What would voters be asked in a second EU referendum – and would they get it?
If – and it’s a big if – the government were to call a second EU referendum, what question would it ask? And would it be able to deliver the answer? In this extract from a new UCL European Institute working paper, Alan Renwick examines the likelihood, terms and outcome of any ‘second round’ vote.
There was talk of a second referendum even before the result of the June referendum was known. In the days immediately following that vote, more than four million people signed a petition favouring a repeat poll. Many signatories cited the close result and the widespread misinformation during the campaign as justifications for their view.
The idea of a straightforward rerun was neither sensible nor feasible. The vote was fought according to the rules set in advance, which included no special threshold requirements and which contained safeguards on the balance of campaigning, but not on its quality. Some of these arrangements were certainly ill-advised, but they cannot be changed after the fact. Most voters consider that the vote has given the government a mandate to initiate Brexit negotiations, and that should be respected.
Much more interesting is the idea that there should be a second referendum that would ask a different question from the first: whether voters accept the Brexit deal once it has been negotiated between the government and other EU member states. This is the official position of the Liberal Democrats and was advocated by Owen Smith during his campaign for the leadership of the Labour Party. Others who say at least that it is an option that should be kept open include former prime ministers John Major and Tony Blair. This is a serious idea: given the considerations noted previously, the democratic case for it is strong.
There are no restrictions in the UK on when parliament can call a referendum or what the subject matter can be. But a referendum can be held only with the approval of parliament: the government cannot initiate such a vote on its own. Any referendum must be authorised in parliament through specific primary legislation.
Four principal questions about a second EU referendum need to be asked. First is the key question of what it would actually be about – we need to know more than that it would be on the terms of the Brexit deal. Second is the equally important question of what the effect of any given outcome in the referendum would be: there is no guarantee that the outcome would always straightforwardly be what is on the ballot paper. Third, we can ask what the likelihood is that a referendum of any given form will actually take place.Finally, we can consider what can be said at present about the likely referendum result.
The subject matter of a second referendum
As just indicated, any second referendum is likely to be on the terms of the Brexit deal that are negotiated over the next few years (though it is not impossible that developments over the coming years might generate conditions favouring another sort of referendum). One option in any such referendum would therefore be to accept the terms of that deal and proceed towards Brexit on that basis.
But what would be the alternative on the ballot paper for voters who dislike the deal? There are three basic options:
- First, voters might be asked whether they want to accept the deal or to remain in the EU after all. In essence, voters would be asked to consider whether, now that the nature of Brexit is clear, they still want it or not.
- Second, voters might be asked whether to accept the deal or to leave the EU without a deal. Article 50, as explained in section 2.1, offers two routes to withdrawal from the EU: either withdrawal terms can be negotiated; or, if no deal is done and the negotiating deadline is not extended, the withdrawing country automatically leaves after two years. The referendum would essentially allow voters to choose which of these routes the UK will take.
- Third, voters might be asked whether to accept the deal on offer or mandate the government to go back to the EU in search of a better deal. The government might be interested in seeking such a referendum if it finds that other EU countries are refusing to concede negotiating terms that the government finds satisfactory.
One possibility is that parliament would set a question that does not make the alternative explicit: it would set a yes/no question where voters are asked to accept the terms of the deal or not accept them. Parliament might take this course in order genuinely to keep its options open in the event that the deal was rejected, or in order to use the uncertainty such a question would generate to drive voters towards accepting the deal on offer. But such a question would rightly be criticised for failing to give voters a clear choice. Referendum questions are assessed by the Electoral Commission, which might well express grave concerns about such vagueness. It is ultimately for parliament to decide whether to accept the Electoral Commission’s advice or not, but it has done so every time the Commission has proposed changes to question wording to date. A government or parliament that went against that advice would not be acting in the interests of effective democracy.
