In an extract from his new book, Democracy and Its Crisis, AC Grayling (New College of the Humanities) argues that MPs were made aware the referendum result was non-binding. In addition, the franchise deliberately excluded groups with a direct interest in the result. Only 37% of those eligible to vote in the referendum backed Brexit. The EU referendum, he concludes, was gerrymandered.
The Brexit referendum is an example of how the constitutional and political order of the UK is in a highly questionable state. Without over-exaggerating, it is arguable that the EU referendum itself and the government’s subsequent actions resemble something like a coup – a strong claim; but allow the following details to speak for themselves.
The referendum franchise excluded – after discussion of the matter prior to introduction of the EU Referendum Bill in Parliament – 16- and 17-year-olds, expatriate British citizens who had lived abroad for more than a certain number of years, and EU citizens resident in the UK and paying their taxes there. It would seem obvious that all three groups should have been included as having the most material interest in the outcome of the vote. In the franchise for the Scottish independence referendum of 2014, 16- and 17-year-olds had the vote and so did EU citizens resident in Scotland. No threshold was specified for the outcome of the referendum, unlike the 1979 Scottish devolution referendum which required that 40% of the entire electorate should be in favour for any change to take place.
A House of Commons Briefing Paper 07212 (pdf download), published on 3 June 2015, pointed out to MPs, members of the House of Lords and other readers that the referendum was advisory only, and would not be binding on Parliament or government. This point was iterated viva voce by the Minister for Europe in the debate in the House of Commons later that month. This was the reason given for not including a threshold and for not extending the franchise appropriately. The outcome was that 37% of the restricted electorate given the franchise for the referendum voted to leave the EU. This outcome is by any standards insufficient to justify a constitutional change so significant as the UK’s exiting the EU. There is scarcely any civilised state in the world where a simple majority, let alone a small one, would permit this: for such a change, a supermajority would be required, of 60% or 66% either of votes cast or the entire electorate. Yet a small minority of actual votes cast, representing 37% of the total electorate, was taken by the politicians in favour of Brexit as not merely justifying but mandating the actions they took following the referendum. There is therefore nowhere near enough justification or legitimacy for a Brexit.
The Brexit ministry empanelled after the referendum sought to trigger Article 50 of the Lisbon Treaty notifying EU partners of an intention to leave the EU, without a parliamentary debate. It had to be taken to court to oblige it to respect the constitutional sovereignty of Parliament. In response, and arguably in contempt both of what is meant to be Parliament’s role and of the intention of the Supreme Court judgment, the government introduced a very short Bill of a few lines to hasten through Parliament, with restricted time to discuss it, and a full threeline whip to ensure that its own MPs, whatever their real views, would vote for triggering Article 50 despite any argument, facts, considerations or warnings that might come up in the hurried debate. In the House of Commons in the debate on the EU Referendum Bill the Minister for Europe, David Lidington, told the House that ‘the legislation is about holding a vote; it makes no provision for what follows. The referendum is advisory’ (Hansard for 16 June 2015). Yet the Brexit ministry has chosen to treat the referendum outcome as binding and mandating, in defiance of the explicit nature of the Referendum Act itself.
This and the inconsistencies of this referendum with other referenda raise a serious question of constitutional propriety. To arrange things as convenient for a given occasion – in effect making them up as one goes along – without any question of conformity to a due process and a propriety of constitutional order, throws the legitimacy of the process into doubt. This applies in a major way to the EU referendum in 2016.
It is relevant to recall that the 2016 EU referendum was not necessitated by any crisis in the EU or in the UK’s relations with its EU partners; there were no threats or problems arising from EU membership, other than those alleged (and alleged for over 40 years of anti-EU activism) by ‘Eurosceptics’ and politicians on the right of the Conservative Party and UKIP. It was in fact an effort by the then leadership of the Conservative Party to stifle temporarily a long-standing quarrel within that party. During the previous coalition government David Cameron promised a referendum, against the advice of his senior colleagues, to silence the far right of his party, which was engaged in its usual procedure of making life difficult as they had done for every Conservative Prime Minister since 1972. Cameron almost certainly did not expect to win the election of 2015, still less with an outright majority. He had offered the referendum as one might offer a bone to quieten barking dogs. When he won a majority in the election, he was obliged to honour the promise. Neither he nor anyone else, including the pro-Brexit camp, expected Leave to ‘win’, so he culpably allowed the Brexit faction to arrange the franchise in a way that best suited them – this being the exclusion of sixteen- to seventeen-year-olds (Cameron subsequently said that insisting on their inclusion would have caused too much trouble with his right wing), expatriates, and EU taxpayers in the UK, who between them would have assured a significant Remain majority, a fact the Brexiters well understood.
Deliberate restriction of the franchise is gerrymandering: the EU referendum was gerrymandered.
This post represents the views of the author and not those of the Brexit blog, nor the LSE. It is an edited extract from A C Grayling’s new book DEMOCRACY AND ITS CRISIS, out now from Oneworld in hardback, £14.99.
