“When the referendum is legally binding, the authorities must respect the people’s decision.” – Code adopted by UK under Council of Europe with 60 other states.
Read below – then shouldn’t the U.K. be abiding by these rules??
1) 2016 EU Referendum was carried out on 24th June, 2016.
2) The result was to Leave the EU by a majority of some 52%.
3) The Referendum was fiercely debated over some weeks in public and on national tv.
4) On 29 March, 2017, Article 50 was invoked after Parliament voted overwhelmingly to do so.
5) General Election on 8 June, 2017 was won by the Conservative Party on a Manifesto to carry out the will of the people and deliver ‘Brexit’.
In response to a request from the Parliamentary Assembly, European Commission for Democracy through Law (Venice Commission) adopted by the Council for Democratic Elections of Recommendation 1704 (2005) on “Referendums: towards good practices in Europe”.
The U.K. is one of the 61 members who not only helped to form the code, but adopted the Declaration on the Code of Good Practice on Referendums in 2008.
It was decided that a Council of Europe background paper on referendums should be drafted to accompany the Code of Good Practice in Electoral Matters. The guidelines on the organisation of referendums were adopted by the Council for Democratic Elections on 12 October, 2006 and by the Venice Commission 13-14 October, 2006. By Resolution 1592 (2007), the Assembly decided to forward the Code of good practice to national delegations and parliaments so that it could be applied in Council of Europe Member States without delay. On 27 November, 2008, Committee of Members adopted a Declaration on the Code of Good Practice on Referendums for the purpose of inviting public authorities in the Member States to be guided by the Code.
Code of Good Practice on Referendums
Section 3.1 Freedom of voters to form an opinion.
- Contrary to the case of elections, it is not necessary to prohibit completely intervention by the authorities in support of or against the proposal submitted to a referendum. However, the public authorities (national, regional and local) must not influence the outcome of the vote by excessive, one-sided campaigning. The use of public funds by the authorities for campaigning purposes must be prohibited.
The Government used taxpayer’s money of over £9 million to fund the printing of pamphlets to Remain in the EU which was delivered to every household.
1 “Respect for fundamental rights”
a) Democratic referendums are not possible without respect for human rights, in particular, freedom of expression and of the press, freedom of movement inside the country, freedom of assembly and freedom of association for political purposes, including freedom to set up political parties.
“The Universal Declaration of Human Rights “Article 21 (3) the will of the people shall be the basis of the authority of government…”
Section 3.4 Funding
b) The use of public funds by the authorities for campaigning purposes must be prohibited.
Section 3.1 Freedom of voters to form an opinion
- Parallelism in procedures and rules governing the referendum
4.1 When the referendum is legally binding, the authorities must respect the people’s decision.
….in the case of referendums, since it is legitimate for the different organs of government to convey their viewpoint in the debate for or against the text put to the vote. They must not abuse their position, however. In any event, the use of public funds for campaigning purposes must be prohibited in order to guarantee equality of opportunity and the freedom of voters for form an opinion.
The guidelines also emphasise another aspect of voters’ freedom to express their wishes, which is also necessary in elections but is more likely to be violated in the case of referendums: voters must be allowed to express their wishes in accordance with rules prescribed by laws, and have the right to accurate establishment of the result (see point 1.3.2.b)
(point 1.3.2.b) Freedom of voters to express their wishes also implies:
- that the executive must organise referendums provided for by the legislative system; this is particularly important when it is not subject to the executive’s initiative;
- compliance with the procedural rules; in particular, referendums must be held within the time-limit prescribed by law;
iii. the right to accurate establishment of the result by the body responsible for organising the referendum, in a transparent manner, and formal publication in the official gazette.
III. Specific rules
- The rule of law
- The principle of the rule of law, which is one of the three pillars of the Council of Europe along with democracy and human rights applies to referendums just as it does to every other area. The principle of the sovereignty of the people allows the latter to take decisions only in accordance with the law. The use of referendums must be permitted only where it is provided for by the Constitution or a statute in conformity with the latter, and the procedural rules applicable to referendums must be followed. On the other hand, referendums must be organised where the legal system provides for them (point I.3.2.b.i).
- A “yes” vote on a specifically-worded draft – at least in the case of a legally binding referendum – means a statute is enacted and the procedure comes to an end, subject to procedural aspects such as publication and promulgation. On the other hand, a “yes” vote on a question of principle or a generally-worded proposal is simply a stage, which will be followed by the drafting and subsequent enactment of a statute. Combining a specifically-worded draft with a generally-worded proposal or a question of principle would create confusion, preventing electors from being informed of the import of their votes and thereby prejudicing their free suffrage.
Point 3 – The substantive validity of texts submitted to a referendum
- Under the principle of the rule of law, the people are not exempt from compliance with the law. This applies to both procedural aspects and the substance of texts put to the vote, which must comply with all superior law. Legislative referendums must therefore comply with the Constitution; referendums within federated or regional entities must comply with the law of the central State.
- Irrespective of what national law has to say about the relationship between international and domestic law, texts put to a referendum must not be contrary to international law or to the Council of Europe’s statutory principles (democracy, human rights and the rule of law).
Point 7 Quorum
- Based on its experience in the area of referendums, the Venice Commission has decided to recommend that no provision be made for rules on quorums.
- Where a legally binding referendum concerns a question of principle or a generally-worded proposal, it is up to Parliament to implement the people’s decision. If they are legally binding, the subsequent procedure should be laid down in specific constitutional or legislative rules. It should be possible to appeal before the courts in the event that Parliament fails to act (point III.8.b).