‘The final decision’: or was it?

23 January 2013, Bloomberg: ‘this will be your decision’

David Cameron, in his Bloomberg speech of 23 January 2013 in which he announced a new Conservative Party policy to hold a referendum on the UK’s membership of the European Union, made it clear that the decision was to be made by the British people:

Accordingly, the 2015 Conservative Manifesto contained an undertaking to allow the British people to make the decision (‘We will let you decide’) about EU membership:

9 June 2015, House of Commons: ‘the final say’

On 9 June 2015, just a month after the election returned a Conservative majority, the Foreign Secretary introduced the EU Referendum Bill to the House of Commons at its Second Reading. He said (Col. 1047) that the ‘one clear purpose’ of the legislation was

‘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.’

Underpinning the whole process (Col. 1051) would be ‘an absolute commitment to allow the British people to have the final say’ on the issue:

Concluding (Col. 1056), Hammond thought that there would be general agreement on the ‘simple principle that the decision about our membership should be taken by the British people’ and not by Government ministers or ‘parliamentarians in this Chamber’:

Hilary Benn the then Shadow Foreign Secretary did indeed register his agreement with Hammond’s ‘simple principle’, speaking in reply (Column 1057) of the profound consequences of the referendum for the future of the country, ‘as the people of the United Kingdom make the most important decision on our place in the world for 40 years’:

He ended his speech with the short sentence (Column 1064) ‘It will be for the British people to decide’:

I have scanned (but admittedly not read every word of) the speeches that followed. There were some who were opposed to the holding of the referendum, but I have not found any objection made to the principle that the referendum, if held, should give the final say to the British people.

13 October 2015, House of Lords: ‘the final say’

On 13 October, Baroness Anelay of St Johns, a Minister of State in the Foreign Office, opened the debate (col. 89) on the Second Reading in the House of Lords with another reference to the referendum giving the British people ‘the final say’ on our EU membership:

and ended by saying that this was ‘one of the biggest decisions that the people of these islands have been asked to make in a generation’:

Replying for the Opposition (col. 94), Baroness Morgan confirmed her Party’s support for a referendum to ‘settle the question’:

Again, I have scanned the subsequent speeches, and this time found one objection, from Lord Higgins, to the Government’s proposal to give the British people the final say. He said (col. 153) that he had ‘always been totally opposed to referendums’, and especially to ‘binding and mandatory referendums’. He was glad therefore to see in ‘a note prepared by the [House of Commons] library’ that the Bill:

“does not contain any requirement on 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”

He went on to say in effect that the vote – presumably he had in mind in particular a vote to leave the EU – would need to be implemented by Parliament, so that the Minister had been incorrect in saying that the people were to be given ‘the final say’:

He also proposed, making reference to previous remarks by Lord Norton, that consideration should be given to what should be counted as a ‘decisive majority’, and what should be the ‘threshold for voting’, implying perhaps that a majority of more than 50% could be set as a requirement for a Leave decision:

Lord Norton’s view

Lord Norton had indeed suggested (col. 147) setting a threshold for voter turnout, especially if the referendum were to be binding. He does not appear to have suggested requiring a majority greater than 50%. He says that an advisory referendum would give Parliament the opportunity to consider voter turnout when ‘considering whether to legislate in line with how electors have voted’:

At first sight, it would appear that Lord Norton, who is Professor of Government at the University of Hull and a constitutional expert, was of the opinion that legislation would be required to implement the event of a Leave vote (no action being required in the case of Remain). However, it is clear from his blog post on the High Court judgement, which he criticises as ‘flawed’ and based on mistaken reasoning, that he is not of the opinion that legislation is required before the Government makes the Article 50 notification. Lord Norton was a member of the House of Lord Select Committee on the Constitution when it conducted its 2009-10 enquiry on Referendums in the United Kingdom. The Report contains a section entitled ‘Advisory or binding referendums?’ and addressing the question of the title. It seems to be assumed there that legislation would be required to implement the result of referendums. Clearly, that would be the case for many questions that might be asked of the electorate, and it is perhaps not too surprising that there does not appear to be any explicit consideration of the possibility of a referendum result being implemented by Prerogative. There had been evidence, for example, on whether referendums should be conducted before or after implementing legislation made its way through Parliament:

I do not think that the lack of reference in the Report to the possibility of a referendum result being implemented through the Prerogative should be taken as implying that such a form of implementation would be unconstitutional. It may simply be that the focus of the Committee was elsewhere. It may perhaps be, similarly, that when Lord Norton spoke about Parliamentary consideration of legislation consequent upon the result of an advisory referendum, he had in mind these Committtee discussions to which he had been party concerning advisory referendums in general, and did not mean to imply a restriction on the exercise of the Prerogative.