Earlier versions of this blogpost may contain small inaccuracies which have been corrected in the text above. The House of Commons Library has asked us to publish the following comments:
House of Commons Library Briefings on bills are prepared to support MPs in preparing to scrutinise and debate legislation. They are not Government papers making authoritative statements about the purpose of legislation; the papers present analysis of the legislation as it is introduced to Parliament and provide commentary and background information. The briefing paper in question hence did not ‘tell’ parliamentarians that the referendum was advisory only, but pointed out that the bill did not include provision to implement the referendum result.
Section 5 of the briefing paper distinguishes between two types of referendum: pre-legislative or consultative, and post-legislative. Legislation to provide for the former type of referendum does not include provision to implement the referendum result, while legislation to provide for the latter type of referendum does. The terms “non-binding” and “advisory” are not used in this section.
Section 6 of the briefing paper discusses the use of thresholds in previous referendums held in the UK and some other countries. It does not suggest that a supermajority threshold would be required if the referendum was post-legislative. This statement is not only factually incorrect but also misrepresents the nature of House of Commons Library briefing papers; these papers are written by impartial parliamentary officials and while they present analysis of legislation introduced in Parliament, they never suggest (potentially politically contentious) changes to the legislation.
> Deliberate restriction of the franchise is gerrymandering: the EU referendum was gerrymandered.
Surely Professor Grayling should be more careful about language here? As I understand it, his objection is not that the franchise, the normal one used in elections to Westminster, was restricted, but that it was not extended to include more EU-friendly population groups before the referendum. I’m not sure that this is anything to do with the Governor Gerry in whose honour the word was created.
I do have an axe to grind here, I am one of the EU expatriates excluded from this vote and I think I would have probably voted for Remain if I’d had the chance. But I would prefer it if Remainers had shown more enthusiasm for expatriate voting rights before the referendum, or would use their outrage in support of the Votes for Life Bill now.
His objection is that the franchise was ABNORMALLY restricted on purpose, and under the argument was that it was okay because the referendum was advisory and without threshold.
I agree with him this is a quasi-coup.
But it WASN’T abnormally restricted. It was the usual franchise used in all UK elections and, with one exception, all previous UK referenda. To claim that it was restricted in any way is simply dishonest.
You’re mistaken when you say that the population allowed to vote was the same of “all UK elections”. It was the same of Parliamentary elections but restricted when compared to Council elections where all residents can vote and especially compared to the nearest precedent that was the Scottish Referendum as mentioned in the article. There are two parallel electoral registers in the UK, one for the administrative elections and one for Parliament, it was a political choice to choose one over the other. My feeling is that David Cameron in his wish to pacify his rightwing side decided against allowing EU citizens residents in the UK to vote for the Referendum.
Non UK, EU nationals are allowed to vote in the UK. Every year we have elections where they are included in the franchise. Considering that the decision made would impact most on the non-EU nationals (and UK EU nationals in other EU countries), then it makes a mockery of the process to exclude them. The argument about 16-17 year olds is less powerful.
More to the point is that the government have decided to implement a non-binding result which failed to reach the threshold that many unions need to call a one day strike, as if it were the ‘clear will of the people’.
The result was unclear, there was definitely no mandate to do anything from the consultative process, yet somehow this has morphed into a hard stance where the government claim that the UK has chosen to break all ties with the current structures (Euratom wasn’t on the ballot, the Leave Campaign offered the Norway model along with many others during the campaign, Boris himself stated that nothing would change). To compare, the actions taken since June last year would be the equivalent of Cameron taking a similar 37% of the population voting to remain as the ‘will of the people’ for joining Schengen, adopting the Euro and giving back the rebate.
Whether you agree with the supposed ‘mandate’ that a larger minority voted for than didn’t in a non-binding vote or not, there is definitely no mandate for the way the government have acted since.
This was not an election it was a REFERENDUM different terms all together
i was saying this before the referendum
3% margin for error 60% super majority
people not allowed to vote who were affected
the referendum was an insult to the people involved
and its taken two corrupt partys to push it through
Using similar counting methods only 35% of the franchised electorate wanted to stay in the eu, not enough to maintain the relationship.
35% is enough to maintain the status quo, 37% are not enough to change it.
Nonsense, we elect our Governments on less.
Is that a good thing?
We do, but we can change our mind pretty quickly and even change in less than a year, in worst case. Here we can’t undo things for another 20 years! For the most part, the impact is on those who chose to stay.
Apart from the fact there was an election just one year later were people could of ovturned the vote but chose not to.
Although a fellow traveller in terms of broadly libertarian beliefs, views on monarchy, and religion; I find myself at odds with AC Grayling’s thoughts about gerrymandering and the Brexit referendum. As he quite rightly alludes to in this article, the Brexit referendum primarily went ahead because of Cameron’s 2015 surprise general election success. As a separate consideration, there is also a school of thought that the franchise for those entitled to vote in a UK general election should be extended to include those aged 16-18.
However, it is best not to conflate those two issues.
Imagine should the referendum had been extended to include those aged 16-18, who had been excluded from voting in the 2015 UK general election. That could have given rise to the accusation by some, of gerrymandering to support the remain view.
