPs to conduct what one called a ‘reverse Maastricht’ process – a reference to the long parliamentary campaign fought by Tory eurosceptic MPs in the 1990s against legislation deepening EU integration.  Like then as now, the Conservative government has a small working majority of just 17.  They say it would be legitimate for MPs to push for the UK to stay in the single market because the Leave campaign has refused to spell out what trading relationship it wants the UK to have with the EU in the future.  As such, a post-Brexit government could not claim it had a popular mandate for a particular model.  One minister said: ‘This is not fantasy. This is a huge probability’.  Labour frontbenchers say they have also been discussing the option.  One said it would be hard for pro-Brexit MPs to resist the Commons deciding Britain’s future relationship with the EU, as it would demonstrate the principle of parliamentary sovereignty Eurosceptics have been demanding for years.  Stephen Kinnock, the Labour MP for Aberavon, said: ‘If the British people voted to leave the EU that’s one thing.  But can we really say that they voted for the devastation and destruction of the entire exporting sector of our economy? I don’t think you can necessarily say that there’s a democratic mandate for that.’  Pro-EU MPs could use their voting muscle later this year when a post-Brexit Tory government would be expected to put its negotiating plans to parliament.  The government would struggle to negotiate with the EU if it could not secure the support of the Commons.”

[9] https://www.theguardian.com/politics/2016/jun/23/eu-referendum-legally-binding-brexit-lisbon-cameron-sovereign-parliament

[10]http://downloads.bbc.co.uk/aboutthebbc/insidethebbc/howwework/accountability/pdf/summary_audience_information_april_june_2015.pdf

[11] http://aboutus.ft.com/2015/02/27/financial-times-2014-results/#axzz4M7UqpRF3

[12] http://www.newsworks.org.uk/The-Guardian

[13] OED “electorate”: “All the people in a country or area who are entitled to vote in an election” https://en.oxforddictionaries.com/definition/electorate

Historical OED: “The whole body of electors”. http://www.oed.com/view/Entry/60244?redirectedFrom=electorate&

[14] http://www.electoralcommission.org.uk/find-information-by-subject/elections-and-referendums/past-elections-and-referendums/eu-referendum/electorate-and-count-information

[15] “The UK’s decision to leave the EU as articulated in the referendum result” (5:2, 9).

[16] “The executive’s power to decide to withdraw” (12,6); “the decision to withdraw is a matter of high policy reserved to the Crown” (14).

[17] “It is open to lead claimant to contend that …that the Government cannot validly decide that the UK should leave the EU …without the processes of an act of parliament” (10).

[18] “The UK’s decision to withdraw” (15).

[19] The Government is “at least entitled to decide that the UK should withdraw from the EU in accordance with the outcome of the referendum and to give effect to that decision” (12,2).

[20] “Having validly decided that the UK should withdraw from the EU, the Government will give effect to that decision” (12:3).

[21] https://commonslibraryblog.com/2016/07/08/brexit-the-people-vs-parliament/

[22] Cf. John Rawls, A Theory of Justice, Oxford University Press, 1970, p. 4: “Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.  For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others.  It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by the many.  Therefore in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests”.

[23] http://www.independent.co.uk/news/uk/politics/uk-gives-up-presidency-of-eu-council-to-focus-on-brexit-negotiations-a7145801.html

[24] http://www.independent.co.uk/news/uk/politics/european-regional-development-fund-erdf-suspends-treasury-brexit-eu-referendum-a7154526.html

The Brexit result rests on a sleight of hand: it is not 52% but 37%

First point: a referendum is not a general election. It’s a direct popular vote and it’s meant to be for ever, not just for 5 years.

In a referendum, all votes count, and, in principle, so do all citizens with the right to vote – not just the greatest number of votes given for an MP in a given constituency, as with an election.

Therefore it’s no objection to say that if non-turnout had been counted in previous elections, they would all have been invalid or questionable.

 

So, as I see it at this stage, everything false about the alleged mandate for Brexit boils down to this question:

Exactly when is it permissible to ignore non-turnout in a referendum?

It is permissible when the referendum is:

  1. Advisory – no threshold has been set but with Parliament having a say.
  2. Binding – Parliament not having a say but with a threshold set, based on a percentage of all eligible voters (not just of votes cast).

