On 23 June, in voting to leave the EU, the British electorate initiated a process of far-reaching, largely unpredictable change in Britain's constitutional, legal and commercial arrangements. The legislation that set up the referendum had failed to specify how its result should be handled or interpreted.
Immediately, a lively debate about the constitutional implications of this vote began. In particular, the Conservative government argued that Brexit could be triggered by the Royal Prerogative power governing treaties, without recourse to Parliament. After all, this was popular sovereignty and the people had spoken. On the other hand, there were a flood of opinion pieces, not least from constitutional lawyers, on whether this would be either constitutional or legal.
Missing from this debate, however, is consideration of that central facet of the British constitution, the role of precedent. Implementing a referendum without parliamentary scrutiny and approval would be a radical departure from past practice. There is no precedent for doing so by Royal Prerogative. All other referendums in Britain have involved Parliament at some point in the process. It might be objected that there were no further parliamentary votes on any of the matters put to referendums by the Blair government. However, in each of these cases legislation had already been passed specifying, in broad detail, the outcomes of these referendums. Accordingly, the electorate was asked to ratify, or not, a decision that Parliament had already taken. The same occurred with the first national referendum in 1975, when the public endorsed a decision already taken with parliamentary approval on European membership. Had they not done so, the government would have had to come back to Parliament for consideration of alternative arrangements. Parliament determined the process and held the executive to account over the outcome.
In British referendums up until 2010 Parliament usually explicitly set the terms of the referendum beforehand. Plebiscites were used to ratify decisions already taken by Parliament, not to bypass it. Even if they had gone the other way, there is no question that Parliamentary approval would have been needed to implement their outcomes.
The Brexit referendum is thus the first where it is being suggested that the outcome can be implemented through use of the Royal Prerogative without an explicit parliamentary vote either before or after the event. This possibility only arises, ironically, because it is argued that the referendum gives popular consent to the triggering of a procedure agreed by a previous Parliament in 2009. That procedure forms part of the Lisbon Treaty that Cameron had earlier decided not to hold a referendum on. The present government are only able to contemplate using Article 50 of that Treaty to circumvent Parliament by Royal Prerogative, because they broke an earlier pledge to the electorate to put that Treaty to a referendum. This is a sign of a government that wishes to interpret what popular sovereignty means and when it suits them to do so, preferably without recourse to Parliament.
Contrary to British constitutional dogma, the present Parliament is deemed to be bound by a decision made by a previous Parliament to implement a procedure under a Treaty explicitly opposed by the present government. In no way can our current Parliament be said to have given consent to the triggering of Article 50 before the holding of the referendum. The European Union Referendum Act 2015 is entirely silent on how the results of the referendum should be interpreted- it does not even mention Article 50, in fact Parliament did not even discuss it.
Previous practice with referendums in Britain has always been that Parliament endorses the outcomes, usually beforehand but sometimes afterwards. Government intentions to circumvent Parliament on this occasion are therefore unprecedented. It might be claimed that this does not matter - the government claims the mandate of 17 million voters. Should popular sovereignty not trump parliamentary sovereignty?
The problem with this view is that democracy is not just about voting, but also about the responsible use of power. That is why general elections in Britain have historically been seen as referendums on the choice of government. Those returned to power are then held to account and eventually kicked out of power by the electorate. There is no mechanism for holding the electorate to account. Only those who exercise sovereignty on their behalf can be held to account for their actions.
Without responsible government there is no democracy, though there may be demagoguery. The forced binary choice of a referendum does not necessarily lead to those who win votes being held responsible for subsequent implementation, a standing temptation to demagogues to promise what they will never be called to deliver upon. Who then is democratically responsible for implementing the outcome of a referendum, if not the government of the day? To whom can they be held to account for giving effect to the complex detail of such an outcome if not to Parliament?
It is only the ironic happenstance of the Lisbon Treaty which they opposed, the provisions of which Parliament did not even debate in setting up the referendum, which enables ministers now to claim that they can break with past precedent and proceed through the Royal Prerogative. This would not only be unprecedented, it would also be a transfer of power from Parliament to ministers which would set a worrying new precedent.
There are good reasons why ministers have not been able to implement referendum results without explicit parliamentary approval in the past. This has hitherto prevented ministers from using and interpreting plebiscites to suit their own purposes, as seems to be happening now.
Since the Leave vote was supposed to be restoring, rather than undermining British constitutional practice, it is hard to see how such an unprecedented shift of power from Parliament to ministers can be justified.