The new year has begun with a heightened sense of the magnitude of the UK’s decision to leave the EU and the imminence of the departure date. The fuse was lit in the dying days of 2017 when Lord Andrew Adonis resigned from his position as Chair of the National Infrastructure Commission. In itself that would be unremarkable were it not for the fact that Adonis used his resignation letter to lambast the government for failing to keep the UK in the EU and instead acting complicitly in the ‘populist and nationalist spasm’ of Brexit.
This was soon followed at the very beginning of the year by an intervention by former UK Prime Minister Tony Blair. Blair made clear that 2018 would be the defining year for Brexit and for the UK. While claiming to accept the outcome of the 2016 referendum, nonetheless, he argued that the will of the people was not ‘immutable’ and could change as the facts of Brexit became clear. He went on:
Once we know the alternative, we should be entitled to think again, either through Parliament or an election or through a fresh referendum, which will, of course, not be a re-run of the first because it will involve this time a choice based on knowledge of the alternative to existing EU membership.
And now an unlikely voice has floated the idea of another Brexit referendum. Nigel Farage has tweeted that:
Maybe, just maybe, we should have a second referendum on EU membership. It would kill off the issue for a generation once and for all.
Aside from the opportunity to have one last dance in the limelight, Farage’s interest in a second referendum speaks to a certain confidence that even as the facts do emerge about the consequences for the UK of its decision to leave the EU, voters would still not be persuaded that they had made the wrong choice. The very fact that they were being asked again would be seized upon by Farage as evidence that the liberal élite never listened and so the anti-establishment and pro-Brexit rhetoric would just be louder. During the referendum the Remain campaign failed to articulate a different narrative of the benefits of international cooperation in the face of common global challenges. It is not evident that another referendum could or would do so.
But aside from all that, it’s just not obvious that there is any time for a re-think.
Referendums don’t just happen overnight. They take time. And the experience of the 2016 referendum is instructive. The referendum was held on 23 June 2016. That was almost exactly 13 months on from the Bill that would give legislative authority for the referendum – the European Referendum Bill – from being introduced into the Commons. We are now just fourteen months away from the UK’s departure from the EU. The Bill itself took nearly seven months to become law (admittedly the summer recess may have played a part in that).
The Electoral Commission’s best practice for the conduct of referendums also stipulates that referendum legislation should be clear at least six months before it is required to be implemented or complied with by campaigners and those responsible for the conduct of the referendum. Note, this is not six months before the referendum is held but rather six months before campaigning gets underway. That would also entail giving sufficient time for lead campaigners to put together their bids and for them to be evaluated. Thereafter, the Commission also recommends a 10-week referendum period during which campaigning and campaign-funding is regulated.
So even if there is enthusiasm for another referendum, once you add up the time it will take to legislate and implement, it is hard to see how it could be done in the time that is left for the UK to remain in the EU.
Holding another referendum on the EU at the same time as the clock ticks down on the Article 50 process that will see the UK leave the EU by the end of March 2019 would also profoundly shape the nature of the debate. For example, how could a Remain campaign credibly try to persuade UK voters of the capacity of the UK to lead and engage with other European governments at the very moment that their leaders are making a public display of their unity as an EU27 and their preparedness even for a ‘no deal’ Brexit? How could a UK government seek to extract promises of change and reform from an entity that it is actively organizing to leave? And how could that entity countenance making promises to try and keep the UK in the EU without creating exactly the type of ‘moral hazard’ that leads Cormac Mac Amhlaigh to wonder whether Brexit can be stopped under EU law.
As I argued in Brexit Time: leaving the EU – why, how and when?, time shapes Brexit. It does so in terms of the quantum of time, and in terms of timing. The idea of another EU referendum looks like it would fail on both counts. There may not be enough time left and the timing of a referendum as negotiations continued on departure would be horrible.
All of which leaves Remainers with a choice.
Either they accept that the UK is leaving the EU and put their energies into trying to make it work. Or they need to find an alternative political means of reversing the 2016 referendum outcome. With both main political parties locked into Brexit, it is hard to see what would change to keep the UK in the EU.
Thank you for explaining that. Probably Farage has done his sums too so is brave enough to put out his challenge.
My concern now has fast become the Bills put before the House.
The Supreme Court made it clear (sorry to pinch an annoying phrase) that Sovereignty is held by Parliament and not the Government.
Yet each bill put forward goes a long way to avoid Parliamentary scrutiny in any way shape or form. They don’t even bother about using King Henry VIII powers as an excuse any more. Secret trade treaties? Whatever next?
Are MP’s going to realise what an awful state of affairs this country will be in without our Constitutional checks?
Do we really want to follow the Orders system, signed by the PM of the day, Trump style?
Or will the Supreme Court have to be approached again by concerned citizens, crowdfunded possibly, to stop us running into total dictatorship?
And will the Law be able to sort it out?
Insofar as a second referendum is concerned, it really is a case of “where there’s a will there’s a way”. A second referendum will only come about if there’s a groundswell of public opinion or MP’s can see that it’s in the national interest to do so.
Reasons which might be enough to trigger a further referendum could be that significant cheating/unfair practices were found with the 2016 referendum (eg dark money) or other factors such as the economy taking a turn for the worse; true impact assessments (or other secretive government papers on Brexit) being leaked etc.
As for the timescales for a second referendum, you are quite right to detail normal/best practice, but the only real hurdle is the leaving date of 29 March 2019 – that is the point of no return (unless some kind of ‘opt-back-in’ is built into the transition deal). Otherwise, politicians can rush legislation through Parliament (it’s been done many times before) or, as Article 50 has never been triggered before (and there is therefore no precedent), who’s to say that we can’t pause the process (probably subject to EU27 agreement) or indeed withdraw our Article 50 letter altogether – the QCs from Matrix Chambers have said legally this can be done, as has the Lord who drafted Article 50. This would give the UK the space to conduct a further referendum. Indeed, page 1 of the UKs Article 50 letter only states ‘an intention’ to leave the EU i.e. there is room for maneouvre. So, there are options out there in my opinion, but whether the ‘will of the people’ is there is another thing entirely.