However, it is not permissible to ignore non-turnout when the referendum is:

3.  Advisory but (a) Parliament has no say and (b) no threshold has been set.

 

This is the situation we have. In this situation we have both (a) and (b).

If we had only (b), with Parliament given a say, it would be the same as (1) and would be permissible.

If we had only (a), with Parliament not given a say but with a threshold set, it would be the same as (2) and would be permissible.

But instead we have both (a) and (b).

So when Parliament is not given a say and no threshold has been set, it is illegitimate to ignore non-turnout.

Therefore it is legitimate to count the 28% that did not turn out to vote.

Therefore the true vote to Leave is the 37% of eligible voters, not the 52% of votes cast.

 

The government has been getting away with this because it has been performing a pick-and-mix operation:

It is choosing to take a result from an advisory referendum but not following the rules of an advisory referendum. And it is choosing to follow the rules of a binding referendum but not taking the result that would be yielded under the rules of a binding referendum.

So it is picking the result it likes and the rules it likes, but not the result it doesn’t like and the not rules it doesn’t like.

That is a trick. It is a type of cheating.  It is a legerdemain or sleight of hand.

Why the EU Referendum Provides No Genuine Democratic Mandate to Leave

Leaving aside all substantive issues to do with the social, economic and cultural background to the UK’s EU Referendum of 23 June 2016 and its result and future implications, this article explains why this referendum could and should be considered to be a deeply contested event on purely formal political, legal and constitutional grounds.

The article sets out a number of observations on appropriate conduct of referendums in representative democracies in general, as well as a number of more specific observations on the UK’s EU Referendum in particular.

The article has three sections:

  1. Direct and representative democracy
  2. Legal status of referendums
  3. Thresholds for referendums

 

Summary

  1. Direct and representative democracy. Most modern democracies are almost always representative democracies, even when they occasionally opt to use a direct democratic instrument such as a referendum. When they do, extreme caution must be taken. If a referendum is advisory (with no legal power), parliamentary discretion over interpretation and implementation of a result remains supreme. If binding (with legal power), precise conditions under which Parliament consents to renounce discretion must be specified, most especially in relation to the valid threshold for a majority vote.
  2. Legal status of referendums. Referendums should be presumed advisory unless stated as binding and criteria for implementation specified. Only statute passed by Parliament for a Referendum has legal primacy, not government or governing party literature or ministerial spoken word. In both advisory and binding referendums, franchises for participation must extend to all citizens likely to be affected by a result on a long-term basis, inasmuch as the decision is for a lifetime. Advisory referendums cannot overrule an existing legal state of affairs, unless with the agreement of Parliament to all key steps involved in the process. Binding referendums can do so if, and only if, the power authorising implementation of a result is sovereign.
  3. Thresholds. Binding referendums should specify a threshold and a minimum turnout requirement. For major constitutional change, many modern democracies require a super-majority of votes cast and minimum turnout or, alternatively, set an overall percentage threshold for votes required by eligible voters. Consent of a super-majority of representatives and consent of devolved administrations is also typically required. Long-term change to a long-term status quo places the onus of a result heavily on the vote for change. A status quo is already directly known, whereas change to it is not. Therefore expression of the strength of a desire for change in a vote must be that much more powerful and decisive.

 

  1. DIRECT AND REPRESENTATIVE DEMOCRACY

Direct and representative. When a representative democracy opts to deploy a direct democratic instrument, such as a referendum, extreme care must be taken. If not carefully constructed, and especially when binding, referendums are liable to problems long referred to as problems of the “tyranny of the majority”, where minority interests are disregarded.[1]  This may occur particularly when the majority in question is a marginal one or is no more than a majority of votes cast rather than a majority of eligible voters (i.e. when diminished turnout is ignored).  Modern representative democracies have devised systems to counter such problems, often known as parliamentary “checks and balances”, designed to preserve political pluralism and to counter elements of transient or incoherent emotion that may occur in a popular vote with long-term consequences and without possibility of considered redress at a periodic general election. These checks and balances are expressed further in the competence of representatives not only to represent voter opinion but also to judge in the general national interest, including sometimes with the assistance of an advisory upper chamber (the House of Lords in the UK).  Representatives do not automatically implement popular opinion.  They retain the right and the duty to take decisions in the general national interest, even if unpopular with some voters.

