Is there a Convention that a Referendum binds Parliament?

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Jane Lambert

A tenet of our constitution is that no Parliament can bind its successors. Another is that MPs are representatives and not delegates.  Nothing in the European Union Referendum Act 2015 required the government to implement the vote but, even if it had, it would not have been effective because there has been a general election since then.  There is nothing in law to prevent the legislature from repealing a statute providing for a referendum as easily as it could any other.

So where do Mrs May and many others in her party find support for her curious notion that Parliament is under an obligation to deliver brexit?  Could it be an emerging convention?   If so, it is a very recent one as we have only had three referendums since 1975.  When Winston Churchill proposed a referendum on extending the life of the wartime parliament until victory over Japan, Clement Atlee replied:

"I could not consent to the introduction into our national life of a device so alien to all our traditions as the referendum which has only too often been the instrument of Nazism and Fascism."

Some have argued that the sheer number of votes in favour of brexit give the 2016 referendum a special status.  Perhaps but it is worth remembering that almost exactly the same number voted for the Nazi party in the 1933 Reichstag elections (see March 1933 German federal election Wikipedia).

Parliament has ignored referendum results before even when the majority was overwhelming,  Some 66% of the Western Australian electorate voted for the secession of their state from Australia in 1933. The implementation of that decision required the approval of the UK Parliament because the Australian constitution was then a British statute. Westminster refused to consider secession as I noted in The Western Australian Secession Referendum - A Precedent for Dealing with Troublesome Referendums? 17 Dec 2018 which was probably for the best in view of the war with Japan a few years later (see Sometimes it is a Good Thing to ignore Referendums 19 Dec 2018).

At best the so-called duty can only be a political one arising from the 2015 Conservative election manifesto. There is no reason why anyone else should feel bound to deliver brexit unless they want to do so.  Anyone wishing to discuss this article or brexit, in general, should call me on 020 7404 5252 during office hours or send me a message through my contact page.

Brexit Briefing - December 2018

Blondin crossing Niagara Falls

Author Unknown
First Publication1863
Source Wikipedia

Jane Lambert

As I have repeated many times in this blog, art 50 (3) of the Treaty on European Union provides:

"The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period."

The notification to which this paragraph refers is dated 29 March 2017.  Unless Her Majesty's government enters a "withdrawal agreement" within the meaning of art 50 (3) or revokes the notification before 23:00 on 29 March 2019 the laws that govern the United Kingdom's relationship with 27 of its closest neighbours, trading partners and allies will simply fall away. 

Although there are some who regard that prospect with equanimity there are many others who do not. As this is a legal and not a political blog, I will not enter the argument as to whether leaving the EU without a deal would be a good thing or a bad thing beyond observing that it would be expensive and inconvenient for many businesses and individuals which could have serious, adverse economic consequences for the whole country.

There are two ways of avoiding that eventuality.  One would be to enter the draft withdrawal agreement of 14 Nov 2018 that was approved by the governments of the remaining member states on 25 Nov 2018.  That is a "withdrawal agreement" within the meaning of art 50 (3) and it is probably as good an agreement as any British government could possibly get given the disparity in negotiating power between one member state and 27 others.  The other way would be to withdraw the notification which the Court of Justice of the European Union held to be possible in its judgment in Case C‑621/18, Wightman and others v Department for Exiting the European Union ECLI:EU:C:2018:999, EU:C:2018:999, [2018] 3 WLR 1965, [2018] WLR(D) 747, [2018] EUECJ C-621/18 which I discussed in my case note of 11 Dec 2018.

Both courses of action would require parliamentary approval.  The Prime Minister has already abandoned one attempt to secure such approval for the withdrawal agreement and has rescheduled another for this month.  As there is little evidence of a change of heart since her last attempt, it is possible that she may delay the attempt again in the hope that resistance to the draft withdrawal agreement will crumble the closer we come to the 29 March 2019.  The Prime Minister has already proved her skills as a tactician in the way that she routed her opponents in the parliamentary party by holding a confidence vote before they had time to organize. Whether delaying a vote on the withdrawal agreement until the last possible moment will work remains to be seen but, at present, it seems unlikely.

