A brief note on the EU Referendum

Ilaine Foster
Senior Lecturer in Law at the University of Hertfordshire 

With the current media discussion of post -‘Brexit’ consequences, there is considerable legal uncertainty about what exactly will happen next. The general public prior to the vote appeared to see a “Leave” vote as a fait accompli and that things would change immediately. As there is no precedent for a country leaving the EU; the actual process of such a decision is new territory. The European Union Referendum Act 2015, which provided for the holding of the referendum, was silent on what the consequences of a vote to leave would be.  There are current legal concerns from the legal community regarding legal nature of the referendum.[1] In most countries, referendums are non-binding due to issues of sovereignty, although in some countries such as Austria, Sweden and Iceland, referendums which are binding on the government are possible. Thus the status of the current UK referendum result has to be considered in the context of our own unwritten constitution and constitutional law.

A referendum is described in the Oxford Dictionary as ‘A general vote by the electorate on a single political question which has been referred to them for a direct decision’[2]. This can result in a change in an existing or a proposed law. The meaning of the word ‘Referendum’ is derived from the Latin verb ‘refero’, which means ‘something to be brought back or referred’ [3] thus bringing the question back to the people and reinforcing democracy. This ideal of democracy in which people decide through voting on policy initiatives directly, differs in reality, as the majority of modern Western-style democracies are ‘representative democracies’, i.e. countries in which the power is held by elected representatives. In the United Kingdom, referendums[4] need to be understood in the context of our own representative democracy, as governed by our sovereign Parliament, together with the principle of ‘Parliamentary Sovereignty’ – something which was at the heart of the debates concerning the need for the referendum.

Under this key constitutional principle, Parliament is the highest law maker in the United Kingdom and the extent of the concept is unlimited, except by the fact that the principle of sovereignty is a continuous one. Each Parliament is endowed with the same level of sovereignty. Thus the only limitation on a Sovereign Parliament is that it cannot bind its successors.

This constitutional principle will therefore have an impact on the status of a referendum result. A referendum poses a question to the populace for a decision, usually in the form of a question which offers the voters the chance of accepting or rejecting a proposal.[5] What should be borne in mind, however, is that in the United Kingdom the answer to such a question and the result of a referendum, whilst reflecting the will of the people, does not have any legally binding effect unless specifically provided. This is because of Parliamentary Sovereignty. The effect of this principle means that the government can ignore the results of a referendum and thus with the result of the recent EU referendum to leave the EU, they could choose not to pass a law to repeal the European Communities Act 1972 (hereinafter “ECA 1972”), through which EU law became applicable on a domestic level in the United Kingdom.  Similarly, if the result of the referendum had been to stay in the EU, the government could again choose to ignore the result and repeal the ECA 1972 and thus remove the applicability of EU law in this country. This is simply because Parliament is sovereign and can thus legislate as it wishes.

Even if the referendum result had been to stay in the EU, and Parliament did not repeal the ECA 1972, legally, any Parliament in the future could reverse such a decision approved by referendum, and repeal the act, again because the concept of parliamentary sovereignty means no Parliament can prevent a future Parliament from amending or repealing legislation. Sovereignty, and the perceived loss of it as caused by our membership of the EU, is of course at the heart of the current debates over whether to leave or remain a part of the EU. Yet this principle gives Parliament supreme power, even to the point of ignoring the wishes of the electorate if it so chooses.

It must be remembered, however, that when we talk of the ‘Sovereignty of the UK Parliament’, we are talking about the absence of any legal limitations on its sovereign powers to legislate as it wishes.[6] The absence of any legal limitations are not, of course, the only considerations for the government of the day. The wishes of the people together with political, social, moral and practical matters are key to any decisions taken by this or any future Parliament, whatever the legal rights of such parliament, as defined by our unwritten constitution, might be. As succinctly put by Lord Denning: “…legal theory must give way to practical politics”.[7] Thus clearly whilst Parliament remains sovereign and can decline to act in response to the referendum result, choosing to legislate contrary the wishes of the electorate as demonstrated through a referendum is a dangerous path to take, and the government must be prepared to face the potential consequences of a refusal to follow the leave vote at the next election.

Many argue that such refusal to respond to the ‘leave’ vote would be ‘undemocratic. It must be remembered, however, that we are a ‘representative democracy’, where the electorate has given their representatives a mandate to make decisions on their behalf. Such decisions are made on the basis of enquiry, consideration and debate before legislation is made, and are to be made in the best interests of the electorate as a whole. The referendum may be considered to be simply part of the enquiry before decisions as to legislation are made, an approach which may well be supported by those who the media report voted to leave, but who now seem to regret their vote, and feel that they were unaware of the ‘real consequences’ of a leave decision.

 

[1] See the full text here http://www.independent.co.uk/news/uk/politics/in-full-the-letter-from-1000-lawyers-to-david-cameron-over-eu-referendum-brexit-legality-a7130226.html

[2] http://www.oxforddictionaries.com/definition/english/referendum

[3] Ibid

[4] There have been 12 referendums held by the government of the United Kingdom since 1973, the most notable being the two UK-wide referendums, the first in 1975 on the continuance of the United Kingdom’s membership of the European Economic Community and the second held in 2011 on the alternative vote system.

[5] This is not always the case, however, and multiple choice referendums can occur in some countries which offer the voter a variety of options from which to decide. For example the referendum that took place in New Zealand in 2015 to decide on which national flag should be used and in which Voters were asked to rank the 5 flag alternatives from most preferred to least preferred.

[6] It should be remembered that the EU referendum was ‘advisory’ only. The question provided for only two answer options to the referendum question – to leave or remain. The relevant legislation did not contain any provisions imposing obligations on the government to pass legislation to reflect a winning ‘yes’ vote as was included in the 2011 referendum on changing the electoral system to Alternative Vote.

[7] Blackburn v AG [1971] EWCA Civ 7

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