When is a referendum not a referendum? Answer — when it is a politically convenient device used by a slippery Prime Minister in trouble with half his MPs.
The EU Referendum held on the 23rd of June was phony. It has no legal consequences. That in turn means that it has no effect. Whoever becomes leader of the Tory Party and thus Prime Minister of Great Britain, will, if she or he wishes to cause the UK to leave the EU, have to follow the normal Parliamentary procedure for the making of law. It could take years for legislation to pass, if it is not blocked from the start by the majority of pro-EU MPs.
Let me explain.
First let’s look at how laws are made in the UK. Source: http://www.parliament.uk/about/how/laws/
First, a Draft Bill is published. This would usually be called a White Paper or a Green Paper. The former is a Paper that proposes the Government’s specific intention and the latter is a broader consultation document.
Once the Draft Bill is agreed, it is presented to Parliament as a Bill for ‘examination, discussion and amendment’.
Commons and Lords
The Bill then goes through its First and Second Readings in the House of Commons. Amendments may be made as a consequence of the debates on these Readings. It then goes to the Committee Stage, for technical and legal revision. After that, the Report is published and the Bill has a Third Reading in the Commons.
We’re not done yet. Once the Commons has approved the Bill it goes to the House of Lords, where it goes through exactly the same process: two Readings, Committee and Report, and Third Reading. A Bill ‘must be approved in the same form by both Houses before becoming an Act (law).’
The House of Lords is not obliged to approve the Bill at all and may send it back to the Commons for revision. Today, thanks to the Parliament Acts, Her Majesty’s House of Lords cannot indefinitely block legislation:
‘Bills can be held up by the Lords if they disagree with them for about a year but ultimately the elected House of Commons can reintroduce them in the following session and pass them without the consent of the Lords.’
In order to change the Law, proposed legislation must pass the whole of the above procedure.
In the following example, the consequences of the vote were clearly stated. This is because this referendum was held only after the relevant legislation had passed all its Parliamentary stages. In other words the consequences of the result had already been approved by both Houses of Parliament and had received Royal Assent prior to the referendum.
Alternative Vote Referendum 2012.
So let’s look at Section 8 of the Parliamentary Voting System and Constituencies Act 2011, which triggered the referendum on the Alternative Vote in 2012. Source: http://www.legislation.gov.uk/ukpga/2011/1/contents/enacted/data.htm
‘(1)The Minister must make an order bringing into force section 9, Schedule 10 and Part 1 of Schedule 12 (“the alternative vote provisions”) if—
(a)more votes are cast in the referendum in favour of the answer “Yes” than in favour of the answer “No”,’
‘(2)If more votes are not cast in the referendum in favour of the answer “Yes” than in favour of the answer “No”, the Minister must make an order repealing the alternative vote provisions.’
The consequences of the referendum here are clearly stated. The legislation contains an instruction as to what the Government had to do after the vote was held. The Minister concerned was directed on one hand to enable the law if the result was a majority ‘Yes’. On the other, to repeal it if the result favoured ‘No’. The provisions under which he or she was to do so were likewise framed in the Act. (This referendum voted against.)
In other words, the relevant legislation had passed through all the debates, stages and approvals required for a Bill to become an Act (Law). Furthermore the consequences of either a favourable or otherwise result had also been discussed and written into law.
The 1973 EEC Referendum.
Now let’s look at another referendum, the 1973 referendum regarding the UK’s accession to the EEC.
Like the one above, the relevant Act, the European Communities Act of 1972, had already gone through all its stages in Parliament and had received Royal Assent. It was the law. Source http://www.legislation.gov.uk/ukpga/1972/68/section/1
Indeed, the UK had already signed the Treaty of Accession which made it a part of the EEC. It was only because of protest that a referendum was held, but that referendum had no authority over Parliament. This was not made immediately obvious because the votes in the 1973 EEC referendum and also the 1975 one, preserved the status quo.
In other words, the legal stature of these referendums was never tested. In fact they were technically ‘consultations’. They had no effect in law at all. But this was never made obvious, because the result of the votes was to leave things as they were. Parliament had already made the law by the proper Constitutional process.
The Phony Referendum.
Now look at the enabling legislation for the 2016 European Referendum. This is the European Referendum Act of 2015, and the title alone should be making you wonder. Source http://www.legislation.gov.uk/ukpga/2015/36/contents/enacted/data.htm
Here is what it says:
‘(1)A referendum is to be held on whether the United Kingdom should remain a member of the European Union.
(2)The Secretary of State must, by regulations, appoint the day on which the referendum is to be held.
(3)The day appointed under subsection (2)—
(a)must be no later than 31 December 2017,
(b)must not be 5 May 2016, and
(c)must not be 4 May 2017.
(4)The question that is to appear on the ballot papers is—
“Should the United Kingdom remain a member of the European Union or leave the European Union?”
(5)The alternative answers to that question that are to appear on the ballot papers are—
“Remain a member of the European Union
Leave the European Union”.’
That is it. It then gives the official wording in Welsh. There is no more substantive detail, the rest of the Act is all about procedure. It is the shortest Act of Parliament I have ever seen — and the most meaningless.
There is not one word about what happens after the referendum. Not one.
Not Worth the Paper it’s Printed On.
This Act, which went through all its Parliamentary stages easily, ONLY sets up a referendum. Its substantive section, above, does not refer to any other legislation. It does not place any burden upon Government to do anything at all, dependent on the result. It has no consequences.
Let me be quite blunt: constitutionally, this document is not worth the paper it is printed on. Its sole purpose was to hold a phony referendum with no Constitutional force.
The phony referendum has been held in accordance with the Act and that, my friends, is that. Done and dusted. Time to move on. The ‘Brexit’ vote was meaningless. We can — and we should — forget about it.
Parliament is Sovereign.
Only Parliament can decide to leave the EU. And before it did so, an appropriate Bill would have to be drafted and go through the procedure described above of Readings, Committee Stages and Reports in both Houses.
In fact, Parliament has not discussed one line of any Bill that might be enacted and its consequences realised, as a result of the phony EU referendum.
Parliament could have debated and enacted a Bill that did provide for legislative change after a referendum. It is sovereign. But it did not. And I do not think that any such legislation would have sailed through. This is almost certainly why there are no legislative consequences in the 2015 Act. The people who framed the Draft Bill it must have known that to actually debate leaving Europe would have caused the most unholy row.
Cameron only wanted to defuse the Eurosceptic Tory MPs. So he gave them a phony referendum with no powers, probably hoping that it, like the previous two on Europe, would preserve the status quo and so its lack of legal substance would never be exposed.
Fast and Loose — Irresponsible, even.
You may well wonder about a man who would play fast and loose with the futures of his own country and people in such a way. No wonder he left in a hurry. We sincerely hope that his reputation never recovers.
I am shocked that we have politicians so ignorant of their own Constitutional responsibilities that they have not already challenged the current mass hysteria provoked by the verdict of this most spurious of referendums. It is a phony; it is literally inconsequential.
I am gravely disappointed by my colleagues in the Media, that they have not gone through the simple exercise of downloading and reading the relevant legislation, which would prove, for once and for all, that the phony EU referendum was nothing more than a slick political device.
Also published on Medium.