Parliament will not now sit for five weeks, having been prorogued by the prime minister, overriding Parliament by a highly contentious use of the royal prerogative. After no less than six successive defeats in parliamentary votes, it remains unclear whether he will achieve his aim to leave the European Union, and if so, when and on what terms.
No one questions that the UK, following agreed procedures, can relinquish its membership. In July 2016, following the referendum result, I expressed my view that ‘Parliament, through its well-tried processes, must have the last word in deciding whether we should remain in or leave the EU’ (see ‘Do we have to leave the EU?’ 166 NLJ 7706, p6). Later this was confirmed by the Supreme Court in R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] All ER (D) 70 (Jan). More than three years since the referendum, notwithstanding the affirmative answer of the majority of voters to the question ‘Do you want to leave the EU?’, we have still not left. The reason is failure to agree on the legal or political effect of that answer. Is there a duty to implement it? If so, is it a duty to implement it unconditionally if conditions cannot be agreed?
First, as to the legal effect: there is no basis for the claim that the answer is legally binding in the sense that it places a legal obligation on government to take whatever steps are necessary to withdraw or cancel the UK’s membership of the EU. The referendum was initiated by the European Union Referendum Act 2015 (EURA 2015), which itself follows and partially incorporates the provisions of the Political Parties, Elections and Referendums Act 2000. EURA 2015 directs the conduct and procedural aspects of the referendum. It identifies the question posed by it and the two alternative permitted answers, but says nothing about the consequences of a majority vote for either answer. There is no legislative requirement on the government or Parliament to implement the vote to leave. The House of Commons briefing paper issued prior to the referendum said it was consultative, continuing ‘the UK does not have constitutional provisions which would require the results of a referendum to be implemented’. That of course does not exclude other promises or commitments to implement the referendum result which may be claimed as binding in some nonlegal sense, such as those appearing in party manifestos before the 2017 general election. The conflict between legal and political obligations is at the root of the present impasse.
It is easy to see now that the 2016 referendum—at least in the form adopted and presented by the government of David Cameron—was a mistake. The simple ‘yes or no’ question ignored the legal complexities of leaving and the need to determine what should or could follow leaving. The EU referendum could have been useful if its purpose was simply to gauge public opinion. Instead, the government presented it as an opportunity to decide the issue. To treat the referendum result as determinative is to usurp the role of Parliament and to breach the very principle which many leave supporters claimed to be defending: parliamentary sovereignty.
A three-way fork in the road
The folly of leaving without provision for the future relationship of the UK with the EU has become increasingly obvious. It would have been prudent to resolve it before giving the notice under Art 50 of the Treaty on European Union which created an automatic departure date—extendable only with EU approval. We are now torn three ways: between leaving with no deal with the EU, or with a deal, or remaining as EU members. At the time of writing, the European Union (Withdrawal) (No 2) Act 2019 has become law. This requires the prime minister to seek an extension of the date on which the UK will leave the EU from 31 October 2019 to 31 January 2020, unless in the meantime the UK and the EU have reached a deal, or both houses of Parliament have agreed to leaving with no agreement. Yet the prime minister is holding to his claim that the UK will leave on 31 October, achievable lawfully only if there is a deal or the EU refuses to agree an extension.
This highlights the most disturbing aspect of this political crisis: the threat to the rule of law. The prime minister has threatened to defy the law by refusing to comply with the requirements imposed on him by the new statute. There is discomfort among his ministers at the prospect of the prime minister facing imprisonment for contempt, and some attempts to row back. The foreign secretary, Dominic Raab—a member of the legal profession—has dismissed the new statute as ‘lousy’ and ‘a bad piece of legislation’. While stopping short of the prime minister’s refusal to comply, he says the government will seek a lawful way of circumventing its requirements. While lawyers daily and quite properly advise their clients on how to minimise the impact of unpalatable legislation, we have surely reached danger point when senior ministers set out to subvert the manifest will of Parliament. David Cameron summed up the argument against a referendum as ‘you could unleash demons of which you know not’. How right he was. But where do we go from here? There is a clear imperative to restore stability. That means the law and the supremacy of Parliament must be observed and, whether or not we ultimately remain in the EU, we must allow whatever time is needed to secure retention, so far as possible, of the economic benefits of membership. It is also time to consider abolition of the royal prerogative: an undemocratic fetter on our democracy.
Sir Geoffrey Bindman QC, NLJ columnist & senior consultant, Bindmans LLP