I would argue that Cameron thought he had already sufficiently tied the hands of the leave campaign. The UK residents entitled to vote in the referendum came from a pool of 54 nationalities, many maybe having little long term allegiance to the UK in terms of permanent residency.
He also had the privilege of gifting the “YES” option to the remain campaign, by means of shaping the question to be put to the public. I am sure that such an esteemed academic as AC Grayling, or indeed keen politics students at the LSE, will be able to find evidence to back up an assertion that this put the leave campaign at a distinct disadvantage
Although picking fault with parliamentary procedure, and government actions driven by realpolitik, his argument lies in the closing statement “Deliberate restriction of the franchise is gerrymandering: the EU referendum was gerrymandered”
Gerrymandered? Surely not.
“Yet the Brexit ministry has chosen to treat the referendum outcome as binding and mandating, in defiance of the explicit nature of the Referendum Act itself……This and the inconsistencies of this referendum with other referenda raise a serious question of constitutional propriety”.
The above “serious question of constitutional propriety” regarding the May Brexit government’s assumption of the unsafe outcome of the tainted (“gerrymandered”) EU referendum leads to a dawning realisation that the May government’s “Decision to leave the EU” as described in Art50.1 was not made in accordance with the UK’s constitutional requirements, and is therefore null and void. There was no parliamentary debate about this “decision”, there was no vote of members, there was no act of Parliament enacted.
Accordingly, the Art 50.2 Letter of Notification to Leave is null and void.
You are right. The purported Art 50(2) is invalid. Further, there are serious matters of law arising.
The Sunday Times has today confirmed that Theresa May “misled” – in other words deceived the Queen in claiming she had support of the DUP when nothing was agreed. She obtained the public office position of Prime Minister through deception. This is a criminal offence.
May is also indictable along with other ministers with the offence of Misconduct in Public Office though her deception in claiming that the 2016 referendum result was a ‘decision’ in accordance with Article 50(1) TFEU.
May is indictable of a further offence of Misconduct in Public Office in issuing a purported Article 50(2) TFEU notice without Parliamentary authority to do so in the form of an Act, as ruled by the Supreme Court.
May is indictable of a further offence of Misconduct in Public Office in concealing from Parliament and the public vital information – the Secret Treasury Impact Assessments of fifty plus Brexit scenarios, all of which were negative. These must be revealed in due course, possibly via police investigation or judicial review forcing disclosure.
Crime reports of criminal offences by Theresa May, David Davis and Lord Bridges of Headley have been filed with the Metropolitan Police are are currently being investigated. To request further information you can email firstname.lastname@example.org
Rant all you like Professor, the referendum on our membership of the EU was undertaken in accordance with the “rules” set down and agreed by all sides and the voters were advised that the Government would abide by the result, so no, it wasn’t gerrymandered, that is just your opinion.
It baffles me that anyone would believe that citizens of other EU member countries working here (they are not EU citizens, as the EU is not yet a “state” ) should have the right to vote on the future of this country.
Before the EU referendum I met a French lady who had lived in London for 50 years and yet was not allowed to vote in the referendum.
Why are you ‘baffled’ that she would have the right to vote in the referendum, when she would have been allowed to vote for Scottish independence if she had lived in Scotland at the time of the independence referendum there?
Are you also baffled that I, an Irish citizen, was allowed to vote in the EU referendum?
Are you baffled that ‘Commonwealth’ citizens were allowed to vote in the EU referendum?
Is it baffling that the American War of Independence was fought over the issue of ‘no taxation without representation’? Not really – but that’s exactly what was done to 3 million UK tax payers who were given no voice in the most relevant vote ever on their status and human rights in the UK.
I have been voting for the last thirty years for a British European member of parliament who has democratically given me representation and the constitutional human rights of freedom of participation. This referendum is null and void because it has discriminated me and millions of us of our right to politically participated in the democratic process. In one referendum this government has created second hand citizens of us similar to the status of woman in the 19th century and slaves.
Although a fellow traveller in terms of broadly libertarian beliefs, views on monarchy, and religion; I find myself at odds with AC Grayling’s thoughts about gerrymandering and the Brexit referendum.
As he quite rightly alludes to in this article.the referendum primarily went ahead as a result of Cameron’s 2015 surprise general election success. As a separate consideration, there is also a school of thought that the franchise for those entitled to vote in a UK general election should be extended to include those aged 16-18.
However, it is best not to conflate those two issues.
If the referendum had been extended to include those aged 16-18, who had been excluded from voting in the 2015 general election, surely that would have given rise to the accusation by some, of gerrymandering to support the remain camp?
I would actually argue that Cameron thought he had already sufficiently tied the hands of the leave campaign. The UK residents entitled to vote in the referendum came from a pool of 54 nationalities, many maybe having little long term allegiance to the UK in terms of permanent residency. He also had the privilege of gifting the “YES” option to the remain campaign, by means of shaping the question to be put to the public.
