Friday, 28 October 2016

Referendums and Representative Democracy


In March 2010, the House of Lords Constitution Committee published a report on Referendums in the UK.  The government response to the report was issued in October 2010.

As noted in the report, the impact of holding referendums could be either to complement the British system of representative democracy or to undermine it.  The report noted significant drawbacks to the use of referendums but acknowledged arguments that, if referendums are to be used, they are most appropriately used in relation to fundamental constitutional issues.  The committee said: "We do not believe that it is possible to provide a precise definition of what constitutes a "fundamental constitutional issue". Nonetheless, we would consider to fall within this definition any proposals:

·  To abolish the Monarchy;
·  To leave the European Union;
·  For any of the nations of the UK to secede from the Union;
·  To abolish either House of Parliament;
·  To change the electoral system for the House of Commons;
·  To adopt a written constitution; and
·  To change the UK's system of currency.

This is not a definitive list of fundamental constitutional issues, nor is it intended to be."

The following sections of the report are of particular interest with regard to the impact of referendums on representative democracy:






The section on whether referendums undermine representative democracy notes a view that the sovereignty of  Parliament "is certainly threatened by the use of referendums. Referendums put the people before parliament. The sovereignty of parliament becomes the sovereignty of the people ... Introducing direct democracy into the political system ... challenges the indirect, representative democracy that has been the essence of UK democracy. If the people vote one way, their representatives another, who should prevail, who is sovereign?"

One of the recommendations in the report stated:  "We recognise that because of the sovereignty of Parliament, referendums cannot be legally binding in the UK, and are therefore advisory. However, it would be difficult for Parliament to ignore a decisive expression of public opinion." 

The government response to that was: "The Government agrees with this recommendation. Under the UK's constitutional arrangements Parliament must be responsible for deciding whether or not to take action in response to a referendum result."

Brief case study - The European Union Referendum:

Legal background:

The UK-wide referendum on European Union membership was held on 23rd June 2016. The legal basis for the referendum was the European Union Referendum Act 2015 (the 2015 Act).

The 2015 Act contained nothing to place a legal duty on any body or individual to take action on the result which, in the event, was a vote to leave. The 2015 Act may therefore be contrasted with the Parliamentary Voting System and Constituencies Act 2011 (the 2011 Act), section 8 of which placed a legal duty on the Secretary of State to bring forward legislation to implement the "Alternative Vote" for Parliamentary elections if the referendum opted for that system.  In the event, it did not.

Government stance after the referendum:

Following the 23rd June referendum it became plain that the government did not wish there to be either a formal vote in Parliament to accept the referendum result or a legislative Bill brought forward to achieve the same end.  The reasons for this must have been entirely political and based on government concern that Parliament might reverse the decision of the referendum.  Nevertheless, Parliament would necessarily have its say after the completion of the negotiations for leaving because, at that time, legislation would be required to repeal the European Communities Act 1972 - see Great Repeal Bill.

The government asserted that "Royal Prerogative" powers in relation to Treaties were sufficient to give the required notice to the EU that the UK had decided to leave.  The prerogative certainly permits Ministers to negotiate and to make and unmake treaties with other States and International bodies such as the EU.  All of that is action on the international plane but it is well established law that this prerogative power may not be used to create, remove or alter rights in domestic law without Parliament enacting enabling legislation.

Article 50:

Article 50 of the Treaty on European Union (TEU) provides the mechanism by which a member state may withdraw.  The article requires the member state to make a decision to leave in accordance with the constitutional requirements of that State.  Once there is a decision, it has to be notified to the EU and this commences what is basically a 2 year negotiating period in which to negotiate the arrangements for withdrawal of the State, taking into account the framework for the State's future relationship with the EU. (The Article provides for extension of the 2 year period but only by unanimous agreement of the European Council).

An important question is whether a notice to leave under article 50 may be withdrawn unilaterally by the member state.  If the notice cannot be withdrawn then it is inevitable that the State's EU membership will end and, at that point, EU law (including rights in EU law) would no longer apply to that State.

European Communities Act 1972:

The European Communities Act 1972 was the means by which Parliament enabled EU law to have effect in the UK.  The Act undoubtedly ensured that EU rights - as they stand from "time to time" - could be enjoyed by British citizens.  Over the years of membership, those rights have indeed been absorbed by the UK.  To adapt a colourful phrase of Lord Denning, they have flowed "into the estuaries and up the rivers" - Bulmer v Bollinger [1974] Ch 401.

Litigation:

Litigation came before the High Court to challenge the intended lack of Parliamentary involvement in the giving of the Article 50 notice to the EU.  Interestingly, the litigation proceeded on an agreed basis that notice under Article 50 could not be withdrawn by the UK.  It was argued that the giving of notice would therefore inevitably lead to loss of EU rights which are enjoyed in the UK because of the European Communities Act 1972.  Consequently, it was necessary, in law, for Parliament to authorise the giving of notice under Article 50 since the Referendum outcome was not legally binding.  Parliament could have made it legally binding but had not done so.  The court concluded that the Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union - Judgment.  Prerogative power could not be used to remove rights which Parliament had provided for.

An appeal to the Supreme Court of the UK will be heard in early December.  The agreed basis in the High Court that notice cannot be unilaterally withdrawn strengthened the case of the claimants.  Whether a notice may be withdrawn is ultimately a question for EU law and it may be that the Supreme Court will consider it necessary to refer that question to the Court of Justice of the EU. Legal opinion is divided on the point. The requirement in Article 50 that the 2 year period may only be extended by unanimity appears to lend weight to the view that Article 50 may not be revoked unilaterally.


Overview:

Given the absence of any legal duty to implement the EU referendum, the 'no need for Parliamentary involvement' stance of the government may be contrasted with governmental acceptance of the constitution committee recommendation that a referendum result is advisory and that Parliament must be responsible for deciding whether or not to take action in response to the result.

The referendum outcome will have massive repercussions given that "Brexit" was not the choice of voters in either Scotland or Northern Ireland.  The potential for break up of the United Kingdom is clear for all to see.*  This will be a matter for serious consideration by Parliament if the outcome of the court action is that Parliament gets a say on the triggering of Article 50.

* See article by Jo Murkens - UK Constitutional Law Association - Brexit: the devolution dimension and Norton Fulbright - Brexit: the devolution of question



 


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