The Referendum was not legally binding and was purely advisory. MPs knew or should have known this, and chose for it to be advisory. If the UK leaves the EU, it will because MPs have decided that it should, not because the referendum result compels the UK to do so.
Very surprisingly, there have been some recent questions on Facebook, Twitter and elsewhere as to whether the UK’s referendum on the EU was legally advisory or legally binding. According to FullFact.org, those who have claimed it was binding include John Redwood MP.
This is however not true, as even Nigel Farage has admitted. You can see this at 2:17 in the video below:
It is not therefore widely disputed that the referendum was advisory, but I nonetheless thought it would be useful therefore to put all the evidence in one place for reference.
1. The Referendum Act.
The text of the Act is available here.
The act itself makes no reference whatsoever to the result being binding. In fact, the only reference to the result itself is in Schedule 3, Paragraph 19 (p.63) and concerns solely restrictions on when and how any legal challenges questioning the number of ballot papers counted or votes cast can be made. As such, there is therefore no legal definition of what a Remain or Leave result would be at all. There were only political pronouncements that 50% would be the margin for either to win.
For the act to be legally binding, the act would have had to have stated this specifically, made a specific reference to the changes to laws that would result from it, or actions, such as notification to the Council of the European Union that the UK was invoking article 50 of the TEU, that would be legally required of ministers or the Prime Minister as a result.
This would have been possible had Parliament decide to do it. The 2011 Act on the Alternative Vote Referendum did this, and has a sections (8) on the “Result of the Referendum” and (9) on the amendments to existing acts that would come into force as a result of a Yes vote.
The EU Referendum Act does not do this. The result of it was not therefore legally binding.
2. Were MPs aware of this?
MPs should certainly be aware of this for two reasons.
a. The Briefing Paper
Firstly, the House of Commons Library prepared a briefing paper which made this very clear to them.
It is worth reproducing the section on the advisory nature of the referendum in full:
5. Types of referendum
This Bill requires a referendum to be held on the question of the UK’s continued membership of the European Union (EU) before the end of 2017. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution.
b. The Minister for Europe
The second way in which MPs would, or should, have known that the referendum was advisory is because the then Minister for Europe, David Liddington, told them it would be on 16th June 2015. This is in Hansard, 16 Jun 2015, Column 231., and available here:
Mr Liddington said:
Amendment 16 does not make sense in the context of the Bill. The legislation is about holding a vote; it makes no provision for what follows. The referendum is advisory, as was the case for both the 1975 referendum on Europe and the Scottish independence vote last year. In neither of those cases was there a threshold for the interpretation of the result. The Government take the view that, in respect of EU membership, we are one United Kingdom. The referendum will be on the subject of the United Kingdom’s membership of the European Union and it is therefore right that there should be one referendum and one result. I hope that the right hon. Gentleman will choose not to press his amendment.
The amendment that he was talking about had been tabled by Alex Salmond and other SNP MPs, and would have required that the result could only be considered to be that the UK should leave the EU if 50% of the votes cast were for Leave in each of the 4 countries of the UK.
The amendment is reproduced below:
Parliament rejected this amendment. In fact, had parliament accepted this amendment would probably have meant that the UK was not now planning to leave the EU, and that Scotland was not (probably) now planning on leaving the UK.
So, the Referendum was not legally binding and was purely advisory. MPs knew or should have known this, and Parliament chose for it to be advisory. If the UK leaves the EU, it will because MPs have decided that it should, not because the referendum result compels the UK to do so.