The result has triggered rampant speculation—from economic turmoil and political crises to independent opportunities and renewed prosperity. But underneath this fog lies the law, which can separate reality from fiction. This panel explored the legal complexities and constitutional implications of Brexit.
Robertson argued that the EU Referendum had distorted the distinction between sovereignty and democratic will. “Both sides in this campaign told this one great lie. It was a lie of omission; they didn’t tell the public, because it didn’t suit their rhetoric”. In reality the referendum was advisory and not legally binding because, ultimately, MPs are bound to act by their conscience as to what they think is best for the country. In the UK 38% of the population voted for Brexit, 35% voted for Remain and 28% did not vote at all. Robertson emphasised that this result does not demonstrate a clear majority in the eyes of the law.
Renwick cautioned against ignoring public opinion. It might be appropriate for a second referendum to take place over the next few years, irrespective of public opinion, due to the lack of information voters were given during the first referendum. Renwick argued that there are two issues at stake:
- We do not yet know what the leave package is; and
- The quality of debate did not provide a full picture and many people on both sides did not make their decisions based on “solid groundings”.
The issue of Scotland also arose. The vote for Brexit could indeed warrant a second referendum for independence as it constitutes a material change. However, the Scotland Act adds to the complexity, as it binds the Scottish parliament to EU law.
Barnard concurred that there is a very real possibility of a second referendum on Brexit.
However, it should not occur straight away. Instead, there would have to be a range of options once there is a clearer picture of what is on offer. One would be to stay in, one would be to “see what the house looks like”, to quote former Prime Minister Tony Blair and the last option would be to leave altogether.
Britain is only one of two countries, the other being Saudi Arabia, that has no codified constitution. Instead, a system of conventions and practices has guided the country in the past. There is no precedent for deciding how we go forward. The panellists stressed that an incredible number of issues must be resolved within the two-year timeframe once Article 50 is triggered - from trade and services to regional, scientific and university funding to agriculture and environment. Greenland’s exit experience, where just one issue, fisheries, took three years to negotiate illustrates the enormity of the task ahead.
About the Speakers
Geoffrey Robertson QC is founder and joint head of Doughty Street Chambers. He has had a distinguished career as a trial and appellate counsel, an international judge, and author of leading textbooks. He has argued many landmark cases in media, constitutional and criminal law, in the European Court of Justice; the European Court of Human Rights; the Supreme Court (House of Lords and Privy Council); the UN War Crimes courts; the World Bank’s International Centre for Settlement of Investment Disputes (ICSID) and in the highest courts of many commonwealth countries.
Alan Renwick joined the Constitution Unit at University College London in September 2015. He is one of the world’s leading experts on processes of electoral reform and has provided evidence to parliamentary select committees on a range of topics. He has been a leading voice in favour of a constitutional convention for the UK. Alan also conducts research on referendums, particularly looking at the quality of the debates and at how opinion changes over the course of these campaigns. Before coming to UCL, Alan was based at the Universities of Oxford and Reading.
Catherine Barnard is Professor of EU law and Employment law at the University of Cambridge and is a Fellow in Law at Trinity College, Cambridge. She is a leading expert on European labour law and is author of the leading text on EU single market law. She provided expert analysis for the UK Government's 'review of competences' focusing on the division of powers in the European internal market.
Hywel Williams leads the Legatum Institute’s The Culture of Prosperity programme. Hywel is also an historian, commentator and broadcaster. His books include The Age of Chivalry: Culture and Power in Medieval Europe 950-1450; Emperor of the West: Charlemagne and the Carolingian Empire; Sun Kings: A History of Kingship; Days that Changed the World: the Fifty Defining Events of World History; Cassell’s Chronology of World History: Dates, Events and Ideas that Made History; In Our Time: Speeches That Shaped The Modern World; Britain’s Power Elites: The Rebirth of A Ruling Class; and Guilty Men: Conservative Decline and Fall 1992-1997. His television credits as writer and presenter include documentaries on David Lloyd George, the career of Pope Benedict XV, and an international history of the late twentieth century. His history of the modern coal industry, and a polemical essay, Community and its Myths, were broadcast by S4C in 2015.