Early in June Counsel Magazine online published an article in which I contended that the Prime Minister’s 29 March 2017 letter to President of the Council of Europe Donald Tusk did not, despite its claim, actually trigger Art 50 of the Treaty on European Union (“Article 50: the trigger that never was?”). My argument was and remains that no decision or equivalent declaration of intention has ever been made by the UK to leave the EU and the government enjoys no mandate to embark upon the journey to withdrawal.
Having further contemplated the issue I have formulated a further argument which arguably makes the case against the existence of a mandate for invoking Art 50 incontrovertible. The purpose of this article is to highlight that new argument, which is likely to provide the basis for discreet steps to be taken to bring the issue before the European Union Court of Justice. If the argument succeeds the negotiations will be brought to an abrupt halt.
Article 50(1) declares that “[a]ny Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” The first sentence of para (2) provides that “[a] Member State which decides to withdraw shall notify the European Council of its intention.” Para (1) expresses the obvious principle that no Member State is permanently locked into membership, but its stipulation that a decision to quit the EU must made in accordance with the Member State’s own constitutional requirements was conceived in order to prevent the leader of a coup d’etat, for example, or a de facto dictator, from circumventing the laws of the particular state to terminate membership.
The 2016 Referendum & its status
The Prime Minister’s letter to Donald Tusk was the outcome of the European Referendum held on 23 June last year, in which 51.9% of all who cast a vote chose withdrawal. However, as statutorily formulated by the European Union Referendum Act 2015 (EURA 2015) the Referendum was incapable of investing a majority vote with the status of a legally binding decision or expression of intent, whether it was 51% or even 99%.
On the face of it the text of the EURA itself provided little guidance on the outcome. Section 1(1) merely provided: “A referendum is to be held on whether the United Kingdom should remain a member of the European Union.” Subsection (4) stated: “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?’ Subsection (5) provided that the alternative answers were to appear on the ballot papers were— “Remain a member of the European Union” and “Leave the European Union.”
However, the Government’s projected purpose of the Referendum became clear when the Bill that became EURA was introduced before Parliament. The House of Commons June 2015 Briefing Paper and Minister of Europe David Liddington’s statement to the Commons introducing the Bill together made it abundantly clear that it contained no provision for a threshold vote requiring the government to implement the result of the Referendum, which was merely advisory, pre-legislative and consultative, giving the electorate an opportunity to voice an opinion which would then influence the government in its policy decisions.
Had the government intended to make the Referendum decisive it would have included the provision for a threshold, the level of which would have been debated (see Richard Bird, “Why the UK needs another EU debate and vote,”) November 1, 2016, and “How the EU Referendum was hijacked,” June 12, 2017, Huffington Post blogs). It is likely that the debate would have centred on whether a decisive leave vote would require a “super-majority” of two-thirds of the registered electorate (to include de facto abstentions) – the classic threshold used in special company law and United Nations resolutions and in most jurisdictions which employ referenda to determine major constitutional change. Indeed, a decision by the House of Commons to dissolve itself before the expiry of the normal fixed term of five years requires a two-thirds majority, including vacant seats (Fixed Term Parliament Act 2011, s 2).
The advisory status of the Referendum was affirmed by the Supreme Court in the government’s appeal against the case brought by Gina Miller in which it was held that in the particular context of EURA the phrase “in accordance with its own constitutional requirements” in Art. 50(1) meant “by an Act of Parliament,” the only means by which the Referendum result could be made binding: R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant)  UKSC 5.
From opinion to decision
Although EURA 2015 was devised to confine the Referendum to an advisory exercise the Conservative Party had stated in their 2015 Manifesto that they would “respect the outcome,” an ambiguous phrase which could have meant no more than that it would be seriously considered by Parliament in making a decision rather than that it would be slavishly followed. Then, early in 2016 Prime Minister David Cameron announced a radical shift of approach. No longer would his government simply respect the outcome. Addressing the House of Commons on 5 January he stated: “Ultimately, it will be for the British people to decide this country’s future by voting in or out of a reformed European Union in the referendum”. In other words, a bare majority vote to leave would be implemented by the government. He was evidently confident that the majority would vote to remain and that he could afford to placate the Conservative Eurosceptics and bring finality to the issue by giving such an undertaking (see Richard Bird’s blog, above, 12 June 2017). That his statement, however, had no legal significance was explicitly affirmed by the SC in Miller, when they noted that ministerial descriptions of the Referendum as decisive were not law (para ).
