I’m so tired of people who wish to frustrate the process of Brexit, arguing that “the referendum was only advisory; it was not a binding referendum”.
Let’s put this argument to bed once and for all. Yes, it is true that from a constitutional point of view, referendums in the United Kingdom are seen as advisory. In order for a decision to be binding, it has to be implemented by our Parliament. No special laws were passed in order to make the EU referendum binding – it followed the same rules as all previous referendums in the UK.
So yes, from a legal and constitutional perspective, the referendum was advisory. But this does not change the fact that David Cameron, in his Bloomberg speech that set out the basis for the referendum, said “I say to the British people: this will be your decision”. He went on to say “you, the British people, will decide”.
At no point did he say, “We will ask you to make a decision and then decide for ourselves whether or not to implement your decision”.
Leaving aside David Cameron’s words, the “advisory” nature of the referendum does not change the fact that the government leaflet, sent out to every household in the UK and setting out in no uncertain terms why the government was backing the UK remaining in the EU, stated “This is your decision. The government will implement what you decide”.
And the advisory nature of the referendum does not change the fact that on every other occasion on which the British public have been asked to respond to a referendum, the majority decision in that referendum has been implemented. The only occasion on which the simple majority decision was not implemented, was the referendum on Scottish devolution. This returned a result of 51.6% for devolution and 48.4% against, but devolution did not proceed because the turnout was only 63.6%, meaning only 32.8% of the electorate had actually voted for devolution. As a threshold had been set, stipulating that the referendum result would only be valid it it was endorsed by 40% of the electorate, the result was deemed invalid.
I can immediately hear Remainers shouting “but the 40% threshold was not met for the EU referendum!” (Turnout was 72%, and 52% of voters voted to leave, giving a total of 37.4% of the electorate).
And this would be a valid point, had any threshold been set. But the problem was, there was no such threshold. It was made clear that the decision would be taken on a simple majority of those who voted – so the 52% vote for Leave was seen as a valid decision for Leave.
For comparison – while the decision to leave the EU is inarguably much greater than the decision over whether or not to form the Welsh Assembly, I can’t resist pointing out that the referendum on whether or not to form the Welsh Assembly, returned a 50.3% majority Yes vote, on a 50.1% turnout. Despite the fact that this amounted to only 25% of the electorate voting for it, this was considered sufficient for the Welsh Assembly to be formed.
Personally, I think a threshold should have been set for the Brexit referendum – a supermajority of either 50% of the electorate, or a two-thirds majority of those who voted, or some other threshold that would have ensured that we would not be in the situation in which we now find ourselves, where the percentage difference between Leave and Remain is so small that the country finds itself at loggerheads.
Historically, however, the government has always been reluctant to set thresholds for referendums. The referendum on Scottish devolution, mentioned above, was in fact the only referendum in the last 50 years for which any threshold was set. After all, the whole point of a referendum is to gauge popular support for a given issue, generally with the intention of “settling” that issue through public consultation. Setting thresholds only serves to reduce the likelihood of a final decision being made.
In the case of the EU referendum, the government must have realised it would be extremely difficult, if not impossible, to get a supermajority for Remain. They were hoping that by having a referendum, even if the British people voted narrowly for Remain, it would be sufficient to settle the question of EU membership once and for all. They never considered the fact that the decision would be for Leave – hence their failure to plan for such a decision, and the mess in which we find ourselves now.
Despite all this, thankfully Parliament recognises that the “advisory” nature of UK referendums does not give MPs the right to ignore the wishes of the British public – hence why Parliament voted overwhelmingly (by 498 to 114) to trigger article 50. The referendum itself may have been advisory, but Parliament recognised the fact that the decision could not simply be ignored, and the parliamentary vote was binding. Surely it’s now time we all accepted the result and moved on to trying to find the best way forward for the UK, outside the EU?