I contend that, contrary to the claim that the EU referendum was intended to be advisory, it was in fact the clearly and repeatedly stated intention of the government to honour the result of the EU referendum, that our Parliamentarians knew this was the intention when they passed the legislation and voters were told clearly that this was the case in the campaign itself.
In the wake of the EU referendum result, some pro EU commentators have noted that because the EU Referendum Act 2015 did not legally bind the government to honouring the result, it was thus an advisory referendum that the government and Parliament are free to ignore. For example, when philosopher AC Grayling sets out 5 reasons for ignoring the Brexit vote (this post is a partial response to his article – I intend to deal with other aspects of it separately), he repeatedly states his view that it was advisory:
The first is that the June 23 referendum was not a democratically binding decision on EU membership. It was held under the terms of the (poorly drafted) 2015 Referendum Act as an explicitly advisory referendum – a test of opinion – only. The fact that a number of MPs regard the decision as binding is astonishing for a number of reasons, but the first of them is that not only was the exercise intended as advisory, it is also obvious from a consideration of the numbers involved that it provides no mandate for the UK government to take the country out of the EU. For: 51.9% of those who voted, in a turnout of 72%, represents 37% of the electorate, and less than a third of the UK population. Let us leave aside the fact that in all other mature democracies a referendum considered as having mandating status would require a supermajority – typically a two-thirds majority – and ask whether a Remain vote of that size would have put an end to Leave aspirations. We know from the record that it would not; Nigel Farage of UKIP publicly committed himself to regarding so small a majority of those voting as by no means settling the matter. As that correctly suggests, the referendum result is in no way a mandate. (emphasis added)
It is clear this first point rests on the idea that the referendum was advisory and thus a mere “test of opinion”. His 2nd and 3rd points also rest on the claim that the referendum was advisory only:
The second point follows. Prior to the referendum it was known that 76% of MPs and 85% of members of the House of Lords were in favour of remaining in the EU. This was presumably because they thought the best interests of the UK are served by so remaining. Given this, given the extremely important fact of parliamentary sovereignty, and given the advisory-only nature of the referendum, it is an open and shut case that if members of parliament are to act in the best interests of the whole country and its future as they say they see it, it is clear that they should determine that the UK is to remain in the EU. (emphasis added)
The third point is that this is not only the logic of the majority view of parliamentarians in both Houses, nor that it is in the obvious best interests of the country, as those parliamentarians themselves think, but more: it is their democratic duty and responsibility to reaffirm continuation of the UK’s EU membership because they so think. They subvert our representative democracy and our constitution if they choose to treat an advisory referendum as usurping their duty and the sovereignty and duty of the parliament in which they serve. (emphasis added)
My problem with this claim is that to claim that the referendum was intended to be advisory is to ignore the history of how it was Britain ended up holding the referendum in the first place.
I contend specifically that:
— when Cameron pledged the in/out referendum in the first place, he intended that the result would be honoured. This is clear from the speech promising the referendum, where he said:
And when we have negotiated that new settlement, we will give the British people a referendum with a very simple in or out choice. To stay in the EU on these new terms; or come out altogether.
It will be an in-out referendum.
Legislation will be drafted before the next election. And if a Conservative Government is elected we will introduce the enabling legislation immediately and pass it by the end of that year. And we will complete this negotiation and hold this referendum within the first half of the next parliament.
It is time for the British people to have their say. It is time to settle this European question in British politics.
I say to the British people: this will be your decision. (emphasis added)
— both holding the referendum and respecting the outcome were manifesto commitments made by the Tory party at the 2015 general election. On page 72 of the manifesto it states:
It will be a fundamental principle of a future Conservative Government that membership of the European Union depends on the consent of the British people – and in recent years that consent has worn wafer-thin. That’s why, after the election, we will negotiate a new settlement for Britain in Europe, and then ask the British people whether they want to stay in the EU on this reformed basis or leave. David Cameron has committed that he will only lead a government that offers an in-out referendum. We will hold that in-out referendum before the end of 2017 and respect the outcome.
— when the government pushed the legislation through Parliament they made it clear that they intended to abide by the result and thus MPs and Lords were fully aware of the intention. For example when Phillip Hammond MP opened the second reading of the bill, he stated:
This is a simple, but vital, piece of legislation. It has one clear purpose: to deliver on our promise to give the British people the final say on our EU membership in an in/out referendum by the end of 2017.
— during the referendum campaign itself, Cameron repeatedly insisted that the result would be honoured either way and both sides campaigned as if it would be, thus voters were voting under the clear expectation that the result would be so honoured. For example, the Guardian reported that during a debate with Cameron when he was quizzed on this very point he said:
If we vote to leave, will we carry out that instruction, yes; will I continue as PM; yes; will I construct a government that includes all the talents of the Conservative party, yes I would.” – (emphasis added)
Admittedly Cameron resigned and thus did not continue as PM, nevertheless it is clear that the official intention of the government was to abide by the result of referendum.
So not only was this the clearly and repeatedly stated intention of the government, elected 2 years after the pledge was made in a high profile speech, where the manifesto they fought the 2015 general election on reiterated that pledge, but when the legislation was pushed through Parliament it was made perfectly clear the government intended to act on the result of the referendum and our MPs (the majority of whom stood on the aforementioned manifesto) and Lords collectively saw fit to allow the legislation through and the referendum to take place given this clearly stated intent. Then, when the campaign started, it was also made clear to voters that the vote would count.
It seems to me to go back on this policy would be a betrayal of Cameron’s original promise, the Tory manifesto and those who voted for it on the basis of it containing this pledge and a betrayal of the > 17 million voters who voted to Leave in a referendum where the clear expectation and intention was that the result would be honoured.
For the record, I voted Remain.