The UK’s membership of the EU has divided the Conservative party since towards the end of Margaret Thatcher’s premiership. Much more so than the divisions within other parties. This came to a head in late 2012, leading to David Cameron’s speech at Bloomberg on 23 January 2013.
I have to confess that when I heard what David Cameron had said, I thought it was a good idea. At last there was a chance to lance the boil!
While there was no risk of the Liberal Democrats agreeing to hold an EU referendum under the coalition, the Conservative Party unexpectedly won an absolute majority in the 2015 general election. Having promised a referendum in the manifesto, Cameron had no alternative but to legislate for one.
It is obvious from some of the details in the European Union Referendum Act 2015 (such as not giving votes to 16 and 17-year-olds and no threshold requirements) that David Cameron never contemplated the possibility of losing the referendum. However, on 23 June 2016, 52% of those voting cast their ballots for the “Leave the European Union” option.
The legal position after the referendum result
In a complicated world, the only thing which is clear beyond any doubt is that the referendum result has no legal force. The EU Referendum Act 2015 did not provide for anything to happen as a result of the referendum, regardless of which way voters chose. It is legally equivalent to conducting a 100% opinion poll of the electorate.
Anyone in doubt should read the Supreme Court judgement in the Article 50 case, and in particular paragraph 119 on page 39. The question is simply not open for debate.
The political position after the referendum result
Legally, on the morning of Friday 24 June, David Cameron could have thanked the British people for voting in the referendum while announcing that he was ignoring the result. Politically, using the language of Sir Humphrey Appleby, this would have been an act of “bravery” off the scale!
Quite apart from the divisions within the Conservative Party, there would have been a genuine risk of peasants marching on the streets of London carrying pitchforks. Readers can offer their own selection for the politician to cast in the role of Wat Tyler.
In my view, having called the referendum, with over £40 million having been spent (adding together the Leave and Remain camps plus government expenditure) and the time of millions of people, the Government now has no practical political alternative to starting negotiations with the rest of the EU regarding the terms for the UK’s withdrawal.
Protecting the national interest
Our Government should, quite obviously, always act in the national interest. What constitutes the national interest has to be decided by two of the three arms of our governmental system, namely the executive and the legislature. (The judiciary’s sole role is to decide upon matters of law.) What is in the national interest is not decided by opinion poll.
As mentioned above, given the referendum result there is a clear political necessity to negotiate withdrawal terms. However, having negotiated those terms, the Government then needs to decide the following question. “Is withdrawal from the EU on these specific terms in the national interest compared with remaining in the EU?”
In my opinion, for the Government in the form of the executive and the legislature to refuse to answer that question and act upon their answer would be a dereliction of duty. However, if the Government is unwilling to decide the question, then it should put the matter back to the people in the form of a referendum where the question would be “Leave on these specific terms or remain?”
The next step
Unfortunately, life is made more difficult by the fact that the other 27 countries of the EU have made it clear that they will not negotiate the terms for a possible UK withdrawal without the UK first serving a notice to leave under article 50 of the EU Treaty.
That then gives rise to a critical legal question. Once an Article 50 notice is given, can the member state giving the notice withdraw it within the 24 months before the notice takes effect?
The language of Article 50 and of the rest of the EU Treaty contains no provisions for revocation. I have seen opinions by eminent legal experts suggesting that a notice can be revoked, (see here, here and here) but such opinions cannot provide certainty.
For such a critical issue, the Government has a clear duty to obtain legal certainty. This would require the UK to apply to the European Court of Justice for a ruling on whether article 50 notices are revocable or not. Obtaining such legal certainty is a far greater priority than serving an Article 50 notice by any particular self-imposed deadline.
For the UK to serve an Article 50 notice without knowing whether it is revocable would be to put domestic politics before the national interest because it creates the risk of the UK leaving the EU 24 months later under either a terrible negotiated deal, or with no deal at all, and with no opportunity to decide whether the departure terms (or non-terms) were better or worse than remaining in the EU.
If the ECJ decided that an Article 50 notice is not revocable, the government would at least know where it stood. It then would have the responsibility to assess the national interest before deciding whether or not to serve the notice.
One factor in that assessment of the national interest would be the domestic implications of choosing to ignore the EU Referendum result. It is perfectly possible that the government may conclude that departure on any terms (or non-terms) is preferable to the domestic implications of ignoring the referendum result; the responsibility for deciding that question rests with the Government.