Was the Referendum vote of 23rd June 2016 unlawful?

Politicians seem to be struggling to get beyond the "never mind the quality feel the width" approach to the Brexit Referendum.

The generally received wisdom is to the effect that the Referendum vote on 23rd June was conclusive.

Members of Parliament have been commenting on the result a little like headless chickens.


They  seemingly can't see the problems with the Referendum vote and, similarly, don't seem able to identify the fundamental problem with the European Union Referendum Act 2015.

In this post I want very briefly to put forward a view contrary to the docile acceptance of the vote on 23rd June..

I did so in my written submission to the Supreme Court which formed part of my application to intervene in the Brexit Appeal.

Here I'm expressing myself largely for a lay audience.

I believe that

1. The European Union Referendum Act 2015 was unlawful because it was incompatible with the European Convention on Human Rights and the Charter of Fundamental Fundamental Rights of the European Union. In particular it was discriminatory.
2. The vote was additionally incompatible with Article 3 of Protocol 1 of the European Convention on Human Rights.

In 1983 when Section 2 of the Representation of the People Act 1983 was passed it was entirely lawful to discriminate against aliens (such as citizens of other European Union Member States then were) with respect to political activity.

Once the concept of Citizenship of the European Union came into effect the situation changed .

This was recognised in the UK by allowing "relevant European Union citizens" (citizens of Member States other than the UK and Ireland) to vote in UK local government elections.

But no comparable change took place with respect to Parliamentary elections.

In other words, our fellow EU citizens were discriminated against by being excluded from voting in Parliamentary elections.

Similarly, those same EU citizens were discriminated against by being excluded from voting in the Brexit Referendum of 23rd June 2016.

If those 3 million or so EU citizens had been allowed to vote in the Brexit Referendum I believe the result would have been very different.

I think it's fair to assume that almost all would have voted "Remain". After all, do turkeys vote for Christmas?

I've asked the Supreme Court for a declaration that the European Union Referendum Act 2015 was incompatible with Convention Rights expressed in the Human Rights Act 1998.

In addition, I've asked the Supreme Court for a declaration that the Referendum was incompatible with Article 3 of Protocol 1 of the European Convention on Human Rights.

My argument is to the effect that the untruths told by the Leave side in the Referendum tainted the vote to such a degree that the vote was no longer "free and fair".

The question of Article 3 of Protocol 1 in the context of the Scottish Independence Referendum split the Supreme Court in 2014. The present case is very different from Moohan.

Will the Supreme Court accept my arguments on these points?

I'm not holding my breath. But nor do I totally discount that possibility.

Those arguments may need to be explored in another legal context. Possibly in a British Court. Possibly (or additionally) in a European Court.

Meantime if some Brexiteer keeps telling you that the vote on 23rd June was conclusive, don't be afraid to tell him (or here) that at least some people question the legality of the whole affair.