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Overturning the referendum

Barristers' letter to the Prime Minister asks for referendum to be overturned

Philip Kolvin QC of Cornerstone Barristers* drafted an open letter to the Prime Minister for which he collected signatures from many other members of the Bar. This letter asserted that the referendum result was only "advisory",  and called for the whole Brexit process to be put on ice while a Royal Commission sits, to be followed by a Parliamentary free vote on Brexit.

(*We understand that Mr Kolvin sent this letter in his personal capacity and not on behalf of Cornerstone Barristers chambers).

Lawyers for Britain have published our own commentary on this and some other attempts currently being made to frustrate or overturn the democratic decision of the British people: see our post Invoking Article 50: the Law, the Constitution and Politics. We explain there why the suggestion that the referendum is only "advisory" is based on wilful disregard of the facts and woeful ignorance of the United Kingdom's constitution.

Reactions of other barristers

We have been contacted by many lawyers who strongly disagree with Mr Kolvin's initiative, and we bring you some of their reactions below. We believe that those who have been drawn into supporting Mr Kolvin's ill-advised initiative would do well to consider carefully the points made below.

From Sarah Edwards of Queen Elizabeth Building to Philip Kolvin QC

Date: Monday, 4 July 2016
Subject: Please reconsider your letter

Dear Mr Kolvin

I am writing to express my concern about the letter that you are proposing to send to the Prime Minister calling for a Royal Commission followed by a free vote in Parliament.
You are clearly seeking to overturn the result of the referendum, reached after a democratic vote with a high turn out.  I believe that, whatever your own personal views about Brexit,  it is wrong to undermine democracy in this way, and it is also disingenuous for the signatories to use their status as Queen's Counsel or as barristers to lend legitimacy to what are clearly personal, if strongly held, views.
As to your letter itself, the referendum surely must be respected and not just "acknowledged".  After all, there was a clear and decisive majority with 17.5 million people voting in favour of Brexit and their views are no less important than yours or mine.  You refer at paragraph 4 for the need for an "objective understanding" of the benefits, costs and risks of triggering Article 50, but your reasons are with respect, anything but objective and your use of the word "evidence" in paragraph 4(a) is clearly controversial.

It is also quite wrong to seek to change the rules for the referendum retrospectively - on what basis do you assert that the the referendum did not set a threshold necessary to leave the EU? The European Referendum Act 2015, passed by an overwhelming majority of 544 to 53, provided for a single majority vote.  It is far too late to seek to challenge or amend that legislation.    As to the request that a Parliamentary vote should take place with a greater understanding of the economic consequences, you will surely acknowledge that the voters for Brexit cannot have been impressed by the dire warnings for the economy – perhaps they regarded democracy as a more important ideal to fight for than the short–term effect on the financial markets?  
Have you given any consideration as to how a letter such as this could be perceived by the general public?  Barristers are often perceived as elitist and out of touch, and your letter, with its arrogant and patronising disregard for the result of the referendum can only support that perception.  I believe that it would be a poor message for the Bar to send out to the general public that we, as barristers, will seek to undermine the democratic vote if we don't like it, and in my view this could undermine public trust in our profession.  It is for this reason that I have today forwarded your letter to the Bar Council. 
I urge you to pause and reconsider the wisdom of sending this letter.  If barristers won't uphold democracy, then who will?
Kind Regards
Sarah Edwards
Queen Elizabeth Building,
Temple, London

From Frederick Philpott of Gough Square Chambers to Philip Kolvin QC

Date: 30 June 2016
Subject: BREXIT Meeting

Dear Philip,

Your message about the meeting has been passed to me. I will not be attending for the reasons set out below.  To add balance to the meeting you may care to have it read but that is a matter for you.

Barristers and all others are entitled to be unhappy or disgruntled with the result. To be “deeply troubled” is a different matter as that gives the impression of wanting to challenge the will of the people (with a majority of over 1.2 million). The press may well, and rightly, portray this as an example of lawyers being very much part of the elite who even now fail to understand the country’s decision to take back control and leave a democratically and financially unaccountable and failing organization.

As with the pre-ballot threats, the insults after the result (which the Establishment thought to be a foregone conclusion – 20% majority for “in” briefed Number 10 after the polls closed)  says more about those throwing them than us. The British people were no more intimidated by Mr. Cameron and the like than our people were in the Wars or by the IRA. I do not worry about being included in those being insulted as under-educated and ill-informed.  As to the allegation that the ballot was “manipulated”, one only has to ask: who had the most money, who ramped up Project Fear, who had entirely improper Government backing and who engaged in personal smear tactics? It was not the leave campaign.

This meeting has a very unpleasant overtone of seeking views on how to go behind what has been a clear expression of the nation’s wishes.  A discussion on how to untangle the laws which have been imposed on us by our hitherto unelected EU superiors is necessary but an attempt by Parliament or by  a petition to reverse the people's decision cannot be tolerated.

As the economist Liam Halligan wrote, the petition for a second referendum is “incendiary”.   As for Parliament, the online discussion has included a reference to 18th century writing about an MP’s duty to exercise his own judgment and not simply follow the will of those who elected him.  That was much more relevant then when an MP represented all his constituents but was elected by a fraction of them (excluding all women).  Matters changed gradually from 1832 to 1928.

Last week we got our country back.  We can and should discuss how the mechanics will work but to seek to subvert and undermine that which has been decided will certainly backfire.    The mechanics are in fact easy, we just trade with EU states as we do today. They will not impose tariffs as we buy more from the EU (over 800,000 cars a year from Germany for example) than we sell.   When we sell to them we will have to continue to comply with their laws (for example food labelling) but they will have to follow the laws we make ourselves when selling to us.  This will make our market more attractive so that, for example, we can significantly change the rules on use-by dates which the current EU rules result in millions of tons of wholesome food being chucked away. This morning “City AM” said “The FTSE 100 bounces back - and a majority of investors say that London will remain a top financial centre”. 

Let us move on.

Fred Philpott
Gough Square Chambers