[tom_mellior]

> it is impossible to have a truly binding referendum: they are all advisory as nothing can bind parliament, even a referendum result

That may be the case in theory: Even if Parliament made a law saying a referendum was binding, it could later undo it. But they didn't even pretend it was binding, although there was a precedent from the alternative vote referendum, which was explicitly binding according to the act authorizing it.

That also would have saved all the High Court hoopla that followed.

[Silhouette]

That isn't a very strong argument.

The enabling legislation for the referendum infamously didn't say anything about the specific consequences of a decision either way. In particular, and contrary to comments by someone else in this discussion, it also didn't say anything specific about being binding or not on any specific party to do any specific thing.

However, in the debates on the legislation, MP after MP, up to and including government ministers, stood up in the House and said that they intended to give voters the final say in the decision. You can read this in Hansard, and it was really very clear what those MPs thought they were voting for.

The leaflet, distributed to all households in the UK by the government at taxpayers' expense, also gave a very clear and unambiguous statement to the same effect. Absent evidence to the contrary, it seems reasonable to assume that ordinary people voting in the referendum also thought they were voting for what had been described in the official information about it.

The whole non-binding issue only really hit the headlines after the fact, when it started to look like the losing side in the referendum's best opportunity to overturn the result. That's also the time when lots of people in the UK who weren't constitutional lawyers suddenly started being experts on parliamentary sovereignty. (If you want to really heat up a discussion, ask some of those people where the principle of parliamentary sovereignty comes from, throw in a few difficult questions about whether it has any robust legal foundation or democratic authority at all, and then point out that even if it does the principle itself has nothing to do with Parliament being sovereign over the people but rather over other branches of the government.)

I'm actually a moderate when it comes to Brexit itself, but I do have an intense dislike of using sophistry to undermine democracy and civilised government, and I'm sorry to say that there has been more of that than I've seen at any time in my adult life since the Brexit issue became so divisive.

[tom_mellior]

> That isn't a very strong argument.

Not sure what you're referring to. The fact that there was precedent that MPs could have copied and pasted to be on the safe side and avoid the Supreme Court having to decide? It's their job to make good laws, not just to give speeches suggesting what their unwritten intentions may be.

> The leaflet, distributed to all households in the UK by the government at taxpayers' expense, also gave a very clear and unambiguous statement

Yes, but as we know, the entire point of the court case was that that statement was not the government's to give.

> The whole non-binding issue only really hit the headlines after the fact

That may well be, but it does not invalidate the legal argument behind it.

Don't take my word for it. Don't take the words of "lots of people in the UK who weren't constitutional lawyers". Take the Supreme Court's. Do you really think its ruling is "using sophistry to undermine democracy and civilised government"?

I understand that you dislike the way these debates have developed. I don't understand why you don't blame this on the MPs who had the power to prevent it.

[Silhouette]

Not sure what you're referring to.

The whole argument about the referendum being non-binding.

As a matter of democratic government, the people were given a say in a referendum. That referendum was, as far as I can tell, properly conducted according to the rules known in advance. By the standards of any national vote, including things like general elections, the turnout was high, and while the margin was not huge, the option that received the most votes was clear. Both MPs' intent and the people's expectation before the vote was apparently that the decision being made was final.

Beyond that, one can argue about legal technicalities and constitutional nuance, but it doesn't change the result. Disregarding that result, in the absence of a further popular vote or other similarly authoritative step, would IMHO have no popular mandate, without which again IMHO a government has no legitimacy in the first place.

(Just to be clear, my whole argument here is really about the democratic legitimacy of the process. The integrity of our system of government is, to me, a higher priority than any individual decisions or actions by any current part of the government, just as in other situations I might defend someone's right to express an opinion even though I personally did not agree with it.)

It's their job to make good laws, not just to give speeches suggesting what their unwritten intentions may be.

Indeed, but it is an imperfect world and even legislators and lawyers sometimes leave ambiguity in their wording. When that happens, we need to take some intelligent and hopefully fair and transparent view on how to interpret the law in question.

As it happens, there does seem to be some legal precedent for considering what was said in Parliament in the process of making the law to resolve such ambiguities. The House of Lords changed the previous standard of considering Parliamentary commentary as privileged and allowed the use of material from Hansard under some conditions, in Pepper v Hart. I was a little surprised that the Leave side didn't try to rely on that sort of argument during the court challenge.

That may well be, but it does not invalidate the legal argument behind it.

Indeed. But equally, a legal argument can never invalidate a moral/ethical one. If the view of the people on a specific matter has been explicitly asked and answered, I struggle to accept a government that then disregards that view as legitimately representing its people.

Take the Supreme Court's. Do you really think its ruling is "using sophistry to undermine democracy and civilised government"?

Assuming we're talking about the Supreme Court case regarding whether the government had to consult Parliament before triggering Article 50, as far as I know these kinds of arguments were not pursued in detail.

I haven't read the whole thing, but my understanding is that both sides stipulated that the referendum was non-binding, the enabling legislation didn't explicitly give the government the power or obligation to do anything specific after a leave vote, the government didn't attempt to invoke Pepper v Hart or any similar implicit authority, and the action the government wanted to take would have legislative effects. How could the Supreme Court have reached any other decision than it did if those were the facts of the case and accepted by both sides?

No doubt such senior judges were considering all kinds of details carefully before reaching their decision, but it seemed to me at the time that the government never really presented much of an argument.

I don't understand why you don't blame this on the MPs who had the power to prevent it.

I don't think MPs did have the power to prevent it, though. As a matter of law, it seems our highest authorities accept that Parliament currently has no mechanism to legislate for a binding referendum. If MPs had been more explicit in the Referendum Act then it might have saved everyone some time and hassle, but it's hard to believe it would have entirely avoided all the debate over whether the result was binding given the controversial nature of the subject.

My personal view is that the best way to avoid such problems would be to have a proper written constitution that provided explicitly for binding referendums on matters of such importance as part of the machinery of government. Sadly, I have yet to be named Supreme Ruler Of The Universe, and so implementing such a constitution is beyond my power. For now. ;-)

[tom_mellior]

> As a matter of law, it seems our highest authorities accept that Parliament currently has no mechanism to legislate for a binding referendum.

I don't understand what you are basing this statement on. In the AV referendum, the act basically said "if the vote comes out yes, the minister must do X; otherwise, the minister must refrain from doing X but must do Y". This is really not complicated, and as we are agreed, Parliament's acts can bind the government in such ways.

> My personal view is that the best way to avoid such problems would be to have a proper written constitution that provided explicitly for binding referendums

I agree, which is why I find it bizarre that in this particular case you are arguing against the importance of writing down whether a referendum is intended to be binding or not, and what consequences on the government's actions it will have.

[Silhouette]

OK, I think perhaps we've been talking slightly at cross-purposes here.

I realise now that you're talking about making the referendum binding on the government, so currently the May administration. I agree that it would have been better to include those kinds of provisions explicitly in the EU Referendum Act.

Just to be clear, the moral issue I'm talking about is making the referendum binding on Parliament as well. In terms of the legitimacy of our broader system of government, I believe that not even Parliament should have the power to overrule a properly conducted national referendum. I also don't believe it would be ethical for them to do so now, even if we accept that they have that power under our current legal system, unless for example there is evidence that the popular view has changed significantly and another referendum or similarly authoritative measure dictates a change of course.