The EU Referendum: Who Were the British People?

Abstract

In order to neutralise the threat posed by the United Kingdom Independence Party in the 2015 general election, David Cameron, then Prime Minister, promised an in-out referendum on UK Membership of the European Union. This promise was made at a time when opinion polling pointed to another coalition. That made this an easy promise to make; if he was returned to Downing Street, it would be on the coat tails of his Liberal Democrat partners and the promised referendum would have been a red line in any coalition negotiations. The 2015 election produced a surprisingly definitive result, and we now live in the Brexit age. The British people have spoken and we are to leave the European Union. But who are the British people? Or indeed, who were “the people” who spoke on the 23rd June 2016? Defining the franchise for a constitutional referendum, defines the constitutional sovereign to be consulted on the question. That is significant, and worthy of consideration, particularly where it appears that the government made a series of choices against its own interests in defining that Sovereign, and where the definition was, in part at least, expressly upheld by the judicial branch. There are approximately 700,000 British expatriates living in the EU and 3.3 million EU citizens living in the UK all of whom were disenfranchised. The leave campaign ‘won’ the referendum by 1.3 million. It is impossible to say how each block would have voted. Some would not have cast their vote, and, of course, no group votes entirely homogenously, but given their direct dependence on EU law for their residency rights, there is a high likelihood that those blocks may have supported continued membership, or at least including them in the franchise would have influenced the result. This piece will examine the consequences that flow from defining the franchise in any given constitutional referendum, before considering the choices made in relation to the June 2016 Brexit poll. It will then examine the decisions of the Divisional Court and the Court of Appeal in upholding those choices. In doing so it will try to determine what if anything, these political and legal decisions can tell us about the political nature of the UKs constitutional order.