1. I guess I'm going to have to explain how referendums work in this country and why they work like they do.
At the time of EEC entry, national referendums didn’t exist in our constitution, and there was no blueprint of how they should work.
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At the time of EEC entry, national referendums didn’t exist in our constitution, and there was no blueprint of how they should work.
(Thread)
2. When Dicey wrote ‘Introduction to the Study of the Law of the Constitution’, even the concept of referendums were new to the British public. He defined referendums explicitly as something we would consider as a post legislative referendum today. 
3. Referendums were employed in the British Empire. The Commonwealth of Australia Constitution Act 1900 was passed as a result of a second referendum. They were also proposed as a solution to deadlock in parliament in 1911.
4. The country had also held local referendums before, including one in Wales on Sunday drinking. It was the Welsh referendum that inspired the first suggestion for a similar referendum on Europe. This time a post legislative referendum that left the final decision to parliament.
5. Harold Macmillan was no fan of referendums, but then neither was Harold Wilson who also rejected suggestions of a referendum on the subject of entry into Europe.
6. An attempt was made to introduce a 10 minute rule bill for a referendum on EEC entry in 1969. It was rejected, and with the issue of the UK not having a written constitution, added to the fact Edward Heath was against referendums too, it seemed the argument was going nowhere.
7. But something happened in 1972 that advanced the argument. This exchange between Edward Heath and Harold Wilson questioning the binding of parliament was the 3rd time an ‘advisory referendum’ had ever been recorded in Hansard.
8. The event in question was the Norwegian referendum. Norway didn’t have a constitution, and while many of the other objections remained, this solution removed one, and gave the people pushing for a referendum a new avenue to explore.
9. An avenue that led to the first proposal for an advisory referendum. A simple opinion poll to be carried out before parliament made a final decision.
10. While that proposal failed, it led ultimately to the first manifesto commitment. The implementation of that commitment, when Labour came to power, was scrutinised by Winifred Ewing who asked: “Will it be window-dressing?”
11. And the problem being, if you aren’t binding parliament, how is the referendum not a ‘glorified opinion poll’?
The answer was that the government planned to bind itself.
The answer was that the government planned to bind itself.
12. Here is the government saying “We will see that the result is implemented”.
13. In parliament the distinction was clear: “The Government will be bound by its result, but Parliament, of course, cannot be bound by it.”
14. The MPs in parliament made a point of asserting this fact, before and after the referendum. “We will be free agents to decide no matter what the 81 percent. We shall take our own decision if we think that in the national interest.”
15. Some politicians even going as far as to suggest that a non-vote could be interpreted as a vote of confidence in their personal opinion.
16. The fact referendums maintain the sovereignty of parliament was also asserted in the Scottish Referendum, and the distinction between parliament and government binding can be found much later asserted by Lord Rees-Mogg: “It can only be advisory”.
17. Actually there is are work arounds and the government had the opportunity to try to implement those for the Referendum Act 2015, but they chose not to.
18. Instead, in the 2015 referendum, as per the 1975 referendum, parliament were told the referendum was advisory.
19. And, as per the 1975 referendum, the government announced they were bound. (The clues as to who the statement “The Government will implement what you decide” relates to are not unsubtle…)
It has absolutely no bearing on parliament.
It has absolutely no bearing on parliament.
20. To quote Peter Emery: “The powers of the House of Commons will indeed be undermined if we ever reach the stage when it is believed that Parliament can be bound by a statement by the Prime Minister which has no formal backing”.
21. Being bound, the government has not been ignoring the result. We’ve seen it fight to invoke Article 50 unilaterally, negotiated a deal, and had 3 meaningful votes. All at the cost of 2 Prime Ministers, record resignations, and a tonne of hard cash.
22. In terms of MPs, Enoch Powell certainly didn’t feel he was bound, neither did he feel that parliament were bound. Arguing the country could be out of the Common Market in a few years.
23. Suggesting, as the results came in, a parliamentary struggle to get Britain out.
24. Before arguing after the referendum that Westminster was the place for resistance, obstruction and agitation.
25. But it’s not that simple, because during the referendum debate of 1972, Enoch Powell alluded to the fact that if a government holds a referendum, the political weight will leave them unable to ignore the result.
They will effectively be bound.
They will effectively be bound.
26. And this is where political binding comes in. Enoch Powell was right, only it doesn’t just affect government as he suggested, it also applies to parliament.
27. Parliament is exposed to a formal opinion poll on a specific issue, and usually from a bill that they themselves have passed. This is no small deal, and consequently they do not pass these bills unconditionally, or without caveat.
28. However, on the basis that the government that has brought the referendum bill usually has a majority, the party system, a bound government, and a politically bound parliament should guarantee a referendum is implemented.
29. Conversely, if a government doesn’t have a healthy majority, the government may struggles to get the result through parliament, and this will make them feel intense political pressure.
30. Regardless of the pressure the government is under, it remains the job of parliament to act as the guardians of the people’s decision and they should also ensure the government’s proposal matches the debate as closely as possible.
31. Trying to interpret a dishonest, confused, ill-informed, or inaccurate debate is likely to lead to stasis, or outright stalemate.
(Similar to the stalemate problem of 1911 for which referendums were proposed as a solution...)
(Similar to the stalemate problem of 1911 for which referendums were proposed as a solution...)
32. And political binding does not last forever. Non-elected parties will not feel the same pressure. For example, the National Front were offering to leave the EEC within 3 years of the 1975 referendum, and it was in their manifesto by the time of the 1979 election.
33. It was just 5 years after that same referendum that the Labour party made leaving the EEC their policy, and parliament saw its first private member’s bill introduced.
34. Most importantly, it is not democracy, or our constitution, that binds parliament. It is pure politics. The idea that those that fail to subscribe to the result of a referendum do so in the knowledge of how they will be judged in later elections.
35. If we discard the politics, and focus just on the democracy, the first thing we discover is that…even after a referendum… we remain a democracy and one of the essential components of a healthy democratic country is that it is a free country.
36. Being a free country means that politicians are free to campaign for what they want, and the electorate are free to express their opinion in the ballot box. This empowers ‘Suffrage’, another vital component of democracy.
37. The word 'democracy' itself means literally ‘rule by the people’, and so the political class would be well advised not to tell the people what they can have, and when they can have it.
The people do not just speak when they are spoken to.
The people do not just speak when they are spoken to.
38. Politicians are welcome to make, and keep, their personal commitments, but if these are not consistent with the desires of the electorate, then it’s also worth reminding them that in a democracy they work for us, and there are a lot more applicants than jobs.
39. And when a party sets policy by taking the lead from another exercise in democracy, say…a very popular petition, then the merits of it will be decided democratically in an election of the people.
40. If people believe in democracy, nobody has to threaten somebody’s child because their party supports a policy which is already going to be offered up on the altar of democratic opinion.
41. But when it does happen we should look to those who are turning a democratic exercise once referred to as “If that’s not democracy I don’t know what is” into: “You just want to overturn democracy”.
42. I don’t think it’s a great idea to have manifesto items on such large matters, and there are more consistent Remainer arguments against it from when we saw manifesto pledges to leave the EEC in 1979, 1983, and 1987.
43. And in this climate, if people are going to make political arguments, then they should steer clear of ones that run roughshod over our law, our political precedent, our separation of powers, and democracy itself.
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