The practical and legal obstacles to a second referendum cannot be overcome, says a former Lord Justice of Appeal
WB Yeats’s poem seems appropriate on Brexit at present: “things fall apart; the centre cannot hold/……The best lack all conviction, whilst the worst/Are full of passionate intensity.” One organisation called “People’s Vote” has widely campaigned for a second referendum on Brexit. The aim appears to be to have another referendum containing the question: do you wish the UK to remain in the EU? It hopes for a different result from the 2016 referendum; a second coming. It assumes that the European Court of Justice (ECJ) will say, in answer to the question referred to it by the Scottish Courts last month, that a notice to leave the EU given by a member state under Article 50 may be withdrawn unilaterally any time before the elapse of two-year period since the notice was given. But there are many practical and legal obstacles in the way of a timely second referendum.
The Political Parties, Elections and Referendum Act 2000 does not set the franchise, the question(s) to be asked or the date of any particular referendum. So a further referendum Act has to be passed to have the desired second referendum. The government has ruled this out, although some Tory Remain MPs might back it. The Labour Party is equivocal. The Lib Dems and the Scots Nats would vote for one. But there is no majority in favour of a referendum Bill in the present House of Commons. Any EU/UK “deal” seems unlikely before mid-November, if not later.
There are three ways, realistically, that a second referendum Bill could be introduced. First, as a part of the Bill that has to be passed by parliament under section 9 of the European Union (Withdrawal) Act 2018 before any deal can be put into effect; unlikely to command a majority. Secondly, if parliament rejected any deal and the government agreed to introduce a referendum Bill to enable the public to have its say on the deal directly. Also unlikely I think. Anyway, both smack of the establishment telling the public to “do better this time.” Thirdly, the proposed deal is voted down or there is no deal, the government then lost a confidence vote and so section 2(3) of the Fixed-term Parliaments Act 2011 was triggered, leading to an early general election. Voting day for the general election would be at the end of January 2019 and the new parliament would convene in February 2019.
Assume that there is potentially a majority for a referendum Bill in the new House of Commons. The Bill has to set the question. If there was a deal would it be: accept or not? What would the significance of a majority (even an absolute one) for “No”? It would not necessarily be in favour of Remain as many might just have voted against the terms. Would there be a three-way question: accept/reject/or revoke the Article 50 notice? What if there was no absolute majority in favour of revocation? Could there be some kind of alternative voting mechanism? That also seems unlikely given the comparatively recent rejection, by referendum, of the proposal for that voting system in general elections. All these issues would take weeks to decide in parliament.
Under the 2000 Act the regulated campaign period for a referendum is set at 10 weeks. An authoritative study on the practicality of a second referendum by the Constitution Unit of UCL estimates that the minimum time needed between the introduction of a Referendum Bill and polling would be 22 weeks, or 5 months. If the Bill were introduced in mid-February 2019, polling day would be in mid-July: the holiday period. And it is way past the UK’s exit day: 30th March 2019. Under Article 50(3) of the Treaties of the European Union, the European Council (of heads of government) can extend the two-year period if asked and if it unanimously agrees to that. But it raises two questions: could the request be made without the authority of parliament, given the Miller case and the need for an Act before Article 50 was triggered in the first place? More time. And would the European Council give its unanimous approval? It would only do so if there was some utility in it. It’s obvious that an extension would not guarantee that the UK would ultimately remain in the EU: it needs the “right result” in a referendum and then (probably given Miller) an Act to revoke the Article 50 notice. Moreover, an extension of the two-year period would mean that the UK would remain in the EU during the period of the euro-elections in May 2019. The UK would be obliged to take part in them. But that might be for UK MEPs only to be ejected shortly thereafter perhaps?
To summarise: for a so-called “People’s Vote,”or rather a “second people’s vote” to succeed in its aims, it needs: a majority in the House of Commons to pass the referendum Act needed; an agreement by the EU Council to grant a sufficiently long extension of the two-year period, under Art 50(3) of the TEU, or else the UK would be out of the EU before the result of the vote were known and was acted upon; thirdly, a sufficient majority of the electorate giving the “right answer” to the “right question” in the second referendum; fourthly, a positive answer by the ECJ on the question of whether the UK can unilaterally revoke its Art 50 notice; fifthly, a resolution in the UK of the issue of whether that could be done without an Act of Parliament—the Miller case in reverse; and lastly, the continued political will to carry all this out—no comment. The chances of any “People’s Vote”resulting in the UK remaining seem slim indeed. The UK is sloping towards an EU exit, whether we like it or not.