Today I welcome to the blog Mr Dean Taylor who has taken the time to comment and pen this post on the ongoing saga that is the Conservative Party’s obsession with a referendum on membership with the EU and how many MPs seem unaware of this country’s own constitutional law.

Another day and in the news…? Yes, you guessed it: the EU.

The latest development in this ongoing saga is that the Conservative Party has moved to publish a draft referendum bill which, they say, would “guarantee” for the British public a referendum to vote on Britain’s continued membership of the EU.

Notwithstanding the various warnings (most notably that of President Obama) that a straight in/out choice would be a nuclear option and wouldn’t be conducive to effecting reform to the institution, the Conservative Party are determined to set in stone the referendum.

If I have it right, the whole story is akin to the Sword in the Stone – no one will become the King of England, but by setting the proverbial sword in the stone you make it that much harder to succeed in removing it and in this case, renege on the promise to hold a referendum. Various news reports have suggested that should this bill find its way on to the statute book, whoever is in power in the next Parliament will be bound to hold the referendum (most noteworthy of these is the report by James Landale BBC News).

Something that constantly gets reported on is the political dimension and ramifications of such a move. However, politics is not the be all and end all. Indeed, what has been neglected in all of this are the legal implications at play. Chief amongst these legal issues is the position of constitutional law.

The British constitution is said to be uncodified; that is to say that many of the rules that set out the way a country is governed are not set out in a single document such as that found in the United States (whose constitution is in the news considerably thanks to the gun control debate another debate for another day…).

Here in Britain the uncodified constitution has served well enough over the centuries providing such rules. That such rules are uncodified and indeed unwritten has meant that they are flexible and may be adapted to fit the times (see the US for comparison). Moreover, that such rules are uncodified/unwritten should in no way diminish their efficacy; these numerous rules that we rely on as providing the very basis upon which our country is governed are no less authoritative just because they are not in a single discernible document. Amongst these rules are the separation of powers, parliamentary sovereignty (which, according to the lawyer David Allen Green, people demanding a referendum tend to forget the meaning of, but I digress.), and collective cabinet responsibility amongst many others. The subject of this blog post however is the convention that parliament cannot bind its successors which, seemingly, has been forgotten since the publication of the draft referendum bill.

It might be worth organising some Constitutional Law: 101 classes for our MPs because it is established that parliament cannot pass legislation which would bind its successors. This arises out of a continuous theory which states that Parliament’s unconfined legislative power is created anew each time it meets (i.e. after each general election) regardless of what a previous Parliament enacted. As such, no one Parliament can pass legislation which would substantively impede the legislative powers of a successor. For the sake of argument, the current Parliament could not enact legislation purporting to cement the current upper tax rate at 45% in perpetuum.

Other theories exist that legislation can in fact be entrenched, if such entrenchment is procedural. So, if Parliament enacts a statute requiring a two-thirds majority (and not a simple majority) this procedural entrenchment would be allowed. If one looks to the United States’, one could argue that many of the provisions there are deeply entrenched because of the procedures required to effect repeal.

Here though, the draft referendum bill purports to do neither. Clause 1 states:

(1)  A referendum is to be held on the United Kingdom’s continued membership of the European Union.

(2)  The referendum must be held before 31 December 2017.

(3)  The Secretary of State shall by order appoint the day on which the referendum is to be held.

It therefore means that a referendum would be merely required to be held. There is nothing there which substantively or procedurally impinges on the next Parliament’s legislative power; there is nothing to stop the next Parliament – if it so wishes – from repealing this legislation.

It remains to be seen how the debate will fare with regards to the EU and Britain’s continued membership. The political debate will rage on and on, one assumes, but for all the talk of the publication of this draft referendum bill, it guarantees nothing. It is why those clamouring for it to be put on the statute book in this current session of Parliament are, legally, on a hiding to nothing.

By Dean Taylor Copyright © 2013

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