14 July 2016

Brexit aftermath: an advisory referendum?

There seems to be some debate over whether or not the Brexit referendum was always intended to be advisory rather than binding. Yesterday, for instance, a friend told me on Twitter, "And that 'advisory' caveat has only emerged since folk have wanted to reverse/ignore [the poll result] -- we heard no talk of it before the referendum, or when Remain were strong favourites."

He's not been alone in taking this line, but I think this may be a case of "what you hear depends on who's doing the hearing", because I'd certainly heard and understood that the Brexit referendum, unlike, for example, the AV one, was purely advisory, such that regardless of the result it would be for Parliament, which in British democracy is sovereign, to decide whether or not the UK would leave the EU; individual MPs could and should take the referendum result into account in deciding how to vote, but they would not be bound by what was going to be, in effect, a glorified opinion poll.

Here is The Guardian, for instance, reporting in February that "Legally the referendum is advisory but in practice it is binding, and may even prompt the resignation of the prime minister." There's a distinction here between legal and political realities, of course, and the latter need serious pondering, but there's a clear statement that as a matter of law the referendum was to be an advisory one. 

Business Insider, more than a week ahead of the referendum wrote that "Parliament doesn't actually have to bring Britain out of the EU if the public votes for it. That is because the result of the June 23 referendum on Britain's EU membership is not legally binding. Instead, it is merely advisory, and, in theory, could be totally ignored by the UK government."

And around the same time, David Allen Green was writing for the Financial Times that, "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. What happens next in the event of a vote to leave is therefore a matter of politics not law. It will come down to what is politically expedient and practicable."

Also in advance of the Referendum, the Telegraph reported that, "A spokesman for the electoral commission said that as the result was an advisory election, rather than a binary one, it was a matter for the Commons.

'It's an advisory referendum so Parliament is likely to advise but it's a matter for the Government,' he said. 'It's what's referred to as an advisory rather than a binary result.'

That piece also quoted Nigel Farage as recognising that a 52-48 outcome would be anything but decisive, saying, "In a 52-48 referendum this would be unfinished business by a long way. If the Remain campaign win two-thirds to one-third that ends it."

Ahead of the Referendum, The Week wrote that, "In the extremely unlike result of a mathematical tie, it seems likely that Parliament would decide the matter – not least because the referendum is not, in fact, legally binding."

Strikingly, on the day of the Referendum, the Israeli daily Haaretz asked "Is the referendum binding?
" and answered "No. Parliament isn't legally required to abide by the vote, but there would be strong political pressure to do so, especially if the result of the referendum is clear-cut."

I'm not saying that the fact of the referendum being a non-binding advisory poll was sung from the rooftops in the run-in to the vote. I am, however, pointing out that this fact wasn't invented -- even in the old sense of 'discovered' -- in the aftermath of the vote or even when things were looking bad for the cause of remaining in the Union.

Let's face it, if the Israelis knew well before the votes were in that the referendum was  not something that parliament would be obliged to implement, but only something to be engaged with and take into account rather than be obliged to implement, any English voters who didn't to grasp this only have themselves to blame.

What happens next is a matter of politics, not law. The fact that an English majority a few weeks back said they wanted to leave the EU is an important political reality. It's not the only one.

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