Parliamentary sovereignty. In representative democracies, sovereignty of the people is represented in Parliament. It is never delegated to the people directly and absolutely, other than in a binding referendum.  In its sovereign representation of the people, Parliament is supreme above (i) the Crown or the executive state and (ii) the people themselves, other than in a binding referendum.  Abrogation of Parliament’s sovereign representation of the people, in either of these two regards, may be considered, in any degree of severity, despotism or dictatorship.

Failures of direct democracy: specific. When a representative democracy decides to pass sovereignty temporarily to the people on a direct and absolute basis, as in a binding referendum, it must specify, very clearly, a vote threshold and a turnout threshold for a result to be implemented in law (see further below). If a representative democracy conducts a merely advisory referendum, Parliament must meet speedily after the poll in order (i) to interpret the result and (ii) to decide on its advisability for implementation in law, with due regard to the general national interest.  Any further implications of a result should not be considered before this primary parliamentary meeting has taken place.  If a significant length of time is allowed to pass before such a meeting occurs, the status of the result in the mind of the people becomes unclear.  For some, it may appear increasingly set in stone; for others it may appear increasingly doubtful.  An advisory referendum cannot be considered a completed event until such a debate has taken place and a decision has been agreed.

Failures of direct democracy: general. In modern democracies since the 20th century, representatives typically face intense pressure to appear popular in the public mind.  Popularity, however, is not always responsibility to the nation, and should not be mistaken for it.  In competition with one another and with other parties, representatives can feel tempted to make frequent appearances in the mass media that garner popularity, sometimes even to the point of making promises not supported in legislation or not likely to be supported, raising false expectations in the minds of the people.  Confronted sometimes with widespread opprobrium cast on them as members of an allegedly out-of-touch “elite” or “establishment”, they face pressure not to exercise independent discretionary judgment but to execute popular opinion directly.  They must resist this pressure; they are political professionals, and their capacity for skilled and informed judgement is one key ingredient of the quality, maturity and intelligence of political life in a nation.

 

  1. LEGAL STATUS OF REFERENDUMS

Advisory and binding. Referendums must be presumed advisory unless stated as binding and criteria for implementation are specified.

The AV and EU Referendums compared: in Briefing Paper 7212. Section 5 of this document, published by the House of Commons, describes the 2011 Referendum on AV as a binding one and the 2015 Referendum on EU Membership, by contrast, as a merely “pre-legislative or consultative”, i.e. advisory, one.  It states: “This Bill … does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution.  In contrast, the legislation which provided for the referendum held on AV in May 2011 would have implemented the new system of voting without further legislation […]”[2]

The AV and EU referendums compared: in statute. The above distinction is directly reflected in the text of the two Acts. Section 8 in Part 1 of the Act for AV is headed: “Result of the Referendum – Commencement or Repeal of Amending Provision”.  Paragraph 1 states: “the Minister must make an order bringing into force” the system of AV if a simple majority vote is received in favour of it (commencement).  Paragraph 2 states: the Minister “must make an order” not for AV if the result received is below simple majority (repeal); and paragraph 3 states that if the result is above simple majority, the Minister “must … bring into force [the order] on the same day” of receipt.[3]  By contrast, the 2015 EU Referendum Act contains no section on result; implementation of result; non-implementation of result; or timetable for implementation of result.[4]

Legal status of government word concerning referendums. Government statements about a referendum have no legal status superior to statute passed by Parliament. Statute for a referendum is legally supreme, even when a referendum is merely advisory and ascribes no legislative authority to a result received.  Therefore, governments should refrain from making statements or promises to the public about the legal status of a referendum until there is a statute for the referendum, and then only in accordance with the terms of that statute. If statute for a referendum is, or likely to be, only of the advisory rather than binding type, governments should not speak of it to the public as binding. They should be explicit that it is, or is likely to be, only of an advisory nature. If the referendum is not binding, governments have no legal power to issue promises such as those expressed in the words “We will implement what you decide” (as with UK Government leaflet, delivered to all UK households, 11-13 April 2016, concerning the EU Referendum), or vow orally to implement a result by a certain date.[5]  Such statements are at best misleading, at worst deceitful, and possibly illegal.  Nor should Parliament as a whole collaborate in broadcasting such statements.  Parliament cannot consent to anything more than that which it has passed on behalf of the people, and should not behave as if it has done so.

