Why didn't European Union Referendum Act 2015 require ministers to implement the referendum's majority outcome by secondary legislation?

Question

Is "infamously" alluding some hoodwink or deviltry?

Bradley, Ewing. Constitutional and Administrative Law (2018 17 ed). Emboldening on p 80.

      Dicey famously observed that the ‘judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament’.201 In some constitutions, for example in Ireland and Australia, constitutional amendments take effect only if they are approved by referendum. In other constitutions (for example, Denmark and Switzerland) legislative proposals may be subject to referendum. Until 1975, the United Kingdom found no place for direct democracy, apart from the border poll in Northern Ireland.202 Even when exercises in direct democracy are conducted, their meaning is by no means as clear as the binary question posed might suggest: did the rejection of the alternative vote system signify love for the existing system or just a dislike of the offered alternative, and when a majority voted to leave the EU, the referendum itself told politicians nothing about what the majority saw as the appropriate form of the future British relationship with the EU. While advisory referendums do not directly affect the authority of Parliament, it would affect the position of Parliament if referendums were to become mandatory for certain purposes. In one case, the alternative vote referendum, the outcome was not advisory: had a majority voted in favour, s 8 of the Parliamentary Voting and Constituencies Act 2011 required ministers to implement

p 81

the referendum by secondary legislation. Infamously, no such provision was included in the European Union Referendum Act 2015. It has been argued that referendums should be used ‘as an extra check against government, an additional protection to that given by Parliament’. 203 What aspects of the constitution should be protected in this way? There is a case to be made for requiring a referendum whenever it is proposed to transfer the powers of Parliament; as John Locke said, [The Legislative cannot transfer the power of making laws to any other hands.] ‘it being but a delegated power from the People, they who have it cannot pass it to others’.204 There is, however, little sign of a more considered structural use of referendums, recent use of which has been on an ad hoc basis, with the ground rules and consequences being laid down afresh for each referendum.

Answer 1

"Infamously" probably refers to the nearly 4 years of parliamentary deadlock on the matter of the actual terms of Brexit since then.

It's hard to see how secondary legislation could have been possibly set out in the referendum legislation for anything but a no-deal Brexit, i.e. one that did not envisage any negotiation with the EU on an exit deal. And as we know from subsequent developments in the UK Parliament, a no-deal Brexit was the least favorite option of most MPs.

Answer 2

Thee are two points here firstly about the binding and secondly about the secondary legislation.

Firstly referendums in the UK are not binding this is due to the requirements of parliamentary sovereignty. That is the legislation can not be binding of future governments. A post-legislative referendum could be called to trigger pre-enacted changes. Similar to the changes made by the fixed term parliament act neither of these options would prevent future governments passing further legislation to change, reverse it or temporarily ignore it (like Boris Johnson did to trigger an election). The brexit referendum was pre-legislative and thus didn't trigger brexit it's self.

As for secondary legislation the affects of brexit on the statue books are obviously extensive. Various attempts have been made to pass enabling rules so that brexit could be done. However given the extent, importance, controversy, potential impact and lack of clarity over brexit these have been unsuccessful or at least limited, partly due to some of them being excessively enabling.

Any attempts at writing enabling clauses into the original act would have been complicated by the expected fall of the Cameron government in the event of brexit being voted for, the expectation of remain winning and lack of any specifics about what brexit was supposed to look like. It is likely that if brexit had been properly defined, at this time so that it could be enacted, that it would not have passed parliament and if it had would have failed to get support in the referendum.

In all events parliament is unlikely to be amenable to reducing it's power on an issue so important and extensive as brexit.

TLDR referendums can not be binding. Enabling acts are possible but require agreement from parliament.

Answer 3

More incompetence, really. They never thought about that outcome and Brexit was against Conservative party policy up until then. The party then had to switch to implementing a policy it didn't internally agree on and didn't originally want, which obviously went badly.

Referendums don't really make sense in the Westminster system unless they are confirmatory: where the government has the policy, but is aware it is controversial and wishes to verify support.

Or they apply to only a subset of the electorate, such as the NI referendum and the Scottish ones.