Brexit: A policy exposed
| Published date | 01 December 2019 |
| Date | 01 December 2019 |
| Author | Scott Crosby |
| DOI | 10.1177/2032284419892076 |
| Subject Matter | Editorial |
Editorial
Brexit: A policy exposed
The Brexit process continues to present developments of interest to criminal lawyers.
In the Guardian Newspaper of 29 October 2019, Polly Toynbee sees Brexit as nothing less than
an ‘historic crime of leading the country astray with lies and false visions’. That is a powerful
condemnation – she is asserting no less that the outcome of the 2016 referendum on the UK’s
membership of the European Union (EU) was obtained by fraud. In the final analysis, however, the
referendum result, be it based on fraud or simply on the paucity of information given to the
electorate on a complex multilayered matter, remains valid in UK law. Misleading the electorate
on the issues at stake does not delegitimise referendum results in the United Kingdom. This was
confirmed by the English High Court on 7 June 2019 when it dismissed a private prosecution
against Mr Boris Johnston for making false claims to the electorate about the cost of EU mem-
bership on the grounds that these were political statements to be weighed up not by judge and jury,
but by the electorate itself.
This suggests there is a defect in British law. This can conveniently be explained by reference to
Swiss law. The Federal Court of Switzerland (Bundesgericht) has recently declared that a federal
referendum held in 2016 was invalid because the electorate had not been given enough and in one
respect had been given false information, so that the freedom of the vote had been infringed (Cases
1C_315/2018, 1C_316/2018, 1C_329/2018, 1C_331/2018, 1C_335/2018, 1C_337/2018, 1C_339/
2018, 1C_347/2018, 10 April 2019 and Neue Zu
¨rcher Zeitung, 10 April 2019). The referendum
was on a proposed change to tax law, designed to remove the discrepancy whereby a married
couple, both of whom worked, paid more income tax than an unmarried but cohabitating couple
with two incomes – the so-called ‘Heiratsstrafe’ or marriage penalty. The government claimed that
this affected 80,000 couples, whereas the true figure was around 500,000. This judgment, although
widely reported in the UK press and its relevance for the Brexit referendum explained, had no
impact in the United Kingdom, where the referendum result is regarded as almost sacrosanct,
despite widespread acknowledgement of the deceptions used.
Yet it bodes ill if deliberate and persistent deception of the electorate in a referendum or in
political elections does not affect the legitimacy of the result. It means that political power can be
obtained by fraud and deception. The consequences of such falsehoods are potentially far-reaching
and dangerous. An analogous example is the suspension or prorogation of the UK parliament by
the incumbent prime minister. This suspension negated the electorate’s right to be represented and
was obtained by deceiving the Head of State into assenting to the suspension decision. It was
wisely declared illegal by the Court of Session in Scotland and (overturning the contrary decision
of the English High Court) by the UK Supreme Court on 10 September 2019 (Miller/Cherry (2019)
UKSC 41). This unanimous judgment was decried in government quarters as judicial meddling in
politics, thereby ignoring the vital point that where a political act infringes individual or collective
rights, the courts have jurisdiction.
New Journal of European Criminal Law
2019, Vol. 10(4) 321–323
ªThe Author(s) 2019
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DOI: 10.1177/2032284419892076
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