Franchise. A referendum is potentially a decision for an entire lifetime, not just for 5 years, as with a general election. Therefore, in all referendums, a franchise should extend to all citizens likely to be affected by a result on a long-term basis.  It should include: 16/17-year olds (only 1 or 2 years away from formal maturity); ex-pats, irrespective of number of years already resident abroad, who may wish to return at some point within their lifetime; and other sectors of the population such as long-term non-national residents with rights of residence such as EU-27 citizens, who should have the right and necessary time to take appropriate measures before a result.  In such cases, it would be reasonable to apply criteria such as a minimum of 5 years residence, or marriage to, or parenthood of, a UK national.  In the case of the EU Referendum, EU-27 citizens resident in the UK on a long-term basis before the General Election of 2015 could not have known that the Conservative Party’s promise of a referendum would become government policy and therefore could not have been obliged to adopt UK citizenship after this point merely as a condition for participation.  It is inconsistent that the franchise extended to resident Commonwealth and Irish citizens but not to EU-27 citizens.  Irish citizens are EU-27 citizens; therefore, all other long-term EU-26 citizens should have been granted the same right.[6]

Legal scope of referendums. A result of an advisory referendum cannot abrogate an existing legal state of affairs, unless agreed by sovereign Parliament. A result of a binding referendum, or a result of an advisory referendum accepted by Parliament for implementation, can do so if, and only if, the power authorising implementation is sovereign over all other bodies of law affected by it.  In the case of the result delivered for the Referendum on EU Membership, at least three bodies of law will be affected if implemented, or deemed to merit implementation; and the question remains open at present as to whether UK law-making power in Westminster is indeed sovereign over them:

EU citizenship rights. Through Article 50 of the Treaty of Lisbon, UK law has the power to abrogate the sovereignty it currently shares with the EU.  However, it is not clear that it has the power to abrogate individual citizenship rights enjoyed by UK EU-citizens (resident in the UK or in the EU-27) and by non-UK EU-citizens (resident in the UK) in virtue of the UK’s current membership of the EU.

Devolved administrations. The question also remains open as to whether UK law-making power in Westminster has the power to abrogate the limited sovereignty it has devolved to Scotland and Northern Ireland since 1998.

 

  1. THRESHOLDS

Thresholds. Binding referendums must specify a threshold and a minimum turnout.

High thresholds. For major constitutional change, most representative democracies require not a simple 1/2 majority but a 2/3 super-majority of votes cast and minimum turnout. Consent of a super-majority of representatives and of devolved administrations is also typically required.  Alternatively, a high percentage threshold is specified for the overall electorate, covering both votes given and not given by eligible voters.  If a decision is of enormous consequence, potentially affecting an entire population for many years to come and removing rights of citizenship previously held, reason should exist for specifying not just a high but a very high one.

Thresholds in the UK and other countries. Government Standard Note PC02809, entitled “Thresholds in Referendums”, published on 29 June 2011, explains the use and non-use of thresholds in previous UK referendums and in other national systems in Europe and further afield.  This document is presumably well-known to MPs and required reading in the drafting and debating of any piece of legislation concerning the holding of a referendum.  The document explains why thresholds can be difficult to set and have been often resisted in previous UK referendums; and it sets out the most basic reason for this in table form on p. 13, namely that, in principle, referendums in the UK are, in contrast to some other countries, “consultative” rather than binding.  Nevertheless, the document opens with the following key statement of rationale: “Discussions of the need for, or advantage of, some form of threshold usually arises in the context of ensuring the legitimacy and acceptance of the outcome of a referendum exercise. This incorporates the idea that major constitutional change is something more important than the result of ordinary elections, and therefore should be the result of something more than a simple plurality of the votes”.[7] Briefing Paper 7212 adds the further sentence: “The UK does not have a comprehensive written constitution and so any requirement for a threshold has to be included in the individual referendum legislation”.[8]

