The Plebiscite Bill: Politics In Addition To Law

 

Steve Peers

Yesterday’s publication of the Referendum Bill fired the starting pistol inwards the procedure of renegotiating the UK’s membership of the EU, in addition to belongings an ‘in-out’ plebiscite on the results. I’ll await at 2 different elements of the Bill: the parliamentary procedure in addition to its primary contents. It inevitably leaves to a greater extent than or less issues out, since a Referendum Bill is only meant to bargain amongst the basic plebiscite process, non amongst the noun questions similar the content of the renegotiation or the consequences of withdrawal.

Parliamentary process

Although to a greater extent than or less press reports give the impression that the contents of the Bill are already law, this is patently non the case. Every Bill must hold out approved yesteryear both Houses of Parliament before it becomes law. Even then, it would ever hold out possible to ameliorate the ensuing Act of Parliament.

Will the Referendum Bill teach an Act of Parliament? Yes, that’s virtually certain. The regulation of a plebiscite on European Union membership is non only supported yesteryear the Conservative bulk inwards the House of Commons, but likewise (following a recent U-turn) yesteryear the Labour party. That should ensure that a Referendum Act tin privy teach through both the Commons in addition to the Lords.

However, the devil is inwards the details. It’s yet possible that the Bill could hold out amended, especially equally regards the issues discussed below (the question, the timing in addition to the franchise).  In the final bulk Conservative government, the Bill to ratify the Maastricht Treaty ran inwards to endless problem at the hands of an alliance of Labour in addition to Eurosceptic Tory MPs. The electrical flow Conservative regime has a similar slim bulk inwards the House of Commons, in addition to spell at that spot are fewer Labour MPs, at that spot are to a greater extent than Eurosceptic Tories. Time volition tell whether these 2 groups (perhaps inwards conjunction amongst the big contingent of Scottish National Party MPs?) tin privy uncovering mutual drive equally regards whatsoever amendments.

The Bill likewise has to piece of job yesteryear the House of Lords, of course. While it is unlikely to hold out defeated equally such at that spot (in business office because of the ‘Salisbury Convention’, which provides that the House of Lords volition non oppose the regulation of Bills which were laid out inwards the winning party’s manifesto), over again at that spot may hold out attempts to ameliorate the details. The political dynamics are different, since the Conservative political party does non possess got a majority. While the House of Commons tin privy override the House of Lords if ask be, yesteryear purpose of the Parliament Acts, this would drive a one-year delay inwards the entry into strength of the law, scuppering whatsoever invention to grip the plebiscite inwards 2016.  

 

Main contents

Most of the Bill sets out the dry out but necessary especial of the mechanics of belongings the referendum. But it does address 3 telephone substitution issues: the timing, the query in addition to the franchise (ie, who tin privy vote). I volition address these issues inwards turn.

First of all, the timing. As promised yesteryear the Conservative party, the Bill sets a deadline of end-2017 for the Referendum to possess got place. H5N1 plebiscite inwards the midst of Christmas shopping is highly unlikely, thence the latest realistic engagement would hold out Nov 2017. In fact, the existent number is whether the plebiscite powerfulness hold out held earlier, sometime inwards 2016. There’s been to a greater extent than or less speculation that it powerfulness hold out held inwards May 2016, on the same engagement equally elections inwards London, Scotland in addition to Wales. Ideally, equally recommended yesteryear the blogged on the reasons why the full general election franchise should hold out used, due to concerns virtually legitimacy equally good equally tactics. (See likewise the analysis yesteryear Jo Shaw here). But to a greater extent than or less possess got suggested that it may hold out illegal to ban European Union citizens inwards the Britain from voting inwards the referendum: run into the arguments yesteryear Richard Edwards here. 

Let’s examine these legal arguments inwards to a greater extent than detail. The obvious declaration against the correct of European Union citizens to vote inwards the plebiscite is the listing of European Union citizens’ rights inwards Article twenty TFEU. That listing includes the correct to vote inwards local in addition to European Parliament (EP) elections, but does non cite other elections. Article 25 TFEU thence says that for European Union citizens to possess got to a greater extent than rights, a farther Council Decision has to hold out agreed in addition to ratified. In the absence of such a decision, they sure as shooting do non possess got farther electoral rights. The full general references to republic inwards the Treaties aren’t real specific, in addition to mostly (for illustration inwards Article 10 TEU) refer to the European Union institutions only. It can’t hold out seriously argued that the ‘general principles’ of European Union police push clit require all European Union citizens to vote inwards referenda, inwards the absence of whatsoever widespread exercise to that effect (even Republic of Ireland does non permit Britain citizens to vote inwards referenda).

The European Union Charter of Rights doesn’t assistance either. It only mentions the rights to vote inwards local in addition to EP elections, in addition to Article 52(2) of the Charter makes clear that these provisions of the Charter do non add together anything to the citizenship provisions of the Treaties. Anyway, the Charter only applies where at that spot is a link to European Union law, in addition to although the procedure of withdrawal from the European Union is referred to inwards Article 50, Article 50(1) inwards plough refers to the national police push clit of private Member United States of America equally regards the determination on whether to withdraw. It couldn’t hold out whatsoever clearer that it’s solely upward to each Member State to determine who votes inwards a withdrawal referendum. And for those contemplating litigation on this issue: do yous seriously scream back that the prospects of an ‘In’ vote (and British citizens’ consider for the European Union to a greater extent than generally) could mayhap hold out helped yesteryear a European Union or ECHR courtroom (or a Britain courtroom doing their bidding) ordering Parliament to permit European Union citizens to vote inwards the referendum?

 

Barnard & Peers: chapter 2

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