Is the Referendum 2016 “binding”, or was it, as LJ Sales contended, merely “advisory”?
To answer that question we need to understand the purpose and meaning of the constitutional procedure of referendums in general.
A referendum is a constitutional procedure the purpose of which is to resolve a YES/NO issue by a general public vote.
In the absence of an explicit statement to the contrary, it would be understood that, once such decision is made, (a) it would be accepted “for better or for worse” by the minority who voted against this decision and (b) it would be implemented by the relevant authority.
In case of a national referendum the “authority” which would be expected to implement the referendum decision would be the government of the country, and the referendum vote would be taken by the adult population of the country.
Decisions taken by votes, like referendums, votes to pass bills in Parliament, or general and local elections, are not the means to determine truth of facts, or logical validity of statements, or soundness of the underlying legal principles. Nor do they guarantee that the decisions are “good” or beneficial in any way. They are means of reaching an agreement by disagreeing participants in an argument by the disagreeing side accepting the decision of the majority for better or for worse.
A majority vote does not mean that the decision voted for is right or good or beneficial. It only means that more people voted for this decision than for the alternatives. This is what “democracy” means.
At present, decisions by vote, by flipping a coin, or by drawing lots, are the only ways of preventing endless arguments, or violent confrontations.
And until the Humans learn to accept decisions on the basis of verification of facts and validity of logic, even if such decisions are unfavourable for them, voting, or drawing lots, will remain the only non‐violent ways to decide “political” disagreements.
Voting is also the only way of deciding issues of personal choice, in which there are no issues of right or wrong, true or false. And referendums are the ways to decide such issues. This is why referendums are used to decide if the people of an area want their area to be part of some other administrative area or not. The Referendum for the UK to Leave the EU is an example of such use of referendums.
Once a vote is taken, the “losing” party must accept the decision until a vote can be cast again after at least 4–5 years. Without such acceptance “democracy” cannot work.
There has always been some opposition to the UK membership of the EU, but towards 2013 the pressures to leave the EU have gained momentum, which the UK politicians could no longer ignore.
And on 23 January 2013, David Cameron, the then Leader of the Conservative Party, made a public announcement that, if a Conservative Government won the General Election of 2015, it would hold a national referendum on the UK leaving the EU.
This announcement was generally understood that such referendum would be binding on the government of the times, rather than a “general public consultation” the results of which the government would be free to implement or ignore.
Following that announcement, a “Draft European Union (Referendum) Bill” was published by the Conservative Party on 14 May 2013.
And again there was no statement in that draft Bill that the Referendum is to be “advisory” (a public consultation).
The Bill was announced in the Queen's Speech on 27 May 2015, and introduced the day after. There was no indications in this Bill that the Referendum was in fact a “General Public Consultation” non‐binding on the UK Government to implement the referendum decision.
On 17 December 2015, the Act “to make provision for the holding of a referendum in the United Kingdom and Gibraltar on whether the United Kingdom should remain a member of the European Union” received Royal Assent.
There is no statement in the EURA 2015 that the purpose of that Referendum is to advise the Government on the state of the public opinion, rather than to authorise the Government of the day to take the necessary steps to implement the Referendum Decision.
To implement the decision of the European Union Referendum Act 2015 to hold a referendum on “Should the United Kingdom remain a member of the European Union or leave the European Union?”, two campaigning organisations were formed to advocate the two Referendum options: “Leave” and “Remain”.
Following that, the Electoral Commission produced a leaflet circulated to each UK household containing directions on how to vote in the Referendum and the arguments of both the campaign organisations.
At the same time Members of the Government, Members of Parliament, and various public figures and journalists started arguing in public for their preferred option.
But neither in the leaflet circulated to the UK householders, nor in the speeches of the Referendum campaigners, was it mentioned that the Referendum is “advisory (an opinion poll).”
The then Prime Minister, David Cameron, was vociferously advocating the Remain Option. He even resigned when the Referendum returned the result “Leave”. Would he have resigned, if the Referendum was a mere opinion poll not binding upon the Government?
LJ Sales Decision (p 107) notes that “the 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only”.
And, indeed, BRIEFING PAPER Number 07212, 3 June 2015, of the House of Commons Library does state in Section 5:
“This Bill requires a referendum to be held on the question of the UK's continued membership of the European Union (EU) before the end of 2017. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set a 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”.
But does this paper have the force of an Act of Parliament?
And did the public who believed that they are voting in a real binding Referendum knew of the existence of this paper?
The paper has no legislative force. It is an advisory document for Members of Parliament written by a Justice Committee Research Clerk, Elise Uberoi.
There is even no certainty that all the Members of Parliament were familiar with the contents of this paper.
But, if they did, then why it was not made clear to the voting public what the consequences of their vote would be?
Was not disclosing to the voters, that the purpose of their vote was merely to inform the government of their views rather than decide the issue of the UK EU membership deliberate?
Did they stage the Referendum to placate the public demands for it in the hope of a “remain” vote, but, if the vote turned out to be “leave”, they intended to say that it was a mere “opinion poll”?
If it was, then the Government responsible for the Referendum clearly deceived the People.
If not deception, then was it a case of careless negligence by the UK Government?
Or was it that most MPs were simply not aware of the contents of that paper, or may be even of its existence?
It is clear from the whole history of Referendum 2016, that the voting public voted in the belief that the Referendum Decision was binding on the Government, and that the Government responsible for the Referendum, has made no effort to inform the public that the Referendum was a mere “public consultation”. And for this reason, regardless of the fact that some people dealing with the Referendum had thought that the Referendum should be “consultative”, as evidence by Briefing Paper 07212, in reality, Referendum 2016 was de facto binding on the government to implement the decision.
Is the Referendum Decision advisory or legally binding?
It is clear that, from the time of the promise by David Cameron on 23 January 2013 of a Leave EU Referendum, to the time of the Referendum 2016 vote on 26 June 2016, the voters and the Government saw the Referendum as binding and not requiring any further determinations by Parliament.
Neither Briefing Paper 07212, 3 June 2015, of the House of Commons Library, nor the views of LJ Sales about referendums in general have legal force to turn a Referendum that was conducted as if it were binding on the Government into an “advisory” public opinion poll.
And, as it is binding, then European Union Referendum Act 2015 has bestowed upon the UK Government both the duties and the powers to terminate the UK membership of the EU. And as this requires of the UK Government giving a formal Notice of the decision to leave the EU, and to comply with any provisions of the EU Treaty termination clause, the UK Government can and must proceed to do so without any need for authorisation by Parliament.