I am sure that such an esteemed academic as AC Graylig, or indeed keen politics students at the LSE, will be able to find evidence to back up an assertion that this indeed put the leave campaign at a distinct disadvantage.
Gerrymandering? Surely not.
Well, it is clear that many, especially tory, politicians wanted Brexit at any cost, but also that many in the public believed lies, half-truths and insinuations when they should have known better. The British have made their beds and now have to lie in it. Life is unfair sometimes. Good luck! God save the Queen! Stiff upper lip! The British are used to hardships and challenges. I am sure you will survive. If not more prosperous, then at least wiser.
There was Gerrymandering.
The Referendum was effectively as vote on the Maastricht Treaty but it was delayed by 24 years, so many of those who would have liked the opportunity to vote on the treaty did not survive long enough to do so. They were denied their chance to democratically express their views.
“This outcome is by any standards insufficient to justify a constitutional change so significant as the UK’s exiting the EU. There is scarcely any civilised state in the world where a simple majority, let alone a small one, would permit this: for such a change, a supermajority would be required, of 60% or 66% either of votes cast or the entire electorate.”
Wrong! The Maastricht Treaty was a massive constitutional change and its approval was determined by a simple majority in Parliament, but only on a second vote (which was framed as a vote of confidence on the Government) because approval was not given on the first vote.
Or to put it another way there was massive Gerrymandering on the Referendum which was held on the Maastricht Treaty since no one was allowed to vote but it was assumed that everyone would have voted in agreement had they been allowed to do so.
“AC Grayling’s piece on Brexit is inaccurate and tendentious”
Gerrymandered? What a load of old cobblers.
On who got to vote: we used the general election franchise – why should we not?
On 16 year olds: Society and the law do not consider them to be adults – why should they get a special exemption?
On EU citizens: This was about political identity and its tie to governing legitimacy – adding the eu vote would be exactly the gerrymander you decry so vehemently!
On the lack of a super majority: We have and believe in adversarial politics and parliamentary sovereignty – why should we feel the need for a comfort blanket in the manner you describe.
On the justification for the ref: It was wanted by about 70% of the population for nearly a decade, year after year – and polling showed it consistently close in the result, year after year.
Why decide by ref: It was a matter of deep constitutional significance that cut across parliamentary politics – have you heard of a chap by the name of Dicey?
I get it, you don’t like the result. Bad luck, man up.
The reason most sensible countries in the world require a significant majority for a constitutional change is because public opinion changes from day to day, especially it would be so where it becomes evident that an a poorly-informed electorate has been systemically lied to.
The general election model which we are lumbered with works on the basis that you only have to put up with a bad-first-past the post decision for 5 years, not for ever. On the same logic we should have another referendum to review the first one by 2021. As to the sovereignty of Parliament, the Government has shown precious little regard for it or indeed the 48% remain voters it post referendum. Should Parliament decide a second referendum is necessary to allow people to vote on the results of the current pitiful negotiations, as polls indicate support for, would you be happy if 2% of those that voted for leave now changed their mind? I doubt it, but with youngsters who were previously excluded having come of voting age, and with large numbers of ancient little Englanders having subsequently kicked the bucket, the vote could now well swing the other way. Then bad luck for you old chap.
This country has ratified the constitution of human rights. Within the constitution it is written that every citizens British and European have the freedom and right of participation. This referendum discriminated millions of people from this right. Therefore this referendum is unconstitutional. On that bases it should be null and void. I have voted for last thirty years for a British European member of parliament to represent me. Constitutionally I am entitle to decide if I still want representation in the European Parliament. It’s not about national rights,its about who is going to represent me democratically after Brexit? In conclusion, I have lost complete democratic power equal to women in the 19th century or slaves. Well done UK and FYA!
If it is true the referendum was not binding then it is time for politicsl leaders to be hauled in front of the courts to give a report and if found guilty placed under arrest, it was criminal to run a campaign where the average person was unaware that the electorate was being hood winked. There is a need for us to take control of our destiny, the elected representatives appear incapable of performing their public duty
Criminal charges have been filed.If you require further information please email email@example.com
Sadly as much as i agree with the moral case, without a legal case this just more pointless “remoaning”. More than ever this underlines the need for a fundamental overhaul of our constitution.
What nobody has mentioned in the previous comments is that members of the House of Lords were given the right to vote even though they cannot vote in General Elections. Also, the UK has never fully embraced the European idea, Europe is on the Continent. What also was never considered in voting for Art. 50 was the implication of the Irish Problem of the border. This will come home to roost: the Republic of Ireland, being one of the 27 remaining states will have a vote when it comes to deciding on the final deal for Britain, as has the European Parliament. And, of course, all 27 member states will have to be unanimous. So it will, in all probability, end in a hard Brexit without a ‘have your cake and eat it’ deal..
Yes, the referendum was advisory, but Parliament then legitimised it by passing the necessary legislation. We Brexiteers need to thank Gina Miller for that, a woman who is probably the best friend that Brexit could have.
