The reply A C Grayling got when he wrote to Parliament (and how he reacted)

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Dear Professor Grayling,

Thank you for your letter of 9 September to the Prime Minister regarding the referendum on the UK’s membership of the European Union. I am responding on her behalf.

On 23 June, the country voted to leave the European Union and it is the duty of the Government to make sure we do so. The Government’s position is clear that invoking Article 50 is a prerogative power and one that can be exercised by the Government. Parliament legislated for the Referendum, which it did by large majorities in both Houses, and with cross-party support.

Although the Act itself does not include provisions that make the result of the referendum legally binding, the Government made repeated and clear statements that the outcome of the referendum would be acted upon. Indeed, the manifesto on which the Conservative Party was elected in 2015 stated ‘we will honour the result of the referendum, whatever the outcome.’ The arrangements for the referendum were also supported by Parliament.

I will respond to the specific points in your letter about the design of the referendum. The franchise used was based on the franchise used for parliamentary elections, made up of UK, Commonwealth and Irish citizens aged 18 and over and British citizens who have lived abroad for less than 15 years, as well as Members of the House of Lords and electors in Gibraltar.

As an issue of national significance, that was right, and it follows the precedent of the 2011 referendum on the voting system. Amendments proposing to extend the franchise to 16 and 17 year olds and to EU citizens were not approved by Parliament. As regards the issue of a turnout threshold or a ‘supermajority’ (requiring a specified proportion of voters, larger than a simple majority, to support a particular outcome for it to be enacted), no amendments for such requirements were debated during the passage of the Bill. There were no calls in Parliament for restrictions on betting on the result of the referendum.

Parliament will have an important role in making sure we find the best way forward. On 2 October, the Prime Minister announced that there will be a Great Repeal Bill, introduced in the 2017/18 Parliamentary Session, which will do two things. It will repeal the European Communities Act 1972 and it will remove the primacy of EU law on the domestic statute book from exit day and turn it into domestic law. The Government welcomes the full scrutiny of both Houses on this legislation.

Ministers from the Department for Exiting the EU continue to engage with Parliament on a daily basis, appearing at Select Committees and responding to questions from Parliamentarians in the usual way.

I hope this response reassures you that the Government is committed to restoring the primacy and sovereignty of the UK Parliament as we leave the EU.

RT HON DAVID JONES MP

Minister of State For Exiting The European Union

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Dear Mr Jones,

Thank you for your letter in reply to my letter to the Prime Minister regarding the referendum on the UK’s membership of the European Union. I respond as follows.

1. You write: ‘On 23 June, the country voted to leave the European Union and it is the duty of the Government to make sure we do so.’

You are wrong on both counts. Votes cast on the day, on a 72% turn-out, represent a Leave vote of 37% of the total electorate and 26% of the population of the UK. You cannot describe this as ‘the country’ nor claim that ‘the country’ voted to leave the EU. I remind you that current Trades Union legislation requires 40% of a total electorate (not merely votes cast) to trigger a strike. The legislation on general elections requires a 66% majority of all members of the House of Commons to trigger an election outside the fixed term of a Parliament. On what conceivable grounds can you describe 37% of the total electorate and 26% of the population as ‘the country’? Use of these phrases to describe the sentiment of the UK population on EU membership is, with respect, misleading, and would appear to be deliberately so. It suits ‘Brexiters’ to speak in this way.

Secondly, the Government does not have a duty to implement the result of the referendum of 23 June. Briefing Paper 07212, sent to all MPs and Lords on 3 June 2015, in advance of debate on the 2015 Referendum Bill states unequivocally that the referendum is non-binding, advisory and consultative only, and imposes no obligation on the Government to act on its outcome.

Likewise, the Referendum Act, which the Bill became, contains no clause obligating the Government to act on the outcome of the referendum.

