The last referendum on Britain’s membership of the European Union was forty years ago, neither within the memory nor the lifetime of a significant number of those eligible to vote this time around – which notably will not include the youngest, 16 and 17 year olds. Since then, dissatisfaction with the European Union has been evident amongst its citizens. The Economist recently dated this attitudinal change back to at least 1992, when the French narrowly approved the Treaty of Maastricht in a referendum. One of the many explanations proffered for this change is the impact of political populists, such as UKIP, in influencing voters. In the same article in The Economist Catherine Fieschi, Director of Counterpoint, is identified as suggesting that a consequence of the rise of populists is the increase in “Coliseum Politics” such as the grand gesture referendum. Although UKIP has not achieved any great success in Parliamentary elections, it appears to have achieved the credit (or blame depending on your point of view) for causing concern amongst the Conservative Party of possible inroads into Tory constituencies and for making the question of Europe loom large, again, in the Conservative Party itself. Hence David Cameron’s Bloomberg speech and subsequent election manifesto promises of a referendum and legislation to guarantee it is conducted.
The populist party or Eurosceptic argument, which is now well versed, centres around a dislike – so it would say – of being dictated to by Brussels and paying a hefty budget contribution which the British taxpayer can ill afford, only to be subject to European laws it does not want. Despite the reticent tone of history, for example from Professor John Mackitosh MP who appeared in the BBC’s referendum results coverage in 1975, to opine that referenda are contrary to the parliamentary system and are therefore unfortunate. Even in the recent House of Commons debates on 7 September 2015 on the European Union Referendum Bill itself, a well known constitutional law historian and academic was quoted as saying that referendums are used where it is thought that the Parliamentary system cannot provide the required level of legitimacy. Paradoxically, both politicians and lawyers alike are citing the preservation of Parliamentary sovereignty as the reason for supporting Brexit whilst at the same time backing the use of a referendum because of a lack of legitimacy in the parliamentary system.
Whatever the political motivation, the election of a majority Conservative government has precipitated developments in the legal situation. The European Union Referendum Bill was swiftly published following the Queen’s Speech. It initially worded the question as Should the United Kingdom remain a member of the European Union? This was considered to be too one sided for the Electoral Commission, which has proposed that the question be changed toShould the United Kingdom remain a member of the European Union or leave the European Union? to which its suggested options for responses are “Remain a member of the European Union” or “Leave the European Union”listed in that order. This wording was subsequently accepted by the Prime Minister. The ‘yes’ and ‘no’ camps have become the ‘remain’ and ‘leave’ camps.
In addition to the focus on the wording and layout of the referendum question some of the legal technicalities of the provisions of the European Union Referendum Bill have developed a particular significance of their own. It is not difficult to see why. In 1975 the referendum result was an overwhelming ‘Yes’ to the union, with a majority vote of 70% in favour of continued membership being returned in most regions throughout the UK. The ‘leave’ camp appear convinced that this was due to the large disparity in the capabilities,- or rather, resources – between themselves and the opposing campaign. Both the establishment and big business, which then acted in cohort in support of Britain’s membership, are reported to have outspent the ‘no’ campaign by twelve to one. A concern to avoid history repeating itself has prompted the fervour of debate on purdah, which has been seen recently in the House of Commons. The ‘leave’ camp expressed concern that if the legislation allowed them to be outspent again, they would surely lose and this would undermine the public’s faith in the outcome. The role of BBC journalists in asking businessmen and women questions (even if inadvertently) in interviews on subjects unrelated to Europe as to the future of their business should there be a vote to leave the EU was discussed by John Redwood in an impassioned speech. Essentially, any possibility of an implied use of government resources in the purdah period (up to 28 days before polling day), however tenuous, has been criticised for compromising the legitimacy of the result. Those in the ‘leave’ camp – comprising MPs from all political parties – were keen, if not to have the law drafted in their favour, to avoid having it drafted in their disfavour – all in the name of democracy of course. When it came to it, the government was significantly outvoted on this issue. Continue reading