I write to ask if you could very kindly advise me as to why it is that Parliament is not being given the chance to debate and vote upon the outcome of the referendum held on 23 June 2016 on the UK’s membership of the European Union, with a view to deciding whether or not to take the ‘advice’ of the advisory referendum. A decision to not take that advice would keep the UK in the EU and end the turmoil into which the country and its economy have been plunged; a decision to follow that advice would then, and only then, mandate the Government to begin considering how it will take the UK out of the EU and to find a new place as a solo entity in our complex world.
Some Members of Parliament respond to approaches such as this by saying that they only reply to communications sent by constituents. Because all MPs debate and vote on matters that affect the whole country, and as the matter about which I now write to you concerns the most important such matter facing our country at present, I hope you will feel able to reply. If not, I will arrange for one of your constituents to write with this request, in order to observe the restriction in question.
Here is the reason for respectfully requesting your advice and comment.
Some Ministers and other MPs have been reported as saying that they regard the outcome of the 23 June referendum as ‘overwhelming’ and ‘clear’ in mandating the Government to proceed with taking the UK out of the EU. The Government appears determined to act as if they had been given a clear and binding mandate, without any consultation of Parliament as to whether the referendum outcome should be followed by a process to take the UK out of the EU.
As a citizen of the UK I take it that Parliament is sovereign. The administration has asserted that it will not consult Parliament on this matter. This appears unacceptable. Its justification for doing so lies in the iterated claims about the outcome of the referendum being ‘overwhelming’ and ‘clear’ and conferring a mandate. Yet it is obvious to the least scrutiny that the referendum outcome is neither overwhelming nor clear, and certainly not a mandate.
The reasons are several.
(1) MPs were advised before debate on the 2015 Referendum Bill that the projected referendum was to be advisory only. Briefing Paper 07212 issued by the House of Commons Library to all MPs on 3 June 2015 explicitly states as follows: ‘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 (etc).’
This is a key matter. If the 2015 Bill had been expressly offered as binding Parliament and Government to the referendum outcome, there would have been discussion of the need for a minimum threshold vote. Briefing Paper 07212 expressly alerts MPs and members of the House of Lords to that fact that ‘major constitutional change is something more important than the result of ordinary elections, and therefore should be the outcome of something more than a simple plurality of the votes.’ (§6, p 26). No threshold was specified in the Bill, because the intention was that the referendum was advisory only.
To treat the outcome of the vote as if it were nevertheless binding, which is what the Government and some MPs are doing, is therefore directly at odds with what Parliament was told about the Bill, and it sits in direct contradiction to the principle underlying the Fixed Term Parliaments Act of 2011, which requires that a 66% majority of the House of Commons is required to trigger a General Election if one is to be held before completion of its fixed term. This principle is that because a General Election can introduce a change of government, which is a major and consequential matter, a supermajority of the House is required to precipitate this possibility (note: possibility) – a possibility, moreover, which can itself possibly be reversed at a subsequent General Election. And yet! – a mere 51.9% vote in an advisory referendum is taking as mandating a definite and permanent change in a far more important matter than a change of government, namely, a wholesale change in the position of the UK, and the loss of a raft of significant rights enjoyed by UK citizens in virtue of also currently being citizens of the EU. This is inconsistent and indefensible.
(2) It is equally indefensible that a number of important constituencies were excluded from the vote, despite being among the most crucially affected by the referendum: 16-17 year olds, British expatriates resident abroad for a longer than a certain period, and EU citizens whose lives, careers and families are rooted in the UK. This too is a serious matter; inadvertently or otherwise, the vote was gerrymandered, and has to be regarded as unfair and unrepresentative, disenfranchising constituencies with more at stake than the generality of voters.
(3) Even if one disregards all the foregoing, there is the powerful point that the 51.9% majority of votes cast on the ‘Leave’ side represents 37% of the total electorate, and 26% of the total population of the UK. On what conceivable grounds can this be taken as any sort of mandate for a government to take the UK out of the EU, still less an ‘overwhelming’ or ‘clear’ one? Given these simple numerical facts, the use of such adjectives as ‘overwhelming’ and ‘clear’ have a large taint of dishonesty about them. On the contrary, these numerical facts say that in considering the ‘advice’ of the advisory referendum, Parliament should reject it.
(4) The ‘Leave’ side of the campaign offered no programme, no road map, no facts about the position of the UK after leaving the EU, no information about relationships with EU or other trading partners, no information about the loss of rights of UK citizens following resiles from EU treaties – in short, no sense of direction for our country. Wild and misleading promises were made e.g. about diverting £350,000,000 EU subsidies weekly to the NHS. Falsehoods about immigrants living in the UK who contribute to its society and economy verged on illegal forms of incitement and, disgracefully, have been acted on as such in some quarters. This, combined with 40 years of anti-EU propaganda by the largest circulation tabloid newspapers, adds up to a distorted, distorting and irresponsible ‘Leave’ campaign which, once again, cannot constitute support for the claim that anything ‘overwhelming’ or ‘clear,’ let alone ‘mandating,’ exists for the UK to quit the EU. On the contrary, serious questions arise about the conditions under which the referendum was held.
(5) It is well-known that before the referendum a majority of MPs and Lords were in favour of continued EU membership. Continued EU membership is – was – the stated policy of this Government, on which platform it was elected in the last General Election. These views in favour of continued EU membership were presumably based on informed judgment as to what is in the best interests of the UK. If this was the case before 23 June 2016, then, in light of the foregoing points, what can possibly justify (a) no discussion in Parliament whether or not to take the ‘advice’ of the advisory referendum, and (b) a dramatic change of mind on the part of people whose informed and considered judgment before 23 June was that continued EU membership is in the UK’s best interests?
Taking all the foregoing together, it is clear that there is complete justification for a demand for Parliament to discuss whether or not to take the ‘advice’ of the advisory referendum, before any discussion of ‘Hard’ or ‘Soft’ or any other sort of ‘Brexit.’ Whether to take that ‘advice’ has not been decided yet, except by Mrs May and her Ministers. Because discussion of whether to take the ‘advice’ of the advisory referendum has not occurred, and because a ‘Brexit’ has not been mandated either by Parliament or the country, the country has every right to expect its sovereign Parliament to address the issue, and indeed to demand of it that it do so.
The public is conscious that some MPs are minded to put the tenure of their own seats before the interests of the country, using the excuse that even though they are themselves Remainers they will support Brexit because there was a Leave majority in their constituencies – and so they choose to reinvent themselves as messengers rather than representatives, and accordingly vote against their own better judgment and what they know is best for the country. Such MPs might have the following pointed out to them: the next General Election is scheduled for 2020. A week is a long time in politics. They therefore have plenty of opportunity to show leadership, to explain, encourage, make the case, and prove themselves excellent constituency MPs: and thus hope to retain their seats. Principle is always better than pusillanimity. MPs often vote on measures that are not popular with the public – for increased taxes, against capital punishment – and they can seek to make the case as to why, acting in the best interests of their constituents. This is no different – except that it is more important. Finally, such MPs might be reminded that it is only 37% of all who were given the chance to vote in the referendum who voted Leave; that is just one quarter of the UK population. They will have a majority on their side if they vote to abort Brexit, already so damaging, and keep the UK in the EU.
So: please kindly do tell me, in your role as legislator, as representative, as member of our Parliament, whether in light of the considerations (1)-(5) above you will move, with all your fellow MPs, to assert the sovereignty of Parliament in the matter of deciding whether or not to take the ‘advice’ of the advisory referendum?
Professor A C Grayling
New College of the Humanities