The Will of the people?

The most common argument used in support of Brexit is that the 2016 referendum result embodied the “will of the people”. Opposing it is therefore denounced as “undemocratic”. MPs who do not support their position are attacked as “elitist”, and the House of Lords is routinely dismissed as “unelected”.

Leave aside, for a moment, the argument that the simple “out “vote left unanswered the question of what should happen afterwards. We need to emphasise two key points.

First, the UK is a parliamentary democracy – to paraphrase Edmund Burke, MPs are representatives, not delegates, required to exercise their judgement on behalf of their constituents. This is particularly important when the country is almost equally divided on an issue.

Secondly, it follows that, as the High Court has pointed out, “a referendum on any topic can only be advisory for the lawmakers in Parliament”. This was made absolutely clear during the passage of the 2015 Referendum Act, when the constitutional position was contrasted with that in, for example, Ireland, where referendum results are binding. Moreover the 2015 Act  – unlike that of 2011 providing for a referendum on the electoral system – did not even contain a requirement for the Government to implement the result.

Finally, it is also worth pointing out that reluctance to give Parliament the final say on Brexit undermines the Leave campaign’s principal argument: that quitting the EU would “bring sovereignty back to Westminster”. The dispute about “Henry VIII powers” in the Withdrawal Bill indeed echoes many of the historical objections to use of the referendum or plebiscite: that it is a device to remove powers from Parliament and give them, not to the people, but to the Executive. 

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