Cold Take: The EU Referendum Act should have included implementation provisions

For A Thing, I’ve been reading the court judgments in the controversial Brexit cases brought by Gina Miller.

The first of these was R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) and [2017] UKSC 5.

The outcome of the case is well known. Theresa May wanted to send the Article 50 notification to Brussels, and believed she could do so without recourse to parliament, because the making and breaking of treaties is a prerogative power. The claimants disagreed, saying that parliament had created new domestic rights and a new source of law when it enacted the European Communities Act 1972, which only parliament could undo.

The Divisional Court and the Supreme Court sided with the claimants. This was an inconvenience to the government, but it was able to secure the Article 50 motivation by means of an Act of Parliament, the European Union (Notification of Withdrawl) Act 2017 c. 9.

Most of the commentary in the immediate aftermath of the judgments focused on what a setback it was for Theresa May and whether Brexit could be stopped. There was a particularly unpleasant crop of articles criticising the judges who made the decision.

However, the precise ratio (legal reasoning) for the decision is interesting. It gives rise to several ‘what ifs’ which are useful to ponder with hindsight.

The notion of parliamentary Sovereignty was crucial to the judgment. The prerogative power to make or break treaties could not trump the supremacy of parliament. The European Communities Act 1972 was a unique ‘constitutional’ statute which created an entirely new source of law (the EEC, later the EU) and associated domestic rights. If all this was to be undone then parliament had to say so.

Unfortunately, parliament had not said so. There was nothing in the European Union Referendum Act 2015 about implementation. It was an ‘advisory’ referendum. So even though the ‘the will of the people’ was (by a 52-48% margin) to leave the EU, that had no effect on the law.

The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors.

A. V. Dicey, An Introduction to the Law of the Constitution

This was a curious omission because other referendums do tend to have implementation provisions embedded into their texts. The Parliamentary Voting System and Constituencies Act 2011 contained such provisions at sections 8 and 9, for example.

All the division, rancour, suspicion and parliamentary shenanigans that sullied our politics between 21 June 2016 and Brexit-day on 31 January 2020, and which has led to a persistent Leave-Remain division that seems to have replaced the old Left-Right dichotomy, can be traced to that omission in the 2015 Act.

If the EU Referendum Act had contained implementation provisions, then the Miller I judgment would have been different, because parliament would have already have been deemed to have sanctioned Article 50.

There would have been no battle between two competing claims of democratic legitimacy (the referendum result, and parliament).

There would have been no question over whether we would be leaving the EU. The debate over the terms of the withdrawal agreement would not have been viewed as a proxy or as cover for a parliamentary campaign to keep Britain in the EU, and thus would have been conducted a little more calmly and rationally.

Crucially, the Courts would not have been placed in the position of handing down legally sound but politically inconvenient rulings, which has in turn prompted the Johnson government to now try to ‘sort the judges’ by circumscribing judicial review.

If the EU Referendum Act had contained implementation provisions, then on 21 June 2016 there would have been no chance to stop Brexit. I’m sure there are plenty of Remainers who were glad of the chance to try to change people’s minds before exit day. But with hindsight, I think it would have been better if we had not had that political fight at all.

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