The franchise was the same one that is used in parliamentary elections, so the claim that it excluded foreign residents is true but irrelevant. If a General Election vote is legitimate then so was this referendum, since it was the same electorate. It looks to me as if Old Haircut wanted to increase the electorate thinking that people living abroad are by definition Federasts. Given that the bulk of the British diaspora lives in Australia, Canada and the USA, there is little evidence to suggest that even had the franchise been widened they would have voted for Brussels.
Finally, if the people had wanted to reverse the referendum, they had a perfect opportunity in June this year and could have voted Lib-Dem. They didn’t, did they?
Actually Parliament did not pass the necessary legislation. All it passed was an act giving permission to invoke Article 50 but no direction to do so. So the act as written by Theresa May’s Government was purposely and completely ambiguous and incomplete. If Parliament is constitutionally sovereign then the act should have included direction from Parliament to invoke Article 50 not simply permission to do so and language to overturn the European Communities Act of 1972 (which did not simply say in one line “that the UK Government has permission to join the EEC”) and subsequent amendments. In fact the European Union (Withdrawal) Bill appears to be the necessary precursor to constitutionally invoking Article 50.
If would appear that the UK Government basis for invoking Article 50 does not meet the “constitutional” requirement of Article 50.2 and if you wish to refer to General Elections then the “will of the people” based on the snap General Election seems to be against Brexit as they rejected Theresa May’s government and her plea to increase her majority in order to facilitate Brexit.
Lemme see if I’ve got this straight: parliament passes the necessary legislation that was needed to sideswipe Gina and her Federast team and some Federast then comes along to a discussion thread and tells me that the legislation is dodgy ‘cos it did not contain the form of words that this Federast wanted. Naah, I’ll stick with the situation as I read it which is that we are heading for the exit and Federasts are clutching at straws.
I used the example of the GE to show that whatever gobby people on boards think, there is no desire on the part of the people as a whole to remain in the EU. If there had been then the Lib-Dems would have scored more seats. The result of the election was a Con-Lab dupoly with both parties in favour of Brexit. The parties that are loyal to Brussels, such as the LD and SNP lost seats.
I notice that you ignored my points about the British diaspora and where they are located.
Not so that most British are in NZ, Aus and CAN. 2.2 million around the EU, most are working
On the day, which was June 2016 (‘Get over it!’) 17,410,742 voted to leave the EU; 47,489,258 did NOT vote to leave the EU. The real, current levels of support for EU membership vs. Brexit https://www.facebook.com/stopsocialinjustice/posts/1454992257916361
Of 14 other polls, the twelve most reliable all say STAY: https://spark.adobe.com/page/jR5eGH6KJQ5Jf/
Big Lie propaganda uses by the far right / for Brexit https://www.facebook.com/stopsocialinjustice/posts/1439316186150635
Indoctrination into the far right and right wing radicalisation https://www.facebook.com/stopsocialinjustice/posts/1442216572527263
UK far right media bias https://www.facebook.com/stopsocialinjustice/posts/1437908656291388
I, as an EU Citizen of British origin and resident in Luxembourg for the past 25 years, am registered to vote here, and I am REQUIRED by Law so to do in EU and Local Elections. Despite a Manifesto undertaking before the last General Election but one, I have been deprived of my right to influence the future of my country of origin (because I have been away from the UK for more than 15 years) in a matter that directly effects me in that my right of peaceful abode in my country of residence appears to be being treated as a bargaining counter by an uncaring self-serving minority administration. The rights of my homologues resident in the United Kingdom are similarly at risk of being subjected to harrasment and worse. O tempora, O mores!
I am afraid this is a long post; it is the text of my article published in June 2016. I fully agree with Prof Grayling’s analysis. This is not about a mere legal technicality, it is about upholding the rule of law and the integrity of democracy in the UK. The price of freedom, as we know, is eternal vigilance: The same warning applies to the protection of democratic rights from those who hold another agenda.
HOW THE EU REFERENDUM WAS HIJACKED – AND ARTICLE 50 HAS NOT BEEN TRIGGERED
The Cameron government hijacked the EU Referendum and converted it into a political agenda to suit their own internal party politics. They succeeded in fooling the public and even the other parties into believing that their political agenda was inherent in the referendum Act, and that the result had to be “implemented”.
There has never been a constitutional decision that the UK shall leave the EU. The Article 50 Notification served on 29 March is invalid.
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This explains why:
An exit of the UK from the EU and its subsequent consequences may go down in history as the most momentous change of constitutional status in Britain in living memory. It may surprise you to know that it would be carried out without any democratic mandate or legal basis whatsoever.
Tory, Labour and LibDems all hold the same position: “The result of the EU referendum was the democratic will of the people and must be respected.” As is often heard: “It’s democracy!”. Any challenge is undemocratic.
Is it democracy?
Let’s start with these basics. The UK has an elected Parliament. This is the foundation of our democracy. We accept that Parliament is the supreme legislative authority. Governments cannot override the supremacy of Parliament. They are not permitted to bend either the laws or the clear intent of Parliament to suit their own agenda.
Who would dispute that? Yet this fundamental principle has been overridden; and this abuse has been accepted without question. Both the public and Parliament itself have been deceived and fooled.