The revocation of the notification of 17 March 2017 is even less likely.   Ir would lead to howls of protest in sections of the press and Conservative Party.  Parliament would be accused of defying "the will of the people" though it has done precisely that in very similar circumstances as I explained in The Western Australian Secession Referendum - A Precedent for Dealing with Troublesome Referendums? 17 Dec 2018. As I added in Sometimes it is a Good Thing to ignore Referendums 19 Dec 2018, that decision turned out to be the right thing to do.  The Court of Justice made clear that any revocation of a notification under art 50 (2) would have to be in good faith.  The British government could not do it with the intention of issuing a new notification simply for internal political reasons.  It would also have to be prepared to hold elections for the European Parliament in May 2019.

The possibility of the UK's leaving without a withdrawal agreement is, to say the least, a strong possibility for which both the UK and the EU have been preparing.  I discussed those preparations in No Deal Preparations on Each Side of the Channel 20 Dec 2018.  In leaving the EU the UK will also leave the European Economic Area which will require a new relationship with the member states of the European Free Trade Association.  Agreements have been made with Iceland, Liechtenstein and Norway on a variety of issues and with Switzerland on expatriates' right which I covered in Future Relationship Agreements with the EFTA States 3 Jan 2019.  The agreement with Iceland, Liechtenstein and Norway contained provisions on geographical indications, database rights and exhaustion of rights  which I addressed in The IP Provisions of the Future Relationship Agreement with Iceland, Liechtenstein and Norway 4 Jan 2019,

Anyone wishing to discuss this article or the legal consequences of Brexit on their lives and businesses should call me on +44 (0)20 7404 5252 during office house or send me a message through my contact page,

Sometimes it is a Good Thing to ignore Referendums

Jane Lambert

The Prime Minister's response to growing calls in her party and the nation for a "Peoples' Vote" or second referendum is that it would somehow "break faith with the British people" (see Brexit: May to urge MPs not to 'break faith' by demanding people's vote 17 Dec 2018 The Guardian).  In my article The Western Australian Secession Referendum - A Precedent for Dealing with Troublesome Referendums? (17 Dec 2018 NIPC Brexit) I wrote that a select committee of 3 peers and 3 MPs recommended that Parliament should not even consider the result of a referendum in which almost all eligible voters had participated and where the majority was 66% as opposed to a rather paltry a 51.9% plurality.

The issue that was the subject of the referendum was whether the state of Western Australia (with a land area of just over 1 million square miles or just over a third of the territory of Australia) should secede from the federation and become a separate nation.  The reason why that question came before the British Parliament is that the Australian constitution was a British statute that made no provision for secession.  The only way that the result of the referendum could be implemented was by an Act of the United Kingdom Parliament.  Parliament set up the select committee to consider arguments from both the state and federal governments.  The history of those events is discussed by Mr Tom Musgrave of the University of Wollongong in an excellent article entitled The Western Australian  Secessionist Movement which was published at page 95 of the Macquarie Law Journal (2003) Vol 3. Copies of Mr Musgrave's article may be downloaded from the Macquarie Law Journal website.

The parallels between the Western Australian secession referendum and the UK's Brexit referendum are striking.  Identity and sovereignty were important issues in both referendums.  Western Australia had enjoyed considerable autonomy under the Colonial Laws Validity Act 1865  (c. 63 28_and_29_Vict) and many of its inhabitants were reluctant to give up that autonomy to join states many hundreds of miles to the east in a continent-wide federation. Similarly, a large section of the British public had always been opposed to an ever closer union.  For a while, participation in the Australian federation brought many economic benefits just as British membership of the European Union did in the United Kingdom.  Those benefits came to an end for many in Western Australia with the Great Depression just as they did for many in the UK with the 2008 recession. A single-issue political movement known as the Dominion League campaigned for a secession referendum just as UKIP did in the UK.  In Western Australia as in the UK, much of the press was vociferous in its support for those referendums and the outcomes of those who campaigned for them.

In my earlier article, I noted that the arguments for and against independence were almost exactly the same as in the Brexit debate.  Essentially whether the will of the overwhelming majority of the Western Australian electorate trumped parliamentary sovereignty as expounded by Burke and Dicey.  In 1935 the doctrines of Burke and Dicey won and it was probably just as well that they did because Austraila found itself at war with Japan in 1941.  Enemy forces bombarded Darwin in February 1942 and were on the point of launching an invasion.  Happily, Australian forces supported by their American and other allies gallantly resisted that challenge but that may not have happened had Australia fragmented into separate nations.  The population of Western Australia was under a million in the early 1940s. There might well have been antagonism between the successor states which would have obstructed a military alliance.  Had Australia or just Western Australia fallen to the enemy the course of the Second World War might have been very different.

