Why wasn’t the referendum binding?

Ballot-Paper-300x150In 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.

About Lord Norton

Professor of Government at Hull University, and Member of the House of Lords
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14 Responses to Why wasn’t the referendum binding?

  1. A good point well made, as always.

    Regarding the threshold, there is a strong argument to say that far-reaching constitutional change, such as leaving the EU or indeed independence, should require a supermajority to take effect. I believe the Canadians call it the “clear settled will”. The reality of a 50%+1 decision is you end up with large swathes of the country (in this case, London, Scotland, Northern Ireland) being taken unwillingly out of the EU. The same was the case with the welsh border counties of Powys and Monmouthshire during the Welsh devolution referendum and could very much be the case for Orkney & Shetland in a second Scottish referendum. My preference is for a supermajority of 60% to be required.

    Secondly, there is a question of whether it is right for a referendum to be called over a decision that the government doesn’t support. The process used for devolution, directly elected majors of scottish independence seems far preferable: in the last case, independence would have required positive support by the scottish government (which they had), the scottish parliament (which was passed) and the scottish people. This “triple lock” seems a good mechanism for major constitutional change – a form of people’s veto. This is quite a contrast to the use in the EU referendum, where the referendum was posed as an alternative to representative democracy, and an excuse to avoid debating the topic. This latter usage seems quite anti-democratic in effect and the practical impact is potentially disastrous when the outcome is something the government doesn’t want and is ill-prepared for.

  2. Due process is a term usually associated with criminal law. Reading you ( though you do not use the phrase) reminds one of the continent beyond that shoreline. Metaphorically ….

  3. Jonathan says:

    Why should the Bill enabling a binding referendum just have contained a provision to trigger Article 50, just one small aspect of the enormous task of leaving the EU? Why should it not also bind the government to seek a particular sort of deal: whether access to the single market, freedom of movement or a customs union? For the referendum to have been binding, it would have needed to have set out clearly what leaving the EU would have entailed, rather than letting the “Leave” campaign make it up as they went along, even if there was no way they would guarantee any of their promises being kept. Such a binding referendum would then have been far fairer and clearer, and as you say, the result may well have been different.

    • Croft says:

      “For the referendum to have been binding, it would have needed to have set out clearly what leaving the EU would have entailed”

      No it wouldn’t. You don’t like the result – which is fine – but erecting this argument to essentially try rerun the referendum under rules that might favour your view is no argument about the binding nature of the vote.

      • Jonathan says:

        No: as with almost all MPs and commentators, I accept the result. We should leave the EU without another referendum on the question of whether we leave the EU. We are leaving the EU, fine. It’s quite sad that Leave voters use this same old argument again and again every time anyone tries to make any input into the discussion of how we leave the EU. Apart from a few people on the fringes, very few people are trying to reverse the referendum result and continue exactly as we were as EU members.

        However, the question on the ballot paper was whether the UK should remain a member of the EU. No mention of freedom of movement, immigration, single market, customs union or anything else. Nothing anyone said during the campaign was binding. Farage stood up and said immigration would be reduced, with absolutely no power to make that happen. Johnson said we’d stay in the single market and nothing much would change. Again, no power to make that happen.

        If the Bill had actually made binding not just that we left the EU, but what that would entail, everyone would have been clearer what they were voting on, and could be sure it would be acted upon exactly as they expected. If anything, it would have been more of benefit to Leave voters, as they could be sure of getting what they voted for, rather than something decided on afterwards which may not be what they expected or wanted.

      • Croft says:

        “everyone would have been clearer what they were voting on, and could be sure it would be acted upon exactly as they expected.”

        That argument doesn’t really work except at an extreme binary level. Unless the proposal was we leave the EU and go to WTO any other relationship would be a negotiation with the EU so no-one could vote on the result since it was not in our gift to fulfil.

        Your other argument looks like a form of subverting the result. I completing accept the referendum didn’t give a blueprint of what would happen and clearly there are different options that could be considered compatible with the result; but (keeping/staying in) ‘freedom of movement, immigration, single market, customs union’ is not in any serious sense respecting the result. Its is like animal farm; where the pigs change the text ”No animal shall sleep in a bed” but add **with sheets**.” Its knowingly misapplying the intent.

        I make no comment on the economics or wisdom of the choice. Merely that leaving the EU is incompatible with staying in the single market and thereby accepting foM, ECJ jurisdiction and EU rules and regulations. Clearly remainers like that option because its like a corporate re-branding where the stationary changes but little else. But it is not accepting the result…

      • Jonathan says:

        I fully agree that many finer details of our future relationship with Europe could not be decided before the referendum as they are subject to negotiation. However, varying views were expressed on the single market and freedom of movement during the campaign: whether we have a “hard-” or “soft Brexit”. A Bill for a binding referendum could have specified the path to be taken at this coarse level.

