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Dr Robert C Palmer @RobertCPalmer13
, 12 tweets, 5 min read Read on Twitter
1.#A50Challenge disputes the govt's claims that a 'decision' to leave the EU has been made 'in accordance with [our] constitutional requirements'. The underlying assumptions of that decision haven't been tested in court. THREAD explaining why the ref result isn't a decision #FBPE
2. In 2011 the Parliamentary Voting System and Constituencies Act was legislated during the 1st Cameroon govt. It was unique as it was a 'madatory' referendum. The same administration legislated for the Referendum Act 2015 as an 'advisory' ref; 2011 bound parliament 2015 didn't.
3. The 1975 ref process was different. It was, what's termed as, a post-legislative ref. In other words, Parliament voted for EC membership, then legislated for the Referendum Act 1975. The assent of the people (67% to 33%) then made that result binding; theoretically.
4. In 2009 the HoLs Select Comm on the Constitution undertook an inquiry on Referenda in the UK. The oral/written evidence concluded that pre-legislative refs can't be binding. This report was used to legislate for both the 2011/15 Acts; the govt knew the 2016 ref wasn't binding.
5. Pre-legislative referenda are exploratory in nature, in that they're only indicative of public opinion. Even the 1975 ref didn't bind parliament - parliament is supreme and any Act can be repealed. However, Constitutional Acts can only be expressly repealed by an Act of Parl.
6. Constitutionally, a pre-legislative, advisory referendum is not only incapable of binding Parliament it cannot expressly repeal a Constitutional Act (eg ECA 1972). Only the process of Royal Assent can do that. For that to happen Parliament have to vote on the matter first.
7. Referenda can be part of the constitutional process to repeal a Constitutional Statute. But that process starts with a Bill getting approval in the HoC and HoL (Royal Assent) to become an Act and then followed by the referendum (as was the case between 1970-75).
8. As the UK doesn't have a codified constitution, it may be impossible to treat a referendum as being legally/constitutionally binding (certainly if pre-legislative) & advisory refs are congruent with the idea of parliamentary sovereignty; but it could be politically binding.
9. There are arguments that refs are politically binding as it is difficult for parliamentarians to vote against the result of an advisory ref. But without a clear majority and with the option for a mandatory ref (2011) it's doubtful the govt can square that circle.
10. The inquiry concluded that owing to the sovereignty of Parliament, refs cannot be legally binding in the UK, and are therefore advisory. While it's difficult for Parliament to ignore a decisive expression of public opinion, 3.8% can't be seen as such.
11. At present we are stuck in a situation where the govt is misleading the country about the ref being a 'decision' because they are in the difficult position of misframing its status in the first place. Now, political pressure is usurping the rule of law. A decision? No.
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