The common view that the EU referendum is advisory only could be proved wrong, a QC has argued ahead of next month’s Supreme Court hearing of the controversial Art 50 case.
Writing in NLJ this week, Nicholas Strauss QC, of One Essex Court, suggests the government could reconsider its “concession” that the referendum was advisory. It could then “sidestep all the other arguments” put forward in the Art 50 case.
Strauss says the government could argue that neither the Referendum Act 2015 nor the ballot paper said the referendum was only advisory. Moreover, the justification for the view that Parliament cannot be taken to have intended to curtail its sovereignty unless clear words have been used “is weak”—a binding referendum does not detract from sovereignty but is an expression of it.
Strauss says: “As the foreign secretary said, in introducing the Referendum Bill: ‘The decision…should be taken by the British people, not by parliamentarians.’ and every household received a government leaflet saying much the same.”
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