Returning to the present, neither Mrs May nor anyone else has explained persuasively why Parliament should not exercise its independent judgment on whether Brexit is or is not a good thing rather than give effect to the will of a narrow plurality.  Losing faith in democracy is one argument and even civil disorder along the lines of the vestes jaunes protest in France has been forecast.  Exactly the same was said in 1935 but nothing like that happened in the end.  Economic conditions improved and calls for independence abated.

There is no reason to suppose the same would not happen if Parliament called a second referendum or simply repeated the European Referendum Act 2015.  As this is a legal blog and not a political one I do not argue that Parliament should do either of those things.  At the same time, nothing has happened since 1935 that leads me to doubt that, if Parliament wished to do so, it could.

Anyone wishing to discuss this or my previous article is welcome to call me on 020 7404 5252 or send me a message through my contact page.

The Western Australian Secession Referendum - A Precedent for Dealing with Troublesome Referendums?

A Crocodile in Lake Argyle, Western Australia

Author: Guyskillen
Licence: Creative Commons Attribution-Share Alike 4.0 International
Source: Wikipedia, Western Australia

Jane Lambert

On 30 Dec 1932 the Parliament of Western Australia passed the Secession Referendum Act 1932 (23 Geo V No XLVII).  S.5 (1) of the Act required the Governor of Western Australia to issue a writ for a vote by ballot on the following question:

"Are you in favour of the State of Western Australia withdrawing from the Federal Commonwealth established under the Commonwealth of Australia Constitution Act (Imperial)?"

The Governor carried out his duty and a referendum was held on 8 April 1933.

Voting in that referendum was compulsory.  S.5 (2) declared:

"It shall be the duty of every elector to record his vote at the taking of the said ballot."

Failure to do so was an offence under s.5 (3) and anybody convicted of such offence was liable to a £2 fine under s.5 (4).  Consequently, 91% of the electorate turned out to vote.  Of the 209,359 who voted, 138,653 favoured secession and 70,706 voted against.  Following this plebiscite, the state legislature passed The Secession Act 1934 (25 Geo V No 1) which appointed a delegation to present the case for secession to the United Kingdom Parliament.

The reason why the delegation needed to petition the British Parliament is that the Australian constitution was a British statue that provided for an indissoluble union of the Australian states.  The Parliament of the United Kingdom was the only legislature that could amend the Australian constitution and thus grant independence to a state that wished to secede from the Australian federation.

Upon receiving the petition, Parliament appointed a select committee to consider it.  The committee consisted of 3 peers (including Lord Wright the law lord) and 3 MPs.  They met on 27 March 1935 to hear argument from the state delegation and the Australian federal government.  The state relied on the overwhelming majority in favour of secession arguing that Parliament had a duty to accede to the voters' demand.  The federal government relied on s.4 of the Statute of Westminster 1931 which provided:

"No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof."

Both sides relied on the doctrine of Parliamentary sovereignty as expounded by Dicey whereby Parliament reserves "the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislature of Parliament."  The secessionists argued that it enabled Parliament to override the Statute of Westminister and the federalists that it transcended any mandate founded on the results of a plebiscite.

In a brief report, the select committee rejected the secessionist case.  It concluded that although Parliament retained the right in law to legislate on any matter in any part of the King's dominions it was bound by convention not to interfere in the affairs of a country that had achieved independence without the consent of the legislature of that country.  As the consent of the Australian federal legislature was not forthcoming, the United Kingdom Parliament could not give effect to the results of the plebiscite.

As might be expected, the decision of the select committee was met with great disappointment in Western Australia.   As in the debate over the desirability of a second referendum on Brexit, there were complaints of an affront to democracy and threats of civil unrest but nothing came of them.  The Labor Party that had campaigned against secession was returned to office. The social and economic conditions that had fuelled calls for recession improved.

In the debate over whether Parliament should respect the results of the 1933 referendum, exactly the same arguments were made then as are being made now.   The idea that Parliament somehow has a duty to effect the will of the people as expressed in a referendum was rejected in terms and rightly so,  A referendum is, after all, nothing more than a creature of statute.  As no parliament may bind its successor it should be possible for Parliament to repeal a statute that provides for a referendum as easily as it can repeal any other legislation.  I can think of nothing that has happened since 1935 to have ousted or limited the doctrine of parliamentary sovereignty.

Anyone wishing to discuss this article should call 020 7404 5252 during office hours or send me a message through my contact form.