2. You cite the manifesto promise of the Conservative Party in the General Election of 2015 that a referendum would be held on the question of EU membership and that ‘the outcome of the referendum would be acted upon.’ The Conservative Party and the Government it formed were also committed to continued membership of the EU as a matter of publicly avowed policy on which it was elected, and this was a position made clear to the electorate in the same election campaign. Which aspect of the apparently conflicting policy do you wish to emphasise?

To assist you, might I point out that the phrase ‘outcome of the referendum’ is ambiguous. Here is one clear reading: the outcome of the referendum told us that at least a quarter of the British population is ill-informed as to the true nature of the EU, and is anxious about the effects of immigration. One thing the Government could very well do to ‘act on the outcome’ is to provide more and better information on the great value of EU membership, and to point out, with the relevant empirical facts in hand, that almost all negative comment on immigration is false.

3. You defend the choice of franchise for the referendum, which I criticized on the grounds that it excluded 16-17 year olds, ex-pats who have lived abroad for longer than a certain period, and fellow-EU citizens who make their lives and careers and pay tax here (‘no taxation without representation’ used to be a principle, once) by saying that the franchise is the same as used for General Elections. The point is that this was not a General Election. This was a referendum. The difference is very great indeed. It is public knowledge that proposals to extend the franchise to 16-17 year olds were contested by those who knew that this would have a material effect in strengthening the Remain vote. In less polite quarters this is known as gerrymandering.

4. You comment on my saying that if a referendum were to be regarded as binding or mandating, it would require a supermajority of the kind you MPs yourselves require for triggering a general election, 66% or so. You avoid this point by merely saying, ‘no amendments for such requirements were debated during the passage of the Bill.’ No: for the good reason that everyone in the House had been advised that the referendum was ‘advisory’ and ‘consultative’ only, imposing no requirement on the Government to act on it.

5. Finally, in a passage which I take it you intend as a light-hearted jest, you write, ‘I hope this response reassures you that the Government is committed to restoring the primacy and sovereignty of the UK Parliament as we leave the EU.’ If however this is intended as a serious remark, I will restrain myself to the three following comments in conclusion.

First, earlier in your letter you say, ‘The Government’s position is clear that invoking Article 50 is a prerogative power…’ We have seen that the Chief Justice and his colleagues in the Divisional Court do not agree with the Government on this, and we await the Supreme Court’s view too. Should the justices of the Supreme Court concur, you have the delicate irony of a possibility: that of making a further appeal to the European Court of Justice. It will however be a matter of surprise if any panel of justices were to think that the UK Government has a prerogative power which would have enabled it to take the UK out of the EU even without a referendum, and whenever it wished; which is the clear – and absurd – implication of the Government’s position.

The sovereignty of Parliament is connoted in this. As the UK’s sovereign body, it has the discretion, the right and the power to choose not to take the ‘advice’ of the advisory referendum, as not being in the UK’s best interests.

Second, as to the larger sense of sovereignty you wish to imply, namely the sovereignty of the UK as a state: well! we are members of NATO, the WTO, the UN, we have obligations under international law, we have duties to allies; we have constraints as a result of treaties, trade deals, and internationally-binding contracts; and we exist in a tightly globalized world economy. In light of this the concept of the ‘sovereignty’ of any state is an empty piece of rhetoric. So talk of ‘sovereignty’ in this connection it is the kind of waffling cant used by politicians in elections and referendums which signifies little.

Third and finally, the Government’s use of the referendum outcome as an excuse to take the UK out of the EU will damage the economy – it already has; it will diminish and marginalise the UK; deprive its citizens of the rights they have as EU citizens; damage UK science and education; limit the future prospects of our young people; and it will be many, many years, if ever, that the UK’s reputation will recover from the inanity of this endeavour.

Why? Because as one of the largest economies of the EU it had a leading role in one of the world’s three great blocs of influence. If the Government acts on the ill-informed will of a quarter of the population, it will have reduced a once-great and influential nation to a minor offshore player.

I look forward to your detailed comments on each of these points, which I shall greatly appreciate receiving.

Yours sincerely,

Anthony Grayling

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