Accordingly, it strikes me as a possibility that when Lord Higgins spoke of the need for Parliament to implement the referendum result, he was following Lord Norton, and at the same time perhaps basing his remarks on the general finding of the Constitution Committee with regard to advisory referendums, rather than taking a position on a constitutional limitation on the Foreign Affairs Prerogative.

Thus with only one or two definite objections having been made, or hesitations expressed, in a debate lasting about eight hours, to the Government expressing a commitment to giving the British people the final say on EU membership, Baroness Aleney was able to begin her closing speech in terms that, taken as a whole, reaffirmed that commitment, even if in marginally less definite terms:

The House of Commons Library Briefing Paper

The House of Commons Library ‘note’ from which Lord Higgins had quoted was a Briefing Paper published on 3 June 2015, six days before the commitment made by the Foreign Secretary in the House of Commons to give the British people the final say on EU membership. It was entitled ‘European Union Referendum Bill 2015-16’ and was authored by Elise Uberoi, a Research Analyst/Assistant Library Clerk in the Library. It is of extra interest because it is referred to in the High Court Judgement (at para. 107). The quoted passage is contained in a section on ‘Types of referendum’:

Lord Higgins had quoted Uberoi’s factual statement that the Bill contained no requirement for the UK Government to implement the referendum results, but then gone on in his speech to express concern that the public would only find out at the end of the process that the result would ‘not automatically get implemented by Parliament’. If he had continued his second quoted sentence to its end, he would have made it clearer that Uberoi was portraying the referendum as advisory to the Government, rather than to Parliament:

Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions.

The examples Uberoi gives of the devolution referendums did result in the Government introducing legislation to Parliament, but there is nothing in what she writes to suggest that the Government, if it chose to act upon the advice of the British people, was bound to do so through legislation rather than through the Prerogative.

The EU Referendum Act did not itself bind the Government to implement the result of the referendum. The Government bound itself by the very firm and absolute commitments made by the Prime Minister, in the Conservative Party manifesto, and in the statements made by Ministers to both Houses. Further such commitments to the same effect continued to be made by the Government up to the time of the referendum. Moreover, as I will now show, there were repeated assurances that the decision of the British people would be final, with the definite implication that no further decision would be required by any other party, and in particular not by Parliament.

10 November 2015, Chatham House: ‘The final decision’

The next month, David Cameron gave a speech on the European Union at the Royal Institute of International Affairs, Chatham House. He referred back to his 2013 Bloomberg speech and said that he had then promised the British people ‘the final say’ on EU membership:

Then towards the end of his speech the Prime Minister addressed the British people and said that it would be ‘your decision’ whether to remain in the EU, and ‘Nobody else’s’, specifically ‘Not Parliament’s’. The ‘country’s destiny’ would be ‘in your hands’, and it would be ‘the final decision’:

22 February 2016, House of Commons: Cameron on Article 50 timing

On 19 February 2016, the European Council agreed ‘a new settlement for the UK within the EU’. David Cameron addressed the House of Commons on 22 February. It would be ‘a vital decision’ that was to be taken at the referendum, and it would be ‘a final decision’:

By saying that a Prime Minister could not ‘ignore the express will of the British people to leave the EU’, he rather implied that it would be for the Prime Minister to implement such a decision if it were taken. This becomes more explicit in his immediately following remarks where he said that the triggering of article 50 should take place ‘straight away’, in the event of a Leave vote:

Clearly then, there would be no time for any consideration by Parliament before the notification was made. The Prime Minister answered questions on his statement for more than two hours. Both Kenneth Clarke and Nick Clegg, for example, asked questions and, according (col. 67) to the Speaker, a total of 103 backbenchers took part. Not one questioned the right of the Government to trigger Article 50 ‘straight away’.

29 February 2016: ‘The result … will be final’, Cm 9216

One week later, on 29 February 2016, the Foreign Secretary issued Cm 9216 ‘The process for withdrawing from the European Union’. It stated that the ‘result of the referendum’ would ‘be final’, and then quoted the Prime Minister’s statement to the Commons of the previous week to the effect that ‘the process of exit’ would ‘start straight away’:

6 April 2016: ‘The Government will implement what you decide’

On 6 April 2016 the Cabinet Office published a booklet ‘providing important information about the EU referendum’. It was entitled ‘Why the Government believes that voting to remain in the European Union is the best decision for the UK’, and was sent to every household in the country. We were ‘to decide whether we should remain in or leave the European Union’:

The booklet ended by repeating that this was our decision, and the Government undertook to implement what we decided:

It was thus made clear once again that the Government believed it had the power to implement a decision to leave the EU. I have not yet found any protesting voices asserting at this stage that it would be illegal for the Government to implement a Leave decision by triggering Article 50.

