Open Letter to Theresa May

Dear Prime Minister

In light of the advance briefing given to Members of Parliament in connection with the 2015 Referendum Act, that the referendum was to be advisory only and not binding, I write to ask you how it is that the result of the referendum and whether it should be acted upon has not been debated by Parliament, with a vote taken expressing Parliament’s view.

We have a representative democracy, in which Parliament is sovereign, and in which it is the responsibility of members of both Houses of Parliament to deliberate on how to serve the best interests of the country. Your government under your predecessor had an explicit policy in favour of continued membership of the European Union, a policy supported by large majorities of members of both Houses of Parliament. It would seem that this alone should prompt you to place the outcome of voting in the referendum, and the circumstances in which that result was achieved, before Parliament.

There are however even stronger reasons why this should happen. The 51.9% of the 72% turnout which voted for ‘Leave’ does not confer a mandate for the UK to leave the EU. Such a margin would not permit a Trades Union strike, it is far below the threshold for a Parliamentary decision in favour of a dissolution, and no other question of major constitutional import can possibly be justified by such a narrow margin of actual votes cast. But further: this percentage of actual votes cast represents 37% of the electorate – and that in turn means it represents about a quarter of the UK population. How can anyone imagine that this represents anything remotely close to a mandate for constitutional change of historic proportions, in which highly significant individual rights are at stake such as citizenship of the EU, free movement, and participation in EU political processes?

You will assuredly be aware that the campaign on behalf of Leave was predicated on a raft of false promises and misrepresentations, some of an egregious kind which raises questions about the accountability of those who led the campaign. In a Parliamentary election such accountability lies at the heart of our democratic process. In the case of this referendum, false promises and outright untruths, supported by forty years’ of tabloid misrepresentation of the EU, had an influence on the outcome, and the perpetrators are scatheless: indeed you have rewarded one of them with high office. This offers an indirect opportunity for accountability, but too indirect for the present instance.

You are of course aware that the referendum was called by your predecessor as an expedient to quieten one wing of your Party and to lessen UKIP influence in Conservative constitutencies in the last general election – a Party political expedient which no-one seriously believed could produce a train-wreck of the UK economy and future. It was a bad mistake to call a referendum, and it would now be the wise and right course to accept it as such and to put matters right. To pretend that a referendum on this subject was a matter of constitutional urgency at a moment of high historical import, would be a nonsense; it was neither – rather the contrary – but were it so, it should have been designed to be, and publicly stated to be, binding if it met an appropriately high bar of at least a two-thirds majority of the entire electorate.

Indeed the flaws in the design of the referendum were especially serious, given the outcome. Denial of the vote to 16-17 year olds, exclusion of citizens living abroad, exclusion of our fellow EU citizens from other parts of our European Union who live and work in the UK, lack of controls on polling and betting, all conspired to distort the outcome. (Allowing betting books to be opened on the vote had an especially malign effect: the bookies claimed that a Remain win was over 80% probable: how many stayed at home thinking this was an accurate prognostication? Polling in the week before a vote, and betting on voting at all times, should be banned: this is a matter for legislation.)

You have appointed ministers to investigate options for ‘Brexit.’ This seems extremely premature given that our sovereign Parliament has not yet decided whether it will accept the outcome of the referendum. Until such a decision is reached, the UK is a member of the EU and should be continuing to benefit from that membership. Instead the uncertainty and turmoil in the economy is being allowed to run without check. The indecisiveness and confusion resulting from your not placing the matter before Parliament, and acting as if the tiny margin of actual votes cast in the referendum were binding, is doing the UK great harm.

I look forward to your answer, and to your explanation for it, as our Prime Minister and as a member of our sovereign Parliament who shares its duty to act on behalf of our country’s best interests.

Yours sincerely,

Professor A. C. Grayling