In 2015 Parliament passed the EU Referendum Act. The Act was quite simple; it authorized an advisory referendum with two simple alternatives: Remain in the EU or Leave the EU.
The advisory status was confirmed beyond doubt to MP’s when the Referendum Bill was presented in June 2015. The Minister for Europe David Lidington said: “The legislation is about holding a vote; it makes no provision for what follows. The referendum is advisory, as was the case for both the 1975 referendum on Europe and the Scottish independence vote last year. In neither of those cases was there a threshold for the interpretation of the result.”
In case some MPs had not been paying sufficient attention, further confirmation of the advisory status was given to them in the House of Commons Briefing Paper of June 2015: “This Bill requires a referendum on the question of the UK’s continued membership of the European Union. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set any 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 fact that the status was advisory had two crucially important implications:
Firstly: There was no debate about the setting of a majority or supermajority vote threshold, whether 50%, 60% or even 66%, which would have been an essential legal requirement to include in the legislation for a binding vote.
Being advisory, there was no need to even discuss this issue. It was not a vote, it was a consultation. Nowhere, neither before or afterwards, has Parliament determined 50% as a threshold. That is a fiction created since by the Cameron government.
Secondly: The actual choice offered of “Leave the EU” was astoundingly simplistic.
“Remain” needed little amplification. It was the status quo. “Leave the EU” can have very many different meanings, as has become clear since June 2016.
Clearly, Parliament made no attempt to clarify the intent or meaning because there was no need to. The referendum was advisory. It was not a vote, it was a consultation of public opinion. The result was to be considered, but Parliament would still have the right and the duty to consider the national interest and take such decision as it thought fit.
Parliament passed the Referendum Act on that clear legal basis. The Conservative party’s position, as set out in their 2015 manifesto, was that they would ‘respect the outcome’. Quite right, all MPs should “respect” the outcome.
But what happened ?
David Cameron created the Great Pretence that the referendum was binding, and deliberately concealed its advisory status in all public information. It is suspected that MPs were instructed to be complicit in this concealment.
Cameron’s legal duty, and May’s, was to present the result of the referendum to Parliament for due debate and consideration, and it should then have been subject to a free vote, allowing MPs to put the nation’s interest above party politics.
But in early 2016 the Government announced that they will not just “respect the outcome”, but will “implement the result“. This created a wholly new context. The precise meaning of the very simple and loose consultative question “Do you want to Leave the EU?” now became very important, since it had to be “implemented”.
“Leave the EU” was acceptable as a gauge of public opinion, but it was clearly not acceptable as a ballot paper option for a binding vote to “implement” specific action. Leave the EU – regardless of the consequences? Leave the EU – once you have established acceptable alternatives? Leave the EU – at some point in the future if it doesn’t reform itself to our satisfaction…? Leave the EU and stay in the single market, leave and stay in the customs union, leave and limit free movement or allow free movement, leave and adopt a Norway model, make a total break and go off the cliff into WTO trading…. There are 101 variations. “Leave the EU” was virtually meaningless.
Cameron added the fiction that the vote would turn decisively on a 50% threshold. Parliament has never set that threshold. A petition signed by over 4 million demanded in fact that in order to be decisive the vote should require at least a 60% threshold.
The Great Pretence succeeded in fooling the public into believing that the referendum was a binding vote turning on a 50% threshold.
Ironically, shortly before the June 23 vote, Nigel Farage MEP said: “If it’s a 52-48 result it’s unfinished business”. Clearly he intended to challenge a 52% Remain/48% Leave result. How? Presumably by making the very same case as outlined here.
Even Farage has now admitted that the referendum was advisory. On the Andrew Marr Show on 6th November 2016 he turned and said to Gina Miller: “I take the advisory point, and I would now wish to see constitutional change to make referendums binding.”
Well, you can hardly get a better endorsement than that. The referendum was advisory, not a binding vote
The Pretence that the referendum was the democratic and mandatory “will of the people” has been repeated so extensively that it has become accepted as conventional wisdom, and is largely unchallenged. Parliament itself determined that the referendum was no more than a consultation. That remains the case to this day.
So the referendum was advisory, and it was hijacked.
What about the Article 50 Notice?
This may come as another surprise to the reader: the Article 50 Notification served by Theresa May on 29th March is not worth the paper it’s written on.
Here is the problem: The famous Article 50 is very clearly written.
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention.
So first you make the decision to withdraw, then you must notify your decision. Clear enough. But now ask the question: When, where and by whom was a decision made?
Ministers and Lords have told Parliament, and May wrote in her famous letter, that the “decision” was made by “the people” on 23rd June 2016.
Last January the Supreme Court ruled in the Gina Miller case that only Parliament may remove rights which Parliament has granted in the first place. No Minister can do it. Even a Prime Minister wearing an imaginary crown of “Royal Prerogative” can’t do it. Only Parliament may do it, and then only through an Act of Parliament.
And perhaps most importantly, even the “People” can’t do it.