27 June 2016: the challenge from Barber, Hickman and King

Four days after the referendum, Nick Barber, Tom Hickman and Jeff King, all academics in University Law Departments, published an article on the web-site of the UK Constitutional Law Association (UKCLA), claiming that ‘as a matter of domestic constitutional law’, the Prime Minister was unable to deliver the Article 50 notification ‘without having been first authorised to do by an Act of the United Kingdom Parliament’:

It would thus be impossible, if the authors were right, for the Government to fulfil its many times repeated commitment to give the ‘final say’ or ‘final decision’ about EU membership to the British people in the referendum. If Parliament has to make the final decision, then the decision made in the referendum would no longer be the final decision but, perhaps it can be said, the penultimate one.

According to Hickman’s page at Blackstone Chambers, where he serves as a barrister, their seminal article was read more than 30,000 times on the first day of publication alone. An article was devoted to it in the Independent the next day, and reference was made to it in reports in the Financial Times and the Guardian.

27 June 2016: Kenneth Armstrong replies to Barber et al

On the same day, the UKCLA published a response to Barber et al by Kenneth Armstrong, the Professor of European Law at the University of Cambridge. He found their argument ‘intriguing’, but not compelling. He asked ‘why on earth’, if,:

normatively, we think parliament should have the decisive say on whether the UK stays in or leaves the EU, … was that constitutional, as well as normative, principle departed from in entrusting the decision to a referendum?

Constitutionally, Armstrong said, the referendum was advisory, but it was the Government who was being advised, not Parliament. The Government should act upon the advice it had been given, and for:

parliament to frustrate that would be to deny the whole point of the exercise.

The High Court Judgement

On 3 July, the law firm Mishcon de Reya announced that they were bringing a case to prevent the Government triggering Article 50 without an Act of Parliament. They were retaining Tom Hickman alongside Lord Pannick, also of Blackstone Chambers, to act as counsel in the action. The hearings were on 13th, 17th and 18th October in the High Court, with Gina Miller as 1st Claimant and the Secretary of State for Exiting the European Union as Defendant. The Judgement was delivered on 3rd November.

The Court concluded that the Secretary of State does not have power under the Crown’s prerogative to issue the Article 50 notification:

Although not stated explicitly in the conclusion,, it follows from the Court’s reasoning that an Act of Parliament would be required before the notice can be served. Indeed, Lord Millett, before severely criticising the High Court judgement in the UK Supreme Court Yearbook 2016, explained that the Court has ‘ruled’ to this effect:

Is Parliament to make the final decision?

The Government’s appeal against the High Court judgement was heard in the Supreme Court on the 5th to the 8th December, and judgement is expected later this month. If its appeal is turned down, then the Government will be forced to hand the final decision over our EU membership to Parliament. There is no doubt that from a legal point of view Parliament would have real decision-making power in its hands, and would be able to reject a Bill presented by the Government whose purpose was to grant authorisation for an Article 50 notification.

Indeed, Barber et al, in their 27 June article, went so far as to present rejection of such a Bill as the first of the options open to Parliament:

First, it could decide not to grant this power at all.  As some of the core claims made by the leave campaign unravel, Parliament might decide that the case for Brexit has not been made – or was gained under a false prospectus.

Rather charmingly, after their comment on the unravelling of the ‘core’ claims of the Leave campaign (for an unravelling of one important claim made in the April 2016 Treasury Report on the economic impact of leaving the EU, in support of the Government’s advocacy of Remain, see my article on the cost of customs controls), the authors reassure their readers that they are taking ‘no position’ on whether Parliament should take such a course:

A breach of commitment

If the Supreme Court were to uphold the High Court judgement and thus hand the final decision over our EU membership to Parliament, then the decision made by the British people in the referendum would become no longer the final one. Thus the repeated commitment made by the Prime Minister and the Government to give the ‘final say’, the ‘final decision’ over our EU membership to the British people in the referendum and ‘not to Parliament’ would have been breached, by fiat of the Courts. This is no light matter.

Andrew

 

The photograph is of the Prime Minister at Chatham House on 10 November 2015, where he said to the British people that the decision whether to leave the EU would be ‘Your decision’ and ‘Not Parliament’s’, and that this decision would be ‘the final decision.’

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