The election on 12 December will require the political parties to set out their positions on Brexit. Already, Labour is pledging in its ‘Plan for Brexit’ that it will negotiate ‘a sensible deal within three months of being elected’. More dramatically, it also claims it will hold a further Brexit referendum within six months of the election ie sometime in May 2020.
On the first pledge to renegotiate a ‘deal’, this will focus on a new customs union, a close relationship with the Single Market and ‘guarantees of rights and protections’.
What is noteworthy is that these all relate not to the Withdrawal Agreement but to the future relationship which will be negotiated once the UK leaves the EU. These are the sorts of things that have been discussed in the context of the non-binding Political Declaration that will set the framework for those future negotiations.
The EU could be open to that discussion as long as it does not transgress the stipulation laid down in the latest Article 50 extension decision that the EU will not renegotiate the Withdrawal Agreement during the extension period. The problem for the Labour leadership, however, is that means being unable to reopen the Withdrawal Agreement during the period of the current extension.
We have been here before, however, and the second extension decision which kept the UK in the EU to 31 October also contained the same stipulation that the:
‘extension excludes any re-opening of the Withdrawal Agreement’.
Yet following a change in Government in the UK and Boris Johnson’s insistence that the text of the Agreement as it stood would not be passed by the UK House of Commons did lead to a revised agreement being reached during the period of the extension. Nonetheless, the EU might be more insistent on the non-negotiability of its second Withdrawal Agreement especially if it will be asked for a further extension to facilitate another Brexit referendum.
The second claim by Labour in its election pitch is that within six months of being elected it will hold a further referendum. This is more problematic.
As I have explained before, the barriers to a further referendum are numerous, but one of the most obvious ones is time itself. There will need to be time to legislate for a referendum; they don’t just happen. The referendum legislation for the 2016 referendum took seven months to pass. In a further referendum, the issue may be more complicated if moves are made to give voters a wider range of choices than between a Remain option and that of Leaving on a Labour-negotiated deal. Complaints that the referendum would not offer electors either a No Deal option or the choice to approve the Johnson vision of Brexit could both bog down the legislative process and raise issues as to the legitimacy of the referendum. At the limit, voters could be urged to boycott a referendum if it was considered to have rigged the available options.
The question to be put in the referendum would also need to be road-tested by the Electoral Commission. If there was agreement on the structure of the options to be presented to voters that could be done in parallel if the referendum bill also empowered ministers to insert or change the referendum question via statutory instrument. But if there is dispute over how to present the options, then the Electoral Commission might need to wait until a decision was finally taken before then turning to the specific wording of the question.
Even assuming all that could be expedited, far more challenging is the Electoral Commission’s previous best practice approach which anticipates that referendum legislation should be fully in place six month before it is implemented. Note this is before any referendum campaign gets underway. That would see a referendum then being held more than a year after a December 2019 election.
One reason why this six-month gap between completing the legislative process and its implementation might be particularly necessary would be if the franchise were to be extended to 16 and 17 year olds. Time would be needed to mount a registration campaign to ensure that this new group of electors were informed of their right to vote and duly registered. Back in 2016, the website for registration to vote in the EU referendum crashed forcing an extension to the deadline. In order to avoid a reoccurrence of the problem, the Government would need sufficient time for a public information campaign to highlight eligibility to vote and to maximise voter registration.
A request for a further extension to hold a referendum would clearly be necessary given that the current extension expires on 31 January 2020. Once again, the issue for the EU27 will be whether to grant such an extension and for how long. An extension for a further referendum would be difficult for the EU27 to decline. However, a key difficulty for the EU27 would be what might happen if the UK once again voted to leave the EU.
Even assuming that the UK would be in a position to hold a May 2020 referendum and to implement a result to leave the EU – for the sake of argument on 30 June 2020 – the UK and EU would jointly have to decide by 1 July 2020 whether to extend the transition period scheduled to expire on 31 December 2020. To do otherwise would be to leave the EU and UK less than six months to negotiate, agree and conclude agreements on their future relationship. Given the impossibility of that, the UK and EU would face a new No Deal Brexit deadline of 31 December 2020.
One view might be to offer an Article 50 extension to 30 June 2020 on the assumption that a Leave vote could be implemented smoothly and a transition extension also agreed. Others might, however, wonder whether another referendum might trigger yet more domestic politics that would make it less clear whether the UK could leave and enter into a transition period starting on 1 July.
But given what was said earlier, it simply does not seem likely that a UK referendum could occur that fast leaving the EU27 to decide whether to agree to a longer extension to the end of 2020 or even beyond into 2021. A fourth extension in those terms would, in effect render the transition period extension mechanism meaningless and the Withdrawal Agreement would need to be revised to reconsider how any transition period might actually work and on what timescale.
Labour’s Brexit pitch is clear and it is specific. But another referendum in six months stretches credibility.