My Lords, in the time available I will comment on the referendum campaign, on the use of referendums, and on whether legislation is required to trigger an Article 50 notification.
I agree strongly with my noble friend Lord Dobbs and others who have argued that the referendum campaign was an exercise in how not to campaign. Each side played to its core audience and there was little debate. Rather, we had claims met by dismissals based on the past predictive record or the perceived bias of the source. We appeared at times to be mired in slogans rather than sustained arguments. In terms of our politics, the most corrosive element of the campaign was the extent to which the two sides engaged in inflated claims. We saw Anthony Downs’ thesis in An Economic Theory of Democracy apply in a binary contest, each side encouraging voters to be irrational by making its platform vague and ambitious.
The result was that expectations were raised that were not going to be met whichever side won, with the consequence that not only were those on the losing side going to be disappointed—so, too, were many on the winning side. This creates a problem of trust in our political system, and indeed in our institutions. The Government have responsibility for negotiating withdrawal, but Parliament has a crucial role of scrutiny and of linkage between government and people. We have to inform, but it is a two-way process. We have to try to ensure that the gap between expectations and what can be delivered is narrowed.
Some who have spoken in this debate have reminded us that the referendum was “advisory” and that Parliament is not bound to accept it. The terminology is misleading. The outcome is not legally binding, but it has a political weight that is greater than is acknowledged in referring to it as “advisory”. It is important to remind ourselves that Dicey distinguished between parliamentary sovereignty—that is, the outputs of Parliament, enforceable at law—and political sovereignty, which is the wishes of the people, not enforceable by the courts. Dicey said:
“The plain truth is that as a matter of law Parliament is the sovereign power in the state ... It is however equally true that in a political sense the electors are the most important part of, we may even say are actually, the sovereign power, since their will is under the present constitution sure to obtain ultimate obedience”.
He went on to say:
“Parliament can hardly in the long run differ from the wishes of the English people, or at any rate the electors; that which the majority of the House of Commons command the majority of the English people usually desire”.
To ignore the outcome, or put it to a second referendum, is legally possible but politically toxic. People may have voted in a way that they now regret; they may have voted on the basis of partial or misleading information; but they have voted, and there is nothing to say they would not vote on partial or misleading information the second time around. We cannot hold a second referendum on the basis of the retrospective application of rules. If we wanted a threshold or super-majority to apply, we needed to stipulate that at the time. I raised the issue of a threshold during the Second Reading of the EU Referendum Bill, but no one appeared keen to pursue the proposal. We were therefore in a position where a simple majority determined the outcome.
We need to take action, not to trigger another referendum but to address what rules should apply on future occasions, not only in terms of when to hold a referendum but in terms of the means by which information is provided to electors. As to Article 50 notification, I agree with Professor Mark Elliott and others, who argue that primary legislation is not required to trigger it. For reasons of time, I will not develop the arguments advanced by Professor Elliott on his blog, “Public Law for Everyone”, but rather follow the outstanding speech of the noble Lord, Lord Lisvane, and remind the House of the status of the 1972 European Communities Act.
After the introduction of the European Communities Bill, there was a ruling by the Chairman of Ways and Means, on
“It is not a Bill to approve the Treaty of Accession nor any of the other treaties which are basic to membership of the Communities”.—[Official Report, Commons, 29/2/1972; col. 269.]
That ruling was challenged, but it was upheld the following day by a vote of the House of Commons.
As the noble and learned Lord, Lord Millett, pointed out in a letter to the Times on Monday, the exercise of our treaty rights under Article 50 will have no effect in itself on domestic law. That exercise is a matter for the prerogative, since it affects our position in international law and not in domestic law. We will need later to undo the legal nuts and bolts, but that is not required for an Article 50 notification. We will need later legislation, and possibly even a referendum under the terms of the European Union Act 2011, but that is consequent to and not prior to any negotiation. As the noble Lord, Lord Lisvane, argued, there is a case for seeking parliamentary support for an Article 50 notification, but that would be analogous to the October 1971 vote on principle.
The role of this House, in my view, is not to refight battles but to draw on the experience and expertise of Members in assisting in the negotiations that lie ahead and in informing people about what is happening and what it is realistic to expect. We should be looking to where we want the United Kingdom to be in five or 10 years and think through how we get from here to there. The contribution we can make to the nation is to be forward looking. Let us play to our strengths.