Onus of the vote for change. High thresholds follow from a principle of the onus of a result on the vote for change, not on the vote for status quo.  If a long-term constitutional status quo is to change on a long-term basis, the onus must fall exclusively on those who want change to convince a significantly large number of other people that it is worth having.  No onus to vote falls on those either content with the status quo or lacking in any great objection to it.  Satisfaction or lack of objection can quite properly be presumed from the very existence of the status quo as a part of everyday life.  It is illegitimate of a democratic government to coerce voters content with the status quo or less discontent with it than with the proposed change to vote for it actively, especially if they had no control over the appearance of such a proposal.  The very occurrence of a referendum may not have been willed by a majority of the electorate in a preceding general election, or even by a majority of popular votes cast in that election, but only by voters for the party promising the holding of a referendum in an election manifesto and subsequently elected to government (on a first-past-the-post system).  Moreover, a fundamental asymmetry obtains between a status quo and a proposal for change, which is that the former is already directly known and practically experienced by everyone, while the other is not – by anyone.  The one is a reality, while the other is nothing more than a proposal.  The one has all the authority of everyday relative certainty and predictability behind it, while the other is at best something known theoretically.  Any projected change must, at the very least, be carefully researched, planned and transparently presented to voters; and even then, it cannot, in the nature of things, carry the same weight of certainty as the status quo.  If an entire country is to risk substituting a state of affairs it does not and cannot know directly for a state of affairs it does know directly already, the onus of the risk must fall exclusively – and heavily – on the vote for change.[9]

Turnout. The principle just described also governs the appropriate treatment of below-threshold turnout in a referendum. If diminished turnout occurs, no consent of the people to change can be presumed. If a government cannot know the minds of eligible voters who do not turn out to vote, it is less presumptuous of a government to treat votes not given as consent a state of affairs directly known than it is to treat them as consent to a state of affairs not directly known.  A government cannot ignore non-votes, i.e. votes not given by eligible voters: if it recognises turnout thresholds as meaningful at all, it must, in principle, count non-votes rather than not count them at all; and, by least presumption, it is less illegitimate of it to treat them as indicative of consent to status quo than it is to treat them as indicative of consent to change.

 

CONCLUSION

  1. The EU Referendum Act specified neither a majority threshold (not even a simple one) nor a minimum turnout. It specified no criteria and no timetable for implementation of a result.  Therefore it must be assumed to be a merely advisory referendum, its result still pending parliamentary interpretation and judgement as to advisability for national policy and implementation as law – exactly as stated in Commons Briefing Paper 7212, section 5, and reflected in legislation.  However, thus far (date of writing: 4 September), no meeting of Parliament has occurred – nearly two and a half months since the referendum took place.
  2. If this referendum should in some way be taken to be a binding one, it is impossible to see how its result by itself could be a valid mandate for implementation in law. The result is widely thought to be defined by a 51.9% vote for Leave and a 48.1% vote for Remain.  However, these percentages express only the proportions of actual votes cast.  If votes not cast by eligible voters are counted – as they rightly and properly should be in a referendum of this type – the true result of this referendum is the following: 37.4% for Leave, 34.7% for Remain, and 27.9% non-turnout.  Therefore, whether by voting or by not voting, 62.6% of the electorate indicated no wish to Leave the European Union on 23 June 2016.  This does not mean that a majority of the electorate voted to Remain.  But it does mean that only a minority of the electorate (37.4%) voted to Leave.
  3. The figure of 37.4% of the electorate for Leave may be seen as further diminished when percentages for wrongfully non-enfranchised classes of voters are included in the distribution.  The figure falls to approx. 26% when both 16-17 year olds and EU-23 citizens are included (25% + 5% respectively), and still further when a percentage for over-15 year non-resident ex-pats is calculated.  (EU-23 refers to citizens of all 28 member states of the EU except the recently acceded states of Croatia, Romania and Bulgaria, + Ireland + UK.)  Nor could even this resultant overall percentage for Leave be seen as taking due account of the fact that only a minority of the electorate consented to the holding of a referendum in the first place, by voting for the Conservative Party in 2015.
  4. Lack of a turnout threshold, depriving voters of any means of expressing principled abstention. may have unduly shifted the onus that should have fallen on the vote for change back onto the vote for status quo instead. Some may have reluctantly voted to Remain in order to forestall Leave, but others may have felt such reluctance as not to vote at all – enabling Leave to “win” on a mere simple majority of votes cast, the 27.9% non-turnout not being accorded any mitigating weight at all.  Further, as widely noted, no concrete details or plans underpinned the option for Leave on the ballot paper.  All that appeared was a blank negation, almost certainly encouraging wishful thinking, projection or disengagement (a “two fingers to the establishment” attitude).  The wording of the two options on the ballot paper may also have predisposed voters toward Leave, the Remain formulation containing 7 words, including 2 genitives, a largely redundant noun (“member”) and a verb laden with negative connotations (“remain” – as in “remains”: vestiges, ruins or “left-overs” of something).  Leave, on the other hand, involved no more than 4 simple words – a formulation that so easily could have been mirrored on the other side by: “Stay in the European Union”.[10]
  5. One final question remains: why has this apparently merely advisory referendum nevertheless been treated publicly by the Government so far as a binding one, its result ready for implementation in law, without any need for prior authorization by Parliament? And, it must be asked: how could its result – a mere 37.4% minority vote of the electorate – be treated as binding, without fundamental violation of constitutional principle, indeed of the basic concept of democracy, representative or direct?

