In a previous post, I made the observation that there would not have been a legal challenge to the means of triggering notification under Article 50 of the TEU if the June referendum had been legally binding. Although the Government made a manifesto commitment to implement the result, whatever the outcome, this was not translated into the terms of the EU Referendum Bill. Why not?
One explanation would be that it was the product of ignorance, with the Government proceeding on the basis that referendums were necessarily advisory. As I mentioned in my earlier post, during Second Reading of the Bill in the Lords, the minister said that referendums were advisory, even though I had already pointed out in my speech that the 2011 referendum on an alternative voting system was binding – had there been a ‘yes’ vote, the AV system would have been introduced under section 8 of the Parliamentary Voting System and Constituencies Act 2011. However, the Constitution Committee did subsequently write to the minister to remind her of this and it is unlikely that officials in the Cabinet Office were unaware of such a basic point. The Bill could have included provision for notification to be given under Article 50 in the event of a majority voting for Leave.
The other explanation is that it was by design. Making the result binding would be relevant only in the context of a Leave vote. If electors voted for Remain, then the UK would continue as a member of the EU. To make the result of the referendum binding would in effect concede that there may be a vote for Leave. The Government appeared reluctant to concede such a possibility, hence the regular refusal not to undertake a study of the consequences should the UK leave the EU.
Had the Government accepted the case for making the result binding, giving effect in the Bill to what it had promised in its manifesto, there would have been no basis for resort to the courts. Notification would be the result of an Act of Parliament. As it is, by setting its face against conceding the possibility of anything other than a Remain vote, the Government created a rod for its own back. That rod is now a heavy one.
I have variously made the point that institutions and processes are not neutral in their effect. If there had been no referendum, the UK would continue as a member of the EU. If there had been a referendum, but with a threshold requirement that, say, at least 60% of those voting had to vote Leave for it to take effect, we would continue as a member of the EU. If there was a referendum that provided that, if a simple majority voted Leave, it would be binding (as with a Yes vote in the 2011 referendum), we would be leaving the EU, but in a more conclusive way than is proving to be the case. (This assumes electors voted the same way under such rules as they voted in June.) As it is, we have had a referendum that was not legally binding and without any threshold (or turnout) requirement. As a consequence of a simple majority to Leave, we have challenges to the means of how we leave the EU and with some people, in effect, seeking to replay the referendum and calling for a second referendum.
As I say, institutions and processes are not neutral in the effect.