That being the case, it would be necessary to specify one of the alternatives above. But which would it be? It would be almost without precedent for a referendum to be held in which the status quo was not available as an option. (The only referendum I am aware of that broke that rule was a referendum on the electoral system in the Australian Capital Territory in 1992. A new electoral system was adopted in 1989, but there was universal agreement that it was deeply flawed. The referendum therefore gave voters a choice between two possible replacements.) Given that the UK is currently in the EU, that would seem strongly to favour the first option. On the other hand, once Article 50 has been triggered, there is a good case for saying that the course that the country is on is towards Brexit, and that the default – what automatically happens if nothing else is done – is Brexit without a deal. Or it could be said that triggering Article 50 puts the UK in the EU’s departure lounge and that the options should be to stay in that departure lounge, seeking to negotiate a better deal, or to leave the departure lounge (and the EU) with the terms that are on offer. Thus, while a referendum that did not offer the status quo of EU membership as an option would be highly unusual, it could be said to be justified by the equally unusual circumstances created by the Article 50 trigger.
Whatever options might be put on the ballot paper, the next question concerns what would actually happen once any of these options had been voted for: putting an option on the ballot paper does not necessarily mean that it will actually happen in the form suggested by the ballot paper.
The effects of each possible referendum outcome
It appears very likely that a vote for the Brexit deal that has been negotiated would mean that the UK would indeed leave the EU according to the terms of that deal. But questions can be asked about the realisability of any of the alternatives to that option:
- A vote to stay in the EU after all might lead straightforwardly to that outcome if the ECJ has by then ruled that a country can unilaterally revoke its triggering of Article 50. If the ECJ has by then ruled the opposite, staying in the EU would require the unanimous consent of all the member states (which they might be willing to grant only in return for certain concessions). If the ECJ has not yet ruled, then the UK might seek unanimous agreement for its continued EU membership or it might declare its unilateral revocation of the Article 50 trigger and wait to see whether anyone challenged that.
- A vote to reject the deal and withdraw with no deal would certainly be deliverable. The question is whether it would actually be delivered. If ministers had recommended acceptance of the deal, they would presumably resign having lost the vote. It would not be surprising if this forced an early election. Both the Conservative and Labour parties would likely be in turmoil, and it is impossible to predict the public mood. Much would depend on what the deal’s opponents had argued during the referendum campaign: if they had argued for Brexit without a deal, that might well happen; if they had argued, notwithstanding the words on the ballot paper, that rejection of the terms on offer could lead to a better deal (or possibly even continued EU membership), such a revised deal might be pursued – though whether other European governments would play along with this might not be clear. In all likelihood, different campaigners would have argued many different things, so subsequent developments would depend heavily on who managed to win the post-referendum scramble for power.
- If the government has called the referendum in order to seek public rejection of the deal on the table and a mandate for pursuing better terms, it would presumably, if it won that vote, then seek such terms. What would happen then would lie in the hands of other EU governments: they might offer very little else; they might refuse to extend the negotiating time, thereby pushing the UK either into disorderly Brexit without a deal, or into an ignominious climb down and acceptance of the withdrawal terms it has just rejected. This could be avoided, at least for a time, if it has been determined that the UK can unilaterally revoke and then re-invoke the Article 50 trigger. Even this manoeuvre, however, might not yield substantially better terms – and might, indeed, only antagonise the UK’s European neighbours.
Thus, there is much uncertainty as to what would happen in a second referendum if the deal on the table were rejected by voters. Some of that uncertainty might have been cleared up before any such vote could happen: specifically, an ECJ ruling might by then have made it clear that a vote to stay in the EU after all is entirely deliverable. Other sources of uncertainty are likely to remain until after the vote has taken place.
This post represents the views of the author and not Democratic Audit. It is an extract from the UCL European Institute’s working paper The Process of Brexit: What Comes Next?.
Alan Renwick is Deputy Director of the UCL Constitution Unit.
Also by Alan Renwick:
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As a committed leaver, staggered by the comic ineptitude of the Remain Project Fear & Lie campaign last May/June, I think that any ‘second referendum’, however devised and described, would smack of an elite attempt to overturn the June vote.
Second referenda on matters EU have an appalling history in member countries, whereby the pro-EU state and its elite gerrymanders the system for the 2nd running of the race to ensure its victory – the Irish second run of Lisbon was a disgraceful abandonment of fair and free coverage and elections, with new ‘fair media rules’ crafted to ensure that the opposition to Lisbon was silenced – in essence it was stated that as all the politicians were in favour, then broadcast media had no obligation to be objective with coverage of the opposition to it! And of course it was not fair or equal in any way. Imagine night after night on state tv with coverage for Remain and only fitful and sly references to Leave. As the BBC (which receives EU funds) and the rest of the elite are all baying for Remain, this is what would happen if it were allowed.
