In a previous post I argued that it is morally wrong to perceive the EU referendum’s result as morally and politically authoritative. My arguments were made in light of the fact that the referendum’s result is not legally binding. Here I wish to highlight a related yet neglected point and to argue that it is also illegal for the Prime Minister to perceive the EU referendum’s result as morally and politically authoritative.
Why is it illegal for the Prime Minister to perceive the referendum’s result as morally-politically authoritative?
On the legal front, the current debate focuses on the question of who has the legal authority to trigger Article 50 of the Lisbon Treaty and begin the Brexit process. Some argue (quite convincingly) that only Parliament has this authority (and see Barber, Hickman, and King’s post). Others argue that Government, and in fact the Prime Minister, acting under the Royal Prerogative, can act without the approval of Parliament. The latter is, apparently, the view of Government’s lawyers.
If Parliament is not required to exercise its legislative power in order to authorize the Prime Minister to issue a declaration under Article 50, the Prime Minister has wide discretion as to whether to issue a declaration. This is so because the referendum’s result is not legally binding. It is merely advisory. There is one thing, however, that the Prime Minister can’t do: the Prime Minister can’t treat the referendum’s result as binding and to issue a declaration under Article 50 merely because ‘the people have spoken’. The Prime Minister can’t do that because Parliament said so.
Unlike the alternative vote referendum in 2011, which did mandate executive implementation (see the Parliamentary Voting System and Constituencies Act 2011), no such provision was contained in the European Union Referendum Act 2015. All that the Act states is that ‘a referendum is to be held on whether the United Kingdom should remain a member of the European Union’. In the absence of a provision that states that the referendum is legally binding, and since a ‘binding provision’ was contained in the 2011 referendum Act, it seems that Parliament meant for the EU referendum to be advisory.
This means that it would be illegal for the Prime Minister to issue a declaration under Article 50 merely because ‘the people have spoken’. If the referendum’s result is merely advisory, it also means that the Prime Minister is under a legal duty to take all relevant considerations into account, which means considering the referendum’s result but also views of experts, new facts and circumstances that were revealed after the Brexit decision, the true and updated will of the majority, and the best interest of the nation. The Prime Minister will also have to act reasonably, i.e. to accord proper weight to these relevant considerations. Here, the arguments against perceiving the referendum’s result as morally-politically authoritative should lead the Prime Minister to accord limited weight to the referendum’s result.
“But we thought the referendum was binding”
Questions may be raised with regard to the contradiction between the law and false, implied assurances that were given to the public as to the binding nature of the referendum. ‘The people’ voted under the assumption the referendum’s result was binding. Apart from rare exceptions (e.g. David Allen Green, Adam Payne, and Haroon Siddique), all relevant actors – the media, voters, politicians and campaign leaders – were (or pretended to be) under the impression that the referendum was legally binding. Voters may argue that they were led to believe that the referendum was legally binding – and that therefore it should be legally binding – or at least morally-politically binding. There are numerous ways to answer this possible argument. Here I will only offer two brief answers: first, even if the belief that the referendum is legally binding resulted from an electoral promise or presentation, politicians are not legally bound to electoral promises (R. v Secretary of State for Education and Employment Ex p. Begbie  1 W.L.R 1115) and certainly can’t be bound to illegal promises. A promise to treat the referendum as binding is a promise to do something which is illegal. In fact, an electoral promise to do something is an irrelevant consideration, a consideration that must not be taken into account by an administrative body, to the extent that it promises something illegal (Bromley LBC v Greater London Council  2 W.L.R. 62;  1 All E.R. 129). Second, and more importantly, no voter in fact relied on the assumption/promise that the referendum was legally binding. Voters did not made their decision on whether to ‘leave’ or ‘remain’ based of the assumption the referendum was legally binding and would not have changed their decision if they knew that the referendum was not binding. In lack of reliance all we have is mere expectation, yet under current law mere expectation that an administrative body will act in a certain way (following either implied or explicit assurance) is not a ‘legitimate expectation’. It does not impose a legalduty on the administrative body to fulfil the expectation (R. (on the application of Lindley) v Tameside MBC  EWHC 2296 (Admin)). In our case, it also does not impose a moral duty to fulfil the expectation, because of all the reasons which were mentioned in my previous post of why the referendum is not morally-politically binding. It is also worth noting that it is ironic that after all the glorious, shameless, unprecedented lies that the Brexit campaign’s leaders fed their supporters, and after all the false promises they made but never intended to keep, the Brexit camp’s leaders still insist that one single political promise will be kept: the promise to take the referendum’s result seriously.
Judicial review and justiciability
Questions may also be raised as to the justiciability of the Prime Minister’s decision on this matter (and see, for example, in Fairclough’s post). In light of UK courts’ general reluctance to decide issues of ‘high policy’ and the general deference that most judges show to the executive, it is not unlikely that the court will decide that this issue is indeed non-justiciable, i.e. that this is a dispute that should not be decided by the judiciary. A more appropriate judicial approach, one that coincides with the rule of law, would be to apply judicial review with regard to the question of whether the Prime Minister did take all relevant considerations into account and avoided perceiving the referendum’s result as a sole, conclusive reason to issue a declaration under Article 50. The subsequent question of whether the Prime Minister accorded proper weight to the relevant considerations, even though justiciable in my view, may require the court to defer to the Prime Minister’s judgment, at least to a certain extent.
The discussion thus far assumed that the Prime Minister does have legal authority to issue a declaration under Article 50. But what if the court decides that Parliament is required to exercise its legislative power and to enact a law that authorizes the Prime Minister to issue a declaration? Here we have two options. First, Parliament can enact a law that compels the Prime Minister to issue a declaration. This would mean that Parliament decides that the referendum’s result is legally binding. Even though Parliament does have the legal power to enact such a law, it would be morally and politically wrong because of the reasons I previously provided against perceiving the referendum’s result as morally-politically authoritative. Second, Parliament can enact a law that merely authorizes the Prime Minister to issue a declaration under Article 50, without compelling him to do so. That would be the morally-politically right thing to do – and will bring us back to the discussion above about the scope of the Prime Minister’s discretion on this issue.
Whether only Parliament has the authority to trigger Article 50 and begin the Brexit process, or whether the Prime Minister, acting under the Royal Prerogative, can act without the approval of Parliament, both Parliament and the Prime Minister must take into consideration the reasons against perceiving the referendum’s result as morally-politically authoritative. While Parliament is under no legal duty to perceive the referendum’s result as not morally-politically binding, the Prime Minister is under such duty, unless Parliament explicitly states otherwise.
I thank Jeff King for helpful comments on this post.
Dr Yossi Nehushtan, Senior Lecturer, School of Law, Keele University