EU referendum was ‘advisory’

British referendums are ‘advisory’ or ‘consultative’, with no legal force

Following the High Court Brexit judgment several readers asked why MPs should have a say since the people have voted – the answer is that British referendums are ‘advisory’ or ‘consultative’, with no legal force.

Because this is so, the question then remains as to whether the Prime Minister and cabinet can take a decision based on them alone – called using the ‘royal prerogative’ (autocratic powers left over from the days of absolute monarchy), or whether the decision should be parliament’s.

Today the High Court said the law is clear that it is for MPs to take the UK out of the EU – or not – because MPs took the UK in.

The non-binding nature of the referendum was referred to by researchers at the House of Commons library in a briefing paper prepared last year as a guide to MPs in advance of debate on the referendum act, which called it “a type of referendum known as pre-legislative or consultative”.

They said: “This Bill… does not contain any requirement for 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 [the referendum] enables the electorate to voice an opinion which then influences the government in its policy decisions… The UK does not have constitutional provisions which would require the results of a referendum to be implemented”.

This paper was referred to in the court's judgment, which said: "A referendum on any topic can only be advisory for the lawmakers in parliament unless very clear language to the contrary is used in the referendum legislation" and "no such language was used in the 2015 Referendum Act"; furthermore "the act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only".

However it is a fundamental part of the British constitution, known as the separation of powers, that government (‘the executive’), representing the power of the Crown, is not all-powerful but is subject to checks and balances, from parliament, and from judges who are appointed to apply the law impartially.

In September by the House of Lords’ Constitution Committee said in a report: “It would be constitutionally inappropriate, not to mention setting a disturbing precedent, for the executive to act on an advisory referendum without explicit parliamentary approval – particularly one with such significant long-term consequences. The government should not trigger article 50 without consulting parliament.”

It also emerged last month that the David Cameron government had agreed that referendums had no force without a parliamentary vote.

In June leading constitutional lawyer Geoffrey Robertson QC told The Independent: “MPs are entitled to vote against [Brexit] and are bound to vote against it, if they think it's in Britain's best interest. It's not over yet.

"MPs will have to do their duty to vote according to conscience and vote for what's best for Britain. It's a matter for their consciences. They have got to behave courageously and conscientiously.”