I have not met many in the legal community who either expected or welcomed the “Leave” vote in the EU referendum. Nevertheless, the profession has not been slow to address the implications, as is apparent from the content of this month's Journal – compliments to our contributors.
We are now in the curious position of having a result with a majority vote that represents various, often conflicting, opinions (such as on the key questions of the single market and freedom of movement), leaving us facing an uncertain future. The question has been raised, to what extent Parliament should consider itself bound by an advisory referendum, when part of the Leave campaign was based on restoring parliamentary sovereignty and a clear majority of MPs supported EU membership as in the national interest. Parliament having offered the referendum in the first place, it would be difficult to take the line that it should discount the result, despite the narrow majority, and it is right that negotiations begin on the terms on which withdrawal will actually take place.
But at this stage no one claims to know how the outcome will look, or to what extent it will reflect the wishes of those who voted to leave. (That is irrespective of the separate Scottish question, canvassed in our lead feature.) Given the importance of the decision, should there not be some further democratic decision of the people, once the picture becomes clearer but before we pass the point of no return?
Admittedly there are question marks over the practicalities. The other member states are pressing for the UK to get on with starting the article 50 withdrawal process and get the whole business over with as soon as possible. How they would react to some future collective change of mind can only be guessed at. And at present they are insisting that no talks will take place ahead of the formal article 50 notice – while expert opinion is divided as to whether a notice, once given, can be withdrawn before it takes effect.
But the EU does recognise practical politics, and if the other member states do not want Britain to leave, it would be in their interests as well as ours to give the people the chance to answer the question, in effect, “This is what Brexit actually means; is that what you want or do you wish to remain as we were?” Our own politicians should now propose that course of action as the right one for the whole country.