Skewing the outcome: denying expatriates the vote
British subjects resident outside the UK were formerly precluded from registering to vote in UK Parliamentary elections but in 1985 were permitted to vote for up to 5 years after taking up residence abroad. That period was increased to 20 years in 1989 but then reduced to 15 years in 2002 (see Neil Johnson and Isobel White, Overseas voters, HC Briefing Paper 5923, 23 March 2017, pp 9-10). In 2015 the Conservative Party manifesto included a commitment to give the vote for life to all UK citizens resident abroad (ibid, p.6), which would have extended the franchise to an estimated 2.5 million adults. It was an undertaking the Conservative victors of the 2015 Election failed to meet, ostensibly citing insufficient parliamentary time. The vast majority of those in this bracket who resided in the EU would have been likely to opt for remain, which may in part at least explain why the comparatively straightforward legislative measure required was not implemented.
In late 2016 Prime Minister Theresa May reiterated the enfranchisement pledge, an undertaking which may be regarded as an open admission that the 2016 Referendum had of itself given a decisively false reading of the will of the British people.
From Miller back to Parliament
In Miller the SC held that although the Referendum result required an Act of Parliament to be elevated to a binding decision of the UK to withdraw from the EU there was “no equivalence between the constitutional importance of a statute, or any other document, and its length or complexity” (para ). Thus, it might say no more than that “the United Kingdom shall withdraw from the European Union,” but it could actually have been briefer still, as will shortly be shown. Having been told by the Supreme Court that an Act of Parliament was needed to make the leave decision the ball was now in the government’s court but it is contended that the one thing which the European Union (Notification of Withdrawal) Act 2017 did not do was enshrine the result as a constitutional decision. The Act’s only section provided:
(1) The Prime Minister may notify, under Art 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the [EU].
(2) This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.
Introducing the Bill to the Commons, Brexit Secretary David Davis explained that the Bill was merely a procedural measure and was not–
“…about whether the UK should leave the European Union or, indeed, about how it should do so; it is simply about Parliament empowering the Government to implement a decision already made – a point of no return already passed.” (see https://hansard. parliament.uk/Commons/2017-01-31/debates)
A statement to similar effect was made in the Lords. Parliament duly did what it was bid and the Bill passed into law without amendment. Davis’s statement that the Bill would authorise the Prime Minister “to implement a decision already made” is significant although it did not in terms include the phrase.
The government’s likely argument in favour of implicit ratification
“Implementing” the referendum result
That word “implement” in Davis’s speech is in fact key to predicting how the government would be likely to argue its case in the event of any challenge by way of judicial review. To comply with Miller, the government would need to establish that it signalled to Parliament that giving the Prime Minister authority to implement the Referendum result as a withdrawal “decision” meant that they would be implicitly ratifying it and that Parliament duly did so. In order to cite Davis’s words by way of explaining the meaning of the statutory wording the government would have to secure leave under Pepper v Hart  3 WLR 1032, to establish that it was ambiguous. It is difficult, however, to see any ambiguity in the words, which are quite clear. They do not convey any words indicative of the enactment of a decision or affirmation of an intention to withdraw. There is no ambiguity.
Argument that Acts of Parliament are presumed to be purposive
The government would doubtless argue that if it did not have the effect of ratifying the Referendum result as a withdrawal decision the measure would otherwise have been quite pointless, because the Prime Minister, as head of the government, already had authority to give notice under Art 50(2) of any decision to withdraw which parliament might make. Parliament is presumed not enact legislation without purpose, they would argue.
The case against implicit ratification: supporting arguments
On the face of it the likely arguments in favour of implicit ratification might seem to carry some weight. However, the arguments against implicit ratification ought, if there be any justice in the world, to be regarded as ultimately compelling, with the government enjoying no mandate to pilot the realm’s exit from the EU. Before looking at the key reason it is necessary to examine seven supporting points.
1. Pointless statutes are not unprecedented It would not have been the first time in Parliament’s recent history that through a failure of proper scrutiny an enactment had sadly proved to be superfluous.
2. Parliament must squarely confront the objective It is now well established that in enacting legislation adversely impacting upon the fundamental rights of the citizen Parliament must “squarely confront” the claimed objective of a statute in precise terms, and accept the political cost (set out in a series of decisions over recent years beginning with R v Secretary of State for the Home Department, Ex p Simms  2 AC 115, DC, affirmed by the SC in Miller at paras - and -; see also R (Jackson) v Attorney General  UKHL 56).