        Were a binding referendum only to specify triggering Article 50, the UK could still stay a full member of the EEA. If it specified that we would leave the single market and EU institutions and negotiate new bilateral trade deals, Leave voters would be sure of getting what they voted for. That’s my only point, and it’s a purely hypothetical one in the case that we had a binding referendum. If as you say, the only way to leave the EU properly is to abandon “foM, ECJ jurisdiction and EU rules and regulations”, why is a “binding” referendum that only specifies triggering Article 50 acceptable? If the important decisions aren’t the one that is being bound, you are back to relying on the government doing what is morally correct following a democratic vote, and there’s no point in it being binding.

      • Croft says:

        “However, varying views were expressed on the single market and freedom of movement during the campaign”

        As both sides leading figures claimed it meant leaving the single market during the campaign I’m not sure your point stands up. (vide Andrew Neil’s interview with Clegg)

        “A Bill for a binding referendum could have specified the path to be taken at this coarse level.”

        But how do you do this – who decides the two choices. A stitch up by the mandated campaigns might look exactly what the polling seems to tell us the public were reacting against. The alternative of multiple referendums on the options b4 the main referendum sounds pretty unappealing!

        “Were a binding referendum only to specify triggering Article 50, the UK could still stay a full member of the EEA. ”

        Not sure that logic holds in terms of a leave vote. The UK only participated in the EEA as a condition of its membership of the EU. The EEA is a feeder organisation to intended EU membership and requires most of the same things: EcJ (indirect), FoM, EU rules/regulations etc…. So EEA membership and leaving the EU seem mutually exclusive in a way Ceta or Ttip like arrangements dont.

        “government doing what is morally correct following a democratic vote, and there’s no point in it being binding.”

        I can see your point but there is still a difference. A Binding referendum even if it gave no destination would have blocked court action and left the matter to the elected government accountable to parliament not the judiciary to navigate the path….

  4. tizres says:

    Wasn’t it within the power of Parliament to make the EU Referendum Act binding or set a threshold? In any case, the PM announced his ministers would have a free vote thus the Government per se was not responsible.

    • Lord Norton says:

      tizres: It was a Government Bill. The Opposition agreed to the referendum. The result was that the Bill went through with little detailed scrutiny. The freedom of ministers was in relation to the referendum campaign.

      • tizres says:

        I totally accept your point on the freedom of ministers to campaign. I had in mind the PM’s desire to keep the Cabinet intact and, with them, the usual stroppy backbenchers, while the Bill was going through.

        Returning to a regular reference, Referendums in the UK :

        189. We recommend that there should be a general presumption against the use of voter turnout thresholds and supermajorities. We recognise however that there may be exceptional circumstances in which they may be deemed appropriate.

        197. We recognise that because of the sovereignty of Parliament, referendums cannot be legally binding in the UK, and are therefore advisory. However, it would be difficult for Parliament to ignore a decisive expression of public opinion.
        The Lord’s Constitutional Committee Report, 2009-10 http://www.publications.parliament.uk/pa/ld200910/ldselect/ldconst/99/99.pdf

        So, not a product of ignorance, then…

    • tizres says:

      Very good!

      Your own writing skills might have deserted you in your attempt to draft a particular Bill but is it possible to convey a seasonal message of love and hope without tripping over a snowflake or two?

  5. maude elwes says:

    This is the lowest and dirtiest farce governments have played on the British people, other than the bank pay outs and the Iraq war that is. Or is it? Getting rid of the sinking ship called Europe is a piece of cake for any government worth calling itself one. The continent is run by a drunk and a woman who is insane enough to allow Europeans to be abused and used at a rate only the kind akin to Stalin would do. We, of course, running along beside to make sure we keep up with them. Must keep the payments coming to those hiding in Whitehall mustn’t we, or else they may blow the whistle on the rest.

    Of course the immigration open door policy is another ludicrous, obscene lie that ties our hand in glove with infantile European fools that managed to get themselves twisted in fiddles of the dirty Christine Legarde style. How many of those do we have? The pretence of 300,000 a year entering the UK when we all know it is 600,000, plus illegals, making the total population far greater than the hidden figure put out, deserves the bringing back of hanging. And then to tell us the health service and schools, etc., can only survive because of them goes up Santa’s chimney. You only have to be in any hospital to see the staff of migrants simply nursing and caring for their own on our backs through our largesse.

    It was claimed in the Mail yesterday that by 2030 we will have 77 million as a needy population as they continue to use us as the idiots we are.

    Time for serious readjustment. Free of the lunacy called the EU and those who have the gall to sit in our Parliament spilling out daily fake stories.

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