How can Mrs May claim that “the People” made a decision which removes the rights of their fellow citizens? This would be illegal.
“But – there was a decision – there was a vote – 52% voted to Leave“…. Yes there was a vote, and 37% of the electorate did choose the Leave option, but that was not a binding vote. Cameron created the Pretence that it was binding so that when the anticipated vote for remain was announced, he could say “ well that’s it”, the eurosceptics have had their chance, end of story. As we know the Pretence backfired. Goodbye Cameron and Hello May, who continued the pretence.
The government’s official position is that the referendum was the decision. David Davis told the Commons; Lord Bridges told the Lords; Theresa May told President Tusk; the referendum result itself was the decision required by Article 50(1).
The referendum result itself cannot be the “decision”.
1. It was not binding.
2. There was no set threshold.
3. The Supreme Court has confirmed that only Parliament can make such a decision, and by means of an Act of Parliament.
When did Parliament make such a decision? The answer is – never. Parliament has never been asked to make a decision. It has passed no such Act.
So the government has to claim that “the referendum result was the decision”.
The government is either badly advised by its legal experts, or is deliberately misleading the public and the EU.
Is this the ‘legal problem’ that William Cash was about to raise in the Commons when May shut him up? This is the exchange that took place on 14th March 2017:
Sir William Cash (Stone) (Con):
“I congratulate my right hon. Friend not only on her statement and the way in which she dispatched the Leader of the Opposition, but on the passage of the European Union (Notification of Withdrawal) Bill. Does she accept that now is the time for the UK to do all the things that she has recommended in her statement and, in addition to that, to take urgent legal advice in respect of the legal warnings that have been given by Lord Hope of Craighead to be sure that we do not have any unforeseen further attempts to undo that Bill in the courts?”
The Prime Minister:
“I can assure my hon. Friend that, as we move ahead with this, as we have at every stage, we will take appropriate legal advice, but as he will know we do not discuss that on the Floor of the House.”
In other words – Shut up you idiot!
So – why the omission to mention 50(1) in the Bill or elsewhere? Pure incompetence? Or some more sinister intention?
What could the sinister intent be? Leaving an emergency exit open – to be able to say at some time down the line – “oh sorry President Tusk, the Notice was invalid, so you can’t boot us out of the EU after all”?
Is May that cunning? Hard to believe. So perhaps it is pure incompetence. It’s an open question. Are the autocratic Empress Theresa and her band of hapless Brexiteers so out of touch with reality and the results of their bungling that they simply refuse to confront reality? Or is there still a dark reason, known only to the few?
Democracy in Britain is based upon the firm principle that the elected Members of Parliament make the law. Parliament in its wisdom passed the 2015 EU Referendum Act with the clear intent that it should be advisory, and that its result should then be considered by Parliament. Whatever was put in the Conservative manifesto of 2015 has no bearing upon the legal status of the Act.
The Cameron government hijacked the Act and converted it into a political agenda to suit their own internal party politics. They succeeded in fooling the public and even the other parties into believing that their political agenda was inherent in the Act, and that the result had to be “implemented”.
There has never been a constitutional decision stating that the UK shall leave the EU. The Article 50 Notification served on 29 March is invalid.
This scandal has never been challenged by the other parties. They seem to be terrified of being labelled ‘undemocratic”. Yet the hijacking of the Act is the most undemocratic event in living memory. It is not democracy. Democracy will only be served by allowing Parliament to freely debate, consider and vote upon what action should be taken in the national interest as a result of the advisory referendum of 23 June 2016. To date, Parliament has not been permitted to do that. It must be permitted to do so, and in a free vote.
If that is not done, an exit of the UK from the EU and its subsequent consequences may be carried out without any democratic mandate or legal basis whatsoever.
History may not treat that fiasco kindly.
It seems to have missed the honourable Mr Grayling’s attention that the man proposing the referendum in the first place was fully in favour of Remain, and thought it was a dead cert. Gerrymandering is an intentional rigging of votes. So I do not think he is using the correct terminology. Cameron might have been arrogant and or incompetent but as he had no intention to favour Leave this is not Gerrymandering.
It was the biggest fraud ever perpetrated on a whole nation.
Professor Grayling the professional remoaner who thought the educated remainer camp would win.
Thank you Richard Bird for so eloquently orating the facts. I have been shouted down over the advisory nature of the referendum for the last year plus. As an ex-pat of 20+ yrs not only did I not get a vote, I have found myself a ‘citizen of nowhere’ in other senses of the phrase that May coined too. This has been a deeply upsetting issue for me and I will never ever forgive the British state for this.
Poor you. Most expats do not even live in the EU. In fact, there are more Poles living in Britain than there are British people in the whole EU. To make matters even more risible, the bulk of the Brits in Europe are to be found in Spain, and most of them are retired.
Most British people are to be found in Australia, Canada and the USA. That being so, why do the Federasts think that allowing the Brits abroad to vote would have changed the result in any way?
Ken Bell, I may be mistaken but I detect a strong sense of sarcasm in your ‘Poor you’ comment.