3. Deliberate omission of words declaratory of the withdrawal intent As already noted, in Miller the SC had hinted that implementation of the Referendum result could have been achieved with the briefest of words, there being “no equivalence between the constitutional importance of a statute … and its length or complexity.” This could in fact have been achieved by inserting the two words “hereby affirmed” or "hereby declared" after the word “intention” and it may be asked why it occurred to no one in Government or in Parliament to seek their inclusion. The answer may be thought to be compelling. The omission of the two vital words was deliberate and there is nothing ambiguous in the statute. The vast majority of Parliamentarians doubtless took their cue from the government. They assumed from what they were told – or tactically suspended their disbelief – that they were not being asked to ratify the Referendum majority as the withdrawal decision or expression of intention, and so, obligingly, did not. The whole future of our country and of Europe could be determined on the back of a courtroom squabble over the inclusion or omission of a mere two words!
4. Parliament ignored Supreme Court stricture that a ratifying Act would be needed In Miller the Supreme Court had noted that implementation of the Referendum result would require a statute, that Parliament had not yet passed such a statute and that the briefest provision would suffice. That Parliamentarians chose not to adopt the Supreme Court lead and omitted such brief words from the Bill suggests that they did not intend to ratify the majority opinion in the Referendum as a UK statement of intention.
5. Circularity The Prime Minister could not have given valid notice under Art 50(2) unless there had been a decision under Art 50(1). The Referendum result itself was not a valid decision and the Act did not in terms enact the decision by affirmation of the Referendum result. it would therefore be circular, or petitio principii – assuming what one seeks to prove - to argue that explicitly granting authority to give notice under Art 50(2) of a decision already made under Art 50(1) implicitly therefore enacted that prior decision.
6. Use of permissive tense rather than Art 50(2) imperative In my Counsel Magazine Online article “Article 50: the trigger that never was?,” I had noted the solecistic use in the Act of the transitive “notify” without a subject (“the European Council”) rather than the more proper “give notice of.” A rather more fundamental, contrast, however, was that between the imperative “shall notify” in Art 50(2) and the permissive “the Prime Minister may notify” in the Act. Had the authorisation to the Prime Minister to give notice been intended implicitly to enact the prior condition for such notice to be given, that is to say the affirmation of the UK's intention to leave the EU, it would arguably have expressed an obligation to give notice consonant with that laid down by Art 50(2) to notify that intention to the Council where the Member State had made a withdrawal decision under Art 50(1). Statute does not normally employ the linguistic device of using the permissive to masquerade as a polite form of imperative, such as that said to be used by the pregnant Queen Victoria in dismissing the disagreeable Duchess of Buccleuch from her presence with the admonition: “You have a cold, Duchess; you may withdraw.”
7. No implicit correction of a fundamentally erroneous supposition The government predicated the Bill on the supposition that the leave decision had already been made, or collective UK withdrawal desire evinced. Parliament was expressly instructed that they did not therefore need to make the decision. It might seem to follow from this that they would assert that this explains why the Bill contained no provision for enactment of the decision. However, they could hardly advance such an explanation on judicial review, since it would contradict Miller. They would have to assert instead that the effects of their own deliberate mischaracterisation of the result as an expression of the UK’s intention can be erased simply by reading into the Act implicit words which they plainly never intended should be there in order to make the statute do the job which they had erroneously claimed had already been done. It amounts to this. Government ministers go to Parliament and tell legislators that the Bill is not about the making of a decision, that the decision is a fait accompli and is out of their hands. Then, when forced, for the purpose of proceedings, to resile from that assurance the government do an about face and claim that Parliamentarians were implicitly asked to make the leave decision and somehow did so. To say that the government cannot have it both ways is putting it mildly. Alternatively it may be envisaged that the government would claim that had legislators been given the option to debate the merits and make the decision it can be assumed that they would have voted to make a withdrawal decision. The evidential basis of such an assumption remains unclear. To describe such a mode of reasoning as coming from the pages of Alice in Wonderland would be no exaggeration
Possible motives for deliberate omission of words of ratification
It may be conjectured that the government perceived that they would be left as hostages to fortune if they asked Parliament to make the decision. They could be far from sure that there were not a sufficient number of “remainers” in the Commons, unmoved by the mantra of the “people’s will,” who would relish the chance to sink the Brexit ship. Equally it may also be that they wished to retain the option of blaming the decision on “the British people” if Brexit proves to be a national and international calamity or they are unable to secure a beneficial deal.
