The culture secretary, Karen Bradley, was doing the rounds of breakfast television this morning. She spoke to BBC Breakfast and ITV’s Good Morning Britain about her new plans for online safety.
But the discussion inevitably veered towards Brexit, after Theresa May’s interview yesterday in which she apparently refused to say if she’d vote to leave the EU in the event of a new referendum.
Ms Bradley told BBC Breakfast:
“We are delivering on the will of the British people from the binding referendum we had in June 2016 and we are leaving the European Union.”
Later, she used similar language on Good Morning Britain: “What I’m saying is that the British people in a binding referendum last year voted to leave the European Union”.
She’s right that more votes were cast in favour of leaving than in favour of remain last June (17.4 million for leave versus 16.1 million for remain).
But as some commentators have pointed out, it’s not strictly correct to say that the referendum result was binding – at least not in a legal sense.
There was nothing in the EU Referendum Act that made the result legally binding
The European Union Referendum Act 2015 – the law that allowed the referendum to take place – didn’t specify what would happen in the event of a vote to leave.
We know that because it didn’t contain any explicit statement to make clear that the result would be legally binding.
The House of Lords Constitution Committee explained in a 2010 report why that’s the case. It said “because of the sovereignty of Parliament, referendums cannot be legally binding in the UK, and are therefore advisory”.
In other words, unless Parliament actively agrees to bind itself to the result of a future referendum, it is not legally obliged to enact the outcome.
In fact, the government recognised the need to make these things explicit in 2011, when Parliament passed the legislation to allow for a referendum on electoral reform. Section 8 of the Parliamentary Voting System and Constituencies Act 2011 makes very clear that the government would have to enact a new voting system in the event of a “yes” vote.
There was no such provision in the EU Referendum Act, which in legal terms means that the result was not binding.
Indeed, this was the basis of the supreme court ruling in January 2017, which clarified that an act of Parliament was required before the government could trigger Article 50.
Not legally binding, but politically inevitable?
But of course, the political reality is very different. In the same House of Lords report that said referenda were not legally binding, the committee concluded that “it would be difficult for Parliament to ignore a decisive expression of public opinion”.
Polling from earlier this year suggests around 70 per cent of the public believe Brexit should go ahead – including some “Re-leavers”, who voted to remain last year, but who now accept that the UK should withdraw.
Against that backdrop, it is hardly surprising that Ms Bradley would consider enacting the referendum result to be a political inevitability.