The old chestnut keeps coming up about the referendum and whether or not it represents the actual, final, legal and constitutional "decision" to leave the EU - or was it just advisory? This is important and is about to be tested again (in June) in the courts. Michael Howard was on The Daily Politics recently claiming the government "delegated" the referendum decision to the people. Richard Tice (HERE), the co-chair of Leave means Leave, says they "outsourced" the decision to the people. Neither are correct and it's surprising that they don't know the position.
The then Attorney General told the High Court in R v Miller in November 2016 (HERE Day 2 page 71 line 23 and with my emphases):
"...the government's case is not that the 2015 Act [The act providing for the referendum] provides the source of power for the government to give an Article 50 notification".
In other words the government have never even claimed that the 2015 Referendum Act gave them the power to notify the EU we were leaving. The Attorney General claimed the government had always had the power to do so (both the High and Supreme Courts rejected this idea) and the 2015 Act was only advisory.
More than that the High Court, in their judgement (paragraph 106 HERE) "That Act [The 2015 Referendum Act] falls to be interpreted in light of the basic constitutional principles of Parliamentary Sovereignty and representative parliamentary democracy which apply in the United Kingdom, which lead to the conclusion that 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 in question. No such language is used in the 2015 Referendum Act."
So, the 2015 Act didn't absolve parliament of making the decision and the government have never claimed that it did. But if we need further proof, the Supreme Court in it's later findings of 24th January 2017 (HERE) in paragraph 120 said:
"It was suggested on behalf of the Secretary of State that, having referred the question whether to leave or remain to the electorate, Parliament cannot have intended that, upon the electorate voting to leave, the same question would be referred straight back to it. There are two problems with this argument. The first is that it assumes what it seeks to prove, namely that the referendum was intended by Parliament to have a legal effect as well as a political effect. The second problem is that the notion that Parliament would not envisage both a referendum and legislation being required to approve the same step is falsified by sections 2, 3 and 6 of the 2011 Act, which, as the Explanatory Notes (quoted in para 111 above) acknowledge, required just that - albeit in the more elegant way of stipulating for legislation whose effectiveness was conditional upon a concurring vote in a referendum".
The Supreme Court referred to the 2011 European Union Act (HERE) sections 2, 3 and 6. Section 2 says this:
(1) A treaty which amends or replaces TEU or TFEU is not to be ratified unless—
(a) a statement relating to the treaty was laid before Parliament in accordance with section 5,
(b) the treaty is approved by Act of Parliament, and
(c) the referendum condition or the exemption condition is met.
(2) The referendum condition is that—
(a) the Act providing for the approval of the treaty provides that the provision approving the treaty is not to come into force until a referendum about whether the treaty should be ratified has been held throughout the United Kingdom or, where the treaty also affects Gibraltar, throughout the United Kingdom and Gibraltar,
(b) the referendum has been held, and
(c) the majority of those voting in the referendum are in favour of the ratification of the treaty.
In other words the 2011 European Act, which Brexiteers forced Cameron to put on the statute book, says quite explicitly that no treaty with the EU can be ratified without both a referendum and and Act of parliament. So, the 2016 referendum was advisory only, regardless of what Michael Howard, Richard Tice or anyone else says.
So, we know the people did NOT make the decision in the referendum - this is well beyond doubt - although government have notified the EU of the "decision". But through the lawyer David Wolchover, they have admitted they cannot show where the actual legal and constitutional decision was made and by whom. The Supreme court will soon decide if this was lawful or not. If not, the cat will truly be amongst the pigeons. Who would be a Supreme Court judge?