Main argument against implicit ratification
True reading of the ballot
In addressing the main reason why implicit ratification is unworkable it is essential to examine what it is that Parliament would have been professing to ratify. This will involve focusing on the key fact that although 51.9% of the ballot chose withdrawal this represented only 37% of the registered electorate. Those who did not vote can properly be regarded as having abstained. (For a detailed break-down of the voting figures see https://www.electoral commission.org.uk; for an informative comparison with the voting figures in the 1975 European Referendum, see Jon Danzig, “The EU Referendum was divisive, not decisive,” Reason2Remain, 28 July 2017.)
Illogicality of designating a minority as a majority
Whether a wafer thin majority of 51.9% of the votes cast, not counting abstentions, could ever be said to represent a decision of the British people to change the status quo is questionable enough. But that slight balance in favour of withdrawal is not the issue. By ratifying the result Parliament would have been sanctioning the principle that the ostensible desire for withdrawal from the UK of no greater a minority than 37% of the registered electorate (not counting the estimated 2.5 million expatriates who were promised the franchise but deprived of it on a wholly implausible pretext) might be taken as the manifestation of the intention of a decisive majority of the UK as a whole. Such a proposition is a mathematical absurdity. It is preposterous. It would stand logic on its head.
Presumption that Parliament does not enact gibberish
It may be assumed to be a fundamental principle of the rational working of the British Constitution that Parliament never enacts gibberish.
The choice between superfluity and nonsense
In interpreting the ambit of the Act, then, the choice is between: (a) a pointless exercise—giving the Prime Minister generalised authority which she already enjoyed; and (b) approving as fact a proposition which was its own antithesis, decreeing black to be white, proclaiming the Emperor’s New Clothes to be a beautiful raiment, instead of the reality: his birthday suit. Where the choice is between Parliament having enacted a statute based on a fundamentally illogical proposition and a statute which was superfluous and pointless – hardly an unprecedented event in the annals of the British Parliament – there can be no contest. It must be that Parliament enacted a pointless statute.
In terms of administrative law, for the government to have considered that the 2017 Act delivered them a mandate to take Britain out of the EU might be described as Wednesbury unreasonable (after the test in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223. For the government to have assumed that Parliament had affirmed a mere 37 per cent of the registered electorate as an expression of the national will to leave the EU is manifestly so unreasonable an assumption that no reasonable person acting reasonably could have made it.
Section 1(2): did it upgrade the Referendum to decisive?
It has already been noted that s.1(2) of the EU (Notice of Withdrawal) Act 2017 provides: “This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.” It may be envisaged that the government would seek to contend that the subsection rendered ineffective the restriction of the Referendum to advisory status imposed by EURA. The consequence, they might contend, was to upgrade the result to decisive and therefore to remove any requirement for an Act of Parliament to ratify, or make, the decision. By authorising the Prime Minister to give notice under Article 50(2), it might be argued, Parliament was by implication empowering the government to treat the result as decisive.
Such an argument would enjoy little merit. The original advisory nature of the referendum could hardly be upgraded to decisive by a side wind without an explicit statutory pronouncement to that effect together with the designation of a threshold such as first past the post. Only by such a provision could the SC’s requirement for an Act of Parliament ratifying the result cease to be applicable. Refutation of the upgrading contention goes hand in glove with the general argument that Parliamentary ratification of the result had to be explicit and precise.
The conclusion then, is that Parliament did not ratify the Referendum result as a declaration of intention to withdraw and that in consequence the Prime Minister on behalf of Her Majesty’s Government was not authorised to invoke Art 50. There is no mandate for the UK to be taken out of the EU.