 

[1] Cf. James Madison, The Federalist Papers (1787), Article 10: “The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection”.

https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-10

[2] http://researchbriefings.files.parliament.uk/documents/CBP-7212/CBP-7212.pdf

[3] http://www.legislation.gov.uk/ukpga/2011/1/part/1/crossheading/result-of-the-referendum/enacted

[4] http://www.legislation.gov.uk/ukpga/2015/36/contents/enacted

[5] Full text: “The referendum on Thursday, 23 June is your chance to decide if we should remain in or leave the European Union. The government believes it is in the best interests of the UK to remain in the EU.  This is the way to protect jobs, provide security, and strengthen the UK’s economy for every family in this country – a clear path into the future, in contrast to the uncertainty of leaving.  This is your decision. The government will implement what you decide.” https://www.gov.uk/government/publications/why-the-government-believes-that-voting-to-remain-in-the-european-union-is-the-best-decision-for-the-uk/why-the-government-believes-that-voting-to-remain-in-the-european-union-is-the-best-decision-for-the-uk

On 9 June 2015, in the House of Commons, Mr. Hammond also stated: “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”. https://hansard.parliament.uk/Commons/2015-06-09/debates/15060939000001/EuropeanUnionReferendumBill.

[6] These issues were raised in the House of Commons on 9 June 2015. Mr Hammond replied:

“The Bill also sets out the entitlement to vote in the referendum. Since this is an issue of national importance, the parliamentary franchise is the right starting point. It means that British citizens in the UK or resident abroad for less than 15 years and resident Commonwealth and Irish citizens can take part. […]

Some will argue that we should extend the franchise further to 16 and 17-year-olds, perhaps, or even to citizens of other EU countries resident here. We do not agree. This is an issue of national importance about Britain’s relationship with the European Union and it is right that the Westminster parliamentary franchise should be the basis for consulting the British people. I concede that there are those in the House who will wish to debate whether that franchise itself should be extended to 16 and 17-year-olds, but the Government are not persuaded and that is a debate for another day. It would be wrong to include 16 and 17-year-olds in this referendum as an addition to the Westminster franchise. / I reject, too, the suggestion that EU citizens living in the UK should be included. The referendum is about delivering a pledge to the British people to consult them about the future of their country. It would be a travesty to seek to include EU nationals whose interests might be very different from those of the British people”. https://hansard.parliament.uk/Commons/2015-06-09/debates/15060939000001/EuropeanUnionReferendumBill

[7] http://researchbriefings.files.parliament.uk/documents/SN02809/SN02809.pdf (p. 13).

[8] http://researchbriefings.files.parliament.uk/documents/CBP-7212/CBP-7212.pdf (p. 26).

[9] Cf. Jon Elster, Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints, Cambridge University Press 2000, pp. 1-174.

[10] This point is made in a trenchant and widely read article of 18 July 2016 by the digital and social marketing consultant Mike Hind. His criticisms are directed to the pro-Remain campaign.  But ultimate responsibility for this lies with Government, in the drafting of the ballot paper.  https://www.linkedin.com/pulse/epicfail-how-britain-stronger-europe-blew-basics-pr-marketing-hind