The EU Referendum Act 2015: the worst legislation in history
It seems to me, with hindsight, the EU Referendum Act 2015 was the worst piece of legislation passed by Parliament ever.
I don’t mean this in the sense of the referendum result. Rather I mean, when you look at the events and debate of the last year, you can actually point at the legislation itself as the primary cause of those events and debates.
Take for example, the Article 50 challenge in the Supreme Court. By failing to give authority to the Executive under the prerogative it cost the taxpayer millions. Of course, May could’ve avoided that by not contesting the position and having a vote anyway given it was easily won, but even still, the failure in the Act’s drafting was the ultimate cause.
By explicitly making the result advisory, Parliament opened the door for all manner of challenges. I’m not complaining about the challenges themselves, rather that they flowed from the fact the legislation was written so badly it left too much scope for interpretation upon acting upon the result of the plebiscite.
Then there was the actual question that the Act said would be asked and the options to respond. If you recall the question was:
Should the United Kingdom remain a member of the European Union or leave the European Union?
And the responses to mark were:
Remain a member of the European Union
Leave the European Union
This was, without a doubt a massive mistake that has played out in the national debate of the last year. There was nothing about the Single Market or the Customs Union, and as we all know, a state does not need to be a member of the EU in order to be a member of either of these things.
I’m not for a minute saying we should or shouldn’t be members of these things, I’m making no statements on what Brexit should look like in that respect. Rather I’m saying that the failure to mention them in the questions to be asked, has resulted in a year of debate about what Brexit should look like, and Parliament is to blame for that by drafting, and passing a flawed Bill.
This problem was then exacerbated by the way the Act set out the manner of the campaign. The campaign groups on each side were not competing to form a Government and deliver on the outcome. They were only competing to win the vote and then scurry off back to their political parties and resume tribal domestic politics.
No one that campaigned had any obligation to own the result. Effectively the official and unofficial campaigns could say whatever they liked with no real consequence. The £350 million NHS bus is a case in point. The official Leave campaign were never in a position to deliver that anyway, and likewise nor was there any obligation on the Executive to do so. Yet you still hear the cries of “where is our £350 million?”
All this because Parliament couldn’t draw up a piece of legislation to hold a referendum on a substantive meaningful question with a clear outcome of what the result would mean.
It is ironic that now, only after the result, we have spent a year having the debate we should’ve had during the campaign. Had we done so perhaps the questions might have been more clear on the “advisory” position that the public was telling the Government.
Had we asked more than one question we would have had a much clearer picture of what Brexit the public might want - assuming Leave still won. If we had asked the same leave and remain question on not just the EU, but the Single Market and the Customs Union too, we would know the configuration option.
We could’ve even asked people what their preferred option was in the event of Leave winning the initial question on EU membership. A referendum doesn’t have to have just one question, especially one on something that has a complex outcome.
I don’t think the referendum itself was a mistake. It was inevitable given the number of treaties since the last referendum that were ratified without referenda, but it didn’t ask the right questions.
Don’t misunderstand me here. I’m not saying I think we need another one. What is done is done. This is more an observation that when political historians look upon these times they will, I think, likely conclude that the EU Referendum Act 2015 was terrible in both drafting and scrutiny. It was the fuel for the uncertainty fire lit by the Leave vote, and, I would say, the whole of Parliament is to blame for it.
So yes, I think it’s quite fair to say, with hindsight, that the Act is and was the worst piece of legislation in history.