A possible way forward: referendum to approve or reject a final deal
In the absence of any litigation to declare the Article 50(2) notice invalid, either domestically or in the Court of Justice of the European Union (CJEU), of if any such action were unsuccessful there remains a real possibility in any event that a “second” Referendum might yet be held at the end of the negotiation process. It has been conjectured that the House of Lords may well insist on another referendum, although there is a measure of political nouse in the caveat that this would not be intended to serve as a “re-run” of the first but would merely provide an opportunity for the British public to make a judgment on the outcome of the negotiations. (For two intriguing and nuanced essays on the possibilities by Labour peer Andrew Adonis, see “The way forward on Brexit is a new vote on whatever EU deal is reached,” Observer, 10 September, 2017, and “Lords must add a referendum on Brexit deal to EU (Withdrawal) Bill,” The Times, September 15, 2017. For a report on Adonis’s Observer piece see Toby Helm, “EU immigration offer could lead to Brexit reversal, claims Adonis,” Observer, 10 September, 2016.) How exactly it would work or what the choice on offer might be has by no means yet clearly emerged. It is early days. In various interviews Sir Vince Cable MP, new leader of the Liberal Democrats, has explained that his party’s “flagship pledge” – a referendum “on the facts” rather than a second referendum as such – envisages that towards the end of 2018 the public would be offered the choice between approval of the final withdrawal deal or “exiting Brexit” (Evening Standard, 14 September 2017; The Observer, September 17, 2017; BBC’s Andrew Marr Show, same date). It emerged during the Labour Party conference that pressures are building within the party for a move towards insistence on referendum as to the final deal (Pippa Crerar and Joe Murphy, “Labour War over New Brexit Vote,” Evening Standard, September 26, 2017). A referendum offering such a choice would be welcome as a corrective for the fundamental deficiencies of the 2016 Referendum.
The Salisbury Convention An amendment requiring a new Referendum would not be subject to the Salisbury Convention. The convention normally prevents the Lords from amending any Commons Bill which implements a manifesto commitment. The Conservative and Unionist Party manifesto for the recent General Election stated: “The final agreement will be subject to a vote in both houses of parliament” (Forward, together, https://s3.eu-west-2.amazonaws.com/manifesto2017/Manifesto2017.pdf, p 36). This would not be inconsistent with the holding of a referendum to precede an Act of Parliament or one that Parliament decreed would be decisive. In any event, the fact that the government lost its majority at the 2016 Election would arguably negate the applicability of the Convention.
Action through the CJEU
The present position of the UK government appears to be to oppose a referendum on the outcome of the negotiations but that might well change in the light of the whirlwind of shifting political sands. As things stand it is impossible to predict whether the House of Lords would endorse the Liberal-Democrat position or whether they would even back any further referendum at all.
With no guaranteed certainty that the Lords will insert an amendment providing for a referendum on the final deal with a built-in exit choice there may be another way to address the mismanagement of the 2016 Referendum and its aftermath by securing a new one to include such an option. This lies in appealing to one or more of the EU institutions. It may be conjectured that private EU citizens or Member States with special interests in seeing off Brexit might bring an action in the Court of Justice of the European Union (CJEU) and that this might result in the court issuing an “annulment” – that is a prohibition – against the Commission’s continued participation in the negotiations, applying the catch-all Article 263 of the Treaty on the Function of the European Union:-
(1) The European Court of Justice shall review the legality of legislative acts, of acts of the Council, of the Commission and the European Central Bank, other than recommendations and opinions, and of the acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.
(2) [The ECJ] shall . . . have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.
If the court upheld the proposition that the UK government enjoys no legal mandate to negotiate a Brexit deal – because there has been no withdrawal decision – it would follow that they would be obliged to order the Commission to discontinue participation in the negotiation on the ground that it would otherwise be complicit with the UK government in a breach of Article 50.
If the UK government then wished to continue with the negotiation it would have to return to Parliament with a short Bill declaring the decision to withdraw but with the inevitable egg on their face they might well opt against doing so, with such weasel words as they might be inspired to enlist. If they did go back to Parliament with their tale between their legs the reaction of our legislators is anyone’s guess.
How the EU Parliament could force Referendum II
There are many obstacles to litigation in the CJEU, not least of which is the question of expense facing EU citizens, although it may be envisaged that crowd funding could probably overcome that difficulty. The institutions of the EU enjoy privileged access to the court but hitherto the European Council has shown a marked public reluctance to explore that option, unconvincingly declaring that the validity issue is a domestic matter for the UK (see, eg, response of the EU Council dated August 7, 2017, to Action for Europe petition). It is assumed that this would reflect the attitude of the Commission. Yet the EU institutions can hardly wash their hands of a real possibility that there has been no genuine expression of intention. It would be utterly irresponsible and an abdication of their duty to the Member States and the hundreds of millions of EU citizens to shrug off responsibility and refuse to suspend the Article 50 process pending litigation or proper inquiry. To negotiate on the basis of being misled as to the existence of an intention – and being made aware of the error – is undoubtedly justiciable by the EUCJ.
