Parliament reconvenes on Tuesday following the party conferences, and the big unknown remains how Brexit will be resolved. Talks between the government and EU are intensifying, with pressure to reach a deal by mid-November. But there’s a big question about whether any deal reached will gain parliament’s approval. As Times commentator and Conservative peer Daniel Finkelstein has bluntly put it, in parliament: “There isn’t a majority for anything”.
Recent weeks have seen increasing talk of a possible second referendum as a way out. The Labour Party conference voted to keep this option on the table, and the SNP have said they would support it. But confusion exists regarding key aspects of such a referendum – not least the question and timing. We at the Constitution Unit at University College London have been thinking through these issues, and our final report is published today.
We take no position on whether there should be a further referendum, but instead spell out some essential aspects that politicians need to think through if they want to go ahead. We also summarise the key scenarios under which a referendum could occur. These scenarios are plausible, so even those opposed to a further referendum should focus on how and when one might come about.
Our key conclusions include:
Holding a referendum takes time. Parliament must pass a bill, the Electoral Commission must test the question, and existing legislation specifies a ten-week campaign period before the poll. This makes it almost impossible to hold a referendum before planned exit day on 29 March 2019, and so an extension to the Article 50 period would be required. This should be achievable, but it generates some complications, particularly regarding the European Parliament elections due next May.
Certain question formats would work, and others wouldn’t. Comments from some politicians seem to imply a ‘yes/no’ referendum on the deal, which would be unwise as the meaning of a ‘no’ vote would be so unclear. Others have proposed a two-stage poll, but this is also problematic. Meanwhile a ‘deal’ vs. ‘no deal’ poll is unlikely get through parliament. The three more viable question formats are ‘deal’ vs. ‘remain’, ‘no deal’ vs. ‘remain’ (if no deal is reached) or a three-option poll on ‘deal’ vs. ‘no deal’ vs. ‘remain’. Organising a three-option poll would extend the timetable.
The referendum franchise should be the same as in June 2016, to avoid risks that a changed franchise alters the result. Other aspects of referendum regulation need some updating, particularly around online campaigning.
If a further referendum is held, and particularly if it could potentially result in a ‘remain’ vote, it’s essential that the result is widely seen as legitimate. All the points above are vital for that.
In terms of how a referendum could happen, our report identifies five possible scenarios:
Making parliament’s ‘meaningful vote’ on a deal conditional on a referendum. If a deal is reached, parliament will vote on it shortly afterwards, and the House of Commons’ approval is needed for the government to proceed. MPs could make their approval conditional on a second referendum. This would be would be the quickest route, allowing a referendum as early as May 2019 if using a two-option format. Timetable-wise it is therefore the least problematic route.
EU (Withdrawal Agreement) Bill conditional on referendum. If MPs approve the exit deal in principle without a referendum condition, the Bill to implement it could potentially be used to require a referendum. This would delay matters, particularly if change occurred in the Lords – which would create problems for the European Parliament elections.
Defeat on the ‘meaningful vote’ motion. If MPs reject the deal, this will create an impasse. The government might offer a referendum as a way out, or try to bypass parliament and seek the public’s direct support for the deal. This would allow a poll by June 2019 at the earliest.
No deal reached. If no withdrawal agreement is reached between the UK and the EU, legislation requires MPs to debate the way forward. Parliamentary pressure for a referendum could mount. Indeed the government itself might call one to avoid a ‘no deal’ Brexit
Negotiations continue. Although there’s a strict timetable for resolving the Brexit negotiations, this might still get delayed. Any of the above scenarios could subsequently ensue, but significantly later.
A decision to hold a referendum could happen very quickly, with precious little time to discuss the details. These are complex issues to grapple with, and we hope our report helps politicians think them through.
Professor Meg Russell is Professor of British and Comparative Politics and Director of the Constitution Unit at University College London
Dr Alan Renwick is Associate Professor in British Politics and Deputy Director of the Constitution Unit at University College London