Parliament passed an Act for the holding of a referendum on EU membership but this Act did not itself provide for any result of the referendum to be implemented in law, if different from the status quo. When the Government said, in its leaflet to UK households, “We will implement what you decide”, it was not legally empowered to say this. When it said this, it took a huge risk. Why did it dare? Most likely because it did not expect Leave to win. Now it is stuck with a result it cannot legally implement, unless it gets the consent of Parliament, which it knows it is unlikely to get, which is why it is threatening to use the royal prerogative.
But did Leave win? The answer, actually, is NO. Leave won only a majority of votes cast (52%), not a majority of votes of the electorate. This was 37.4%, with 34.7% for Remain and 28% not voting. If Parliament had passed an Act for a referendum providing for a result to be implemented (different from the status quo), the Act would have required a threshold for a valid majority, and this threshold would have had to take into account all voters not turning out to vote on the day. The Government probably calculated in advance that if such an Act had been passed, the Leave side wouldn’t have had any chance of coming near to the hurdle, and so there wouldn’t have been any point in holding a referendum at all. So it instead it passed an Act for a non-binding type of referendum in which no threshold was specified. This made it much easier for the Leave side to carry out a campaign.
But the truth remains that this non-binding referendum does not provide by itself for any result to be implemented in law. The Government is trying to tell us that 52% of votes cast is the same as 52% of the electorate. It is not. This is a lie. The truth is 37.4%. 52% seems to be a result it can implement but this percentage is false. The Government is using a result from one type of referendum (non-binding) and treating it as if it can be applied under the rules of another type of referendum (binding). It cannot. This is a gross deception. It’s cheating. It is like saying that a 2:0 win by a football team in the bottom tier of a league is the same as a 2:0 win by the same team in the top tier of the league. It is not!
The Government probably did this to gain votes from UKIP and gambled that the overall effect would not be such as to go over 50% of the votes cast. It miscalculated and is now doing all it can to cover up the lie it’s been telling and continues to tell to the UK public – the lie that it can automatically implement a mere majority of votes cast in a non-binding referendum as if it were a majority vote of the electorate in a binding referendum. It cannot. IT IS BREAKING ITS OWN LAW.
If there was no lie, i.e. no intention to deceive, how could the Government have prepared such a poorly drafted piece of legislation? How could it have been so careless on such a profoundly important matter? Alternatively, if the legislation is indeed solid – and, on the face it, it seems to be in what it says, even if not in what it doesn’t say – how could the Government have allowed itself to refer to it so carelessly, speaking of it to the public as binding when it in fact isn’t?
And what of Parliament’s role in all this? How could Parliament have allowed the legislation to pass or allowed the Government to refer to it in this way? Surely Parliament had a responsibility to check it or to check the veracity of the Government’s claims about it to the people of the UK.
A key question remains for us all: is the Government entitled by law or by constitutional principle, even if unwritten, to apply a First Past the Post rule in a general election to a referendum which isn’t binding in statute?
These questions are incredibly important – because the fact remains:
On 23 June 2016, 62.6% of the UK electorate did not vote to leave the European Union. Only 37.4% did.