For those reasons certain Member States may be willing to make a reference under privileged access to the court but so far no State has done so.
However, a swifter and more immediately effective strategy may therefore be a purely political one. The Parliament of the European Union clearly has the power to halt the negotiations. It might well resolve to do so if persuaded as to one or more of the following factors:
(a) that the UK government purported to invoke Article 50 without a mandate awarded in accordance with British constitutional requirements;
(b) that inasmuch as the UK government has justified embarking on the withdrawal process by reference to the outcome of the 2016 Referendum, any Parliamentary ratification (if it exists) of the outcome as a withdrawal decision is invalidated by the fact that the Referendum was fundamentally flawed in operation by the exclusion of expatriates resident abroad for more than 15 years
(c) that such ratification is rendered worthless as a gauge of the “people’s will” by the misuse to which the result has been put by the government.
If the EU Parliament resolved to halt the negotiation process for any of these reasons it might insist on various conditions for resuming them. It might insist that a Bill be presented before the UK Parliament which would then have to debated in full whether to make the decision to leave or not. Alternatively, it might insist that before any such Bill is presented, a fresh referendum be held on a properly conducted basis, with the result not being misused or wilfully misrepresented. In addition to the fact that the British government and many Parliamentarians absurdly characterised the result of the 2016 referendum as having reflected the will of the people there is another potent factor which the EU Parliament would be invited to take into account.
How the post facto construction of the result retrospectively distorted the abstention element
We have already examined the matter of the exclusion from the vote of the expatriates and fact that only 37 per cent of the registered electorate voted in favour of withdrawal. There is another crucial factor which has rendered the 2016 referendum worthless as a test of opinion.
As we have seen, the EU Referendum Bill was presented and duly enacted on the basis that the government would reflect on the outcome and would invite Parliament to debate the whole issue, making a decision on the basis of all the known factors. (That the main factor – the outcome of the negotiation process – was necessarily unknown is beside the point.)
It is not unrealistic to assume – because it was the officially proclaimed basis on which Parliament decreed that the result of the referendum should be treated – that a significant number of those electors who refrained from voting did so precisely because the Referendum was officially vouchsafed to them in Parliament as advisory, a mere test of opinion. Had they known that a bare majority of the votes cast would be treated by the British government and then by Parliament as amounting to a binding decision without any further consideration a significant proportion might very conceivably have chosen to participate. Moreover, it is surely no exaggeration to suggest that an unidentified proportion of that 28 per cent might very conceivably have voted to remain if they had only possessed second sight that the outcome would be manipulated in contradiction of the avowed statutory purpose. Their votes might have been decisive in favour of remain.
For that reason they may be justified in harbouring a legitimate and powerful grievance but it is a cause for complaint not confined to that unidentified number. Had the purpose of the Referendum as ultimately applied been pitched to Parliament when EURA was enacted the result might have been very different. It might have resulted in a significant majority the other way and the aspirations therefore of all who voted for remain have been defeated by the government’s “strategy.”
On any scale of fairness and propriety that factor alone ought to invalidate the fairness and value of the referendum as an accurate gauge of public opinion. When considered together with the mischief over the expatriates, the infamous claim that £385 million per week wold go to the NHS after Brexit, emerging evidence of insidious manipulation of the electorate by “dark forces,” and the possible suppression of inconvenient government research on the economic implications of leaving the EU, it should utterly remove from under the feet of the government and any Parliamentarians who subscribe to the myth of the “people’s will” any grounds for pursuing Brexit on that basis.
To guarantee that the UK Parliament includes in the European Union (Withdrawal) Bill provision for a compulsory second Referendum the institutions of the EU should at least make any further negotiations with the UK government conditional on such a provision.
David Wolchover is a barrister at Ridgeway Chambers and Article6Law Chambers, 2 King’s Bench Walk. He was formerly Head of Chambers at 7 Bell Yard and is the author of many articles and a number of works on criminal evidence and procedure.
NB Since this article was originally published online the author has added point 6 above to further support his argument as to why the 2017 statute did not implicitly affirm the UK's intention to withdraw (updated 11 September 2017). The text onward from the paragraph captioned “A possible way forward: referendum to approve or reject a final deal” was added on 2 October 2017.
David Wolchover contends that there is no mandate for the UK to be taken out of the EU & considers how the European Parliament may force a further referendum