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