To try and get a sense of my feeling, hypothetically, how would you feel if we removed your constituency from participation in any national referenda in the future? It would make zero difference in the ensuing result with probability infinitesimally close to 1. So why would you care? Even if the result would make your continued residence in said constituency uncertain and risk breaking your family apart, your vote would still be worth precisely nothing, right?
Disenfranchised is the word. I guess you have to experience it to understand it.
No, you are not mistaken, and I congratulate you on your reading comprehension. Hey, it puts you head and shoulders above most Federasts that I have crossed swords with since they come over as types who find the act of tying their shoelaces to be an intellectual challenge.
Right, a genuine long-term expat would have an accommodation address in the UK and HMG would probably not even be aware that he is out of the country. I say that ‘cos I was one for many years and those members of the British diaspora that I met in bars who had left Britain when Clem Attlee was Prime Minister all used that trick to ensure that their pensions were not frozen.
The usual wheeze is to use a cousin back home and give his address as yours, but those who had outlived all their family and friends used British Monomarks, an outfit that started in the days of Empire and helps expats today. Look ’em up on Google and then sign up.
If you take any of the advice that I have given you then you can register to vote via that address. That is why most of my old friends in Mexico were able to vote to free Britian from the EU last year, by the way…
Ken, as an actual expat excluded from UK elections, I’m sure I’m grateful for your opinion that all “genuine long-term expats” fraudently claim false residency in the UK to fiddle higher pensions and get votes we aren’t entitled to in UK elections. If we are all criminals, perhaps it is just as well we aren’t allowed to vote.
You have paid your stamps so the government is actually fiddling you. Some, of course, get the pension uprate every year, such as people who live in the USA, for instance. Those in either Canada or Mexico don’t.
You could return to the UK for a holiday and that way you would get the existing rate, but it’s much easier to do as I suggested.
Remember, they are fiddling you.
The politics and law of this are interesting, but I can suggest another reason why it is unwise to go ahead with Brexit on the basis of such a narrow referendum result. That is that the narrowness of the result, combined with present chaos in the British government, and the fact that the Leave supporters were on average much older than the Remain supporters, may well make potential trade partners wary of giving a high priority to negotiating a trade deal with the UK, because by the time a deal is agreed, the UK electorate may have turned against Brexit, and the UK may be trying to get back into at least the single market and customs union, if not the EU itself, making the whole effort a waste of time.
The only criticisms I have for Dr. Grayling’s observations are:
He did not seem to mention that British citizens from the Overseas Territories and Crown Dependencies (with the exception of Gibraltar) were excluded from voting; even though they are directly affected by Brexit and subject to EU laws and are entitled to rights related to EU membership.
I also would suggest that it arguable whether EU citizens resident in the UK should have been allowed to vote. There are arguments on both sides. My own opinion is that those that have been resident for a period of over a year should have voted.
Excluding the OT’s and CD’s is most definitely gerrymandering on the basis that the referendum was treated as binding (even though it clearly was not binding at all).
As has been mentioned in some other comments, the Article 50 notice clearly does not comply with the provisions of Article 50 itself. Article 50 requires a decision to be made. It is a matter of fact that the referendum did not constitute a decision and the UK government have stated for the record that no other decision was made in current legal proceedings.The government cannot resile from this position. It is a matter of some certainty that the Article 50 notice was not valid and is of no effect.
Further, difficulties arise because the Miller ruling made it clear that the executive could not bind Parliament. It was the central reason that the government was prevented from using the prerogative to give notice. Conferring powers on the Prime Minister to give notice does not seem to overcome this problem. On giving notice it would appear to bind Parliament to repeal the European Commuities Act 1972 (among others) and require Parliament to legislate through the European Union Withdrawal Act (or the like). Article 50 Notice seems to have bound Parliament and is therefore unlawful and in contempt of the Miller ruling.
If that were not enough, the European Union Act 2011 appears to require a further referendum on the Withdrawal Treaty.
Dr..Grayling is correct in suggesting that Brexit is an affront to our democracy, constitution and the rule of law. Far from taking back control, we are handing control to a lawless immoral government that is not constrained by the law, Parliament, or those that elected it.
Actually it was a breach of MY human rights denying all British Citizens a vote living in the EU.
Also very undemocratic . All i hear if the bs about it being democratic yet 6,5 million people who are most effected by Brexit were denied a vote including myself.
Also when you dont have a vote as u see with Theresa May she doesnt care about what happens to her own citizens living in Europe.
Not once has she mentioned about what happens to her CITIZENS living in the EU in a no deal situation.
Funny how the Tory MPS always bleat about it being democratic but try to ask well i didnt get a vote so how can it be democratic… no you wont.
Her own MPS refuse to answer any questions from Ex Pats let alone meet Ex Pats groups.
No this isnt just Gerrymandering this is a blatant Humans rights abuse and to some of us dictatorship.
Why did many Ex Pats like Harry Schindler fight to protect the UK in WW2 yet they deny all ex pats after 15 years a vote….
Absolute disgrace and i hope the court case in the EU makes the Brexit vote illegal and with it Article 50