Anyone with half a wit will understand that the main efforts in the run-up to a second referendum will be to ensure the crucial silencing of opposition by clever adjustments to the rules – I have said this before here: in the 2008 London Mayor election, state radio and tv (the BBC through its shadowy political department which is effectively controlled by parliament even if it affects independence) altered the rules yet again to ensure that I, as an elected member of the London Assembly and prospective Mayoral candidate, would be barred from all tv and most radio during the campaign proper. This issue was whitewashed in 2008, although I placed it on record in several articles and in my submissions to the Committee on Standards in Public Life and it caused embarrassment and awkwardness overseas where I spoke at length on it to party meetings in Canada and the US about funding and fairness… but then became more of an issue in the Uk itself when a 2012 candidate supported by The Guardian newspaper found herself in the same position. And UKIP which was ahead of the Greens in opinion polls for London voting was barred by the BBC yet again while the Greens were given just under 2 million pounds worth of free media by the BBC through its ‘fairness rules’.
Do not imagine for one minute that this would not happen in a referendum re-run – after all “we can’t let these dreadful oiks win again can we?” to quote one Remainer friend…
Thank you for sharing this interesting article. It is also timely. One of the Brexit referendum shortcomings was that it was held without such an analysis of alternatives and their potential impacts, and that is why the (less anticipated by political elite) result caught everyone off guard. The public shall be well prepared for making its choice in two years (and in the course of these two years), whether through or without another referendum. Equally, the supply side (the Government) shall be well equipped to follow a thought-out development path without interruption and further vacillations, whatever the outcome of the talks —deal or no deal. The outcome of the talks is uncertain, but it applies to the two options (remain or leave) to different extent. The terms of a negotiated deal are unclear at this point and they will remain such most of the time and take shape gradually (in big part depending on the social and economic developments in both EU and Britain, but also globally). However, the conditions of leaving the EU without any deal are more predictable. Therefore, the Government shall produce a practicable strategy for a medium-term perspective and start acting upon it. Therein, the scenario of ‘leaving without deal/anyways’ shall be assessed and its impacts communicated to the public—this could help comparing the alternatives (and not only at the end of the two-year period, but all along the negotiation path).
The problem with all this Elbay, is the history of partiality along with flawed, downright dishonest ‘predictions’ by the elite campaigning for a Remain vote – we were told in no uncertain terms by ‘experts’ last May and June that the vote itself would lead to immediate recession “guaranteed in the very first quarter after the vote” (ie end Sept 2016)…no recession though, in the event, as we were promised, just the, er, fastest growing economy in the EU instead. Oh dear, no doubt those experts are very disappointed in how well the economy did when they predicted for their masters doom and gloom – for political reasons. But then they all knew it was rubbish they were spouting anyway – just cynical fear and lies with no back-up to terrify the voter into staying in the EU. Paid experts employed by the state to terrify the voters with their expertise and dragoon us all into line.
No-one will trust the same bag of clowns crashing around on a minefield next time, however supposedly ‘reasonable’ the argument is, and no we do NOT understand even slightly and cannot predict ‘the conditions of leaving the EU without any deal’. Any more than Remain campaigner Theresa May when she backed the Chancellor nine months ago in his comment that a Leave vote on 23rd June would would require ‘the very next day after the vote, the Friday’ a Punishment Budget to attack pensioners and taxpayers with massive hikes. And of course that prediction happened didn’t it…?
The parameters are so great that no second referendum can resolve anything at all except allow the EU fanatical elite to try and gerrymander a second run at it. The EU fanatics need to put their efforts into getting a deal that works and takes any edge off of things they are not keen on…not hope and pray for Gerry Mander and the anti-democracies to ride to the rescue…
I see your point, Damian. I look at the issue from a different perspective. It does not matter whether Britain is in the EU chorus or performs solo. What matters to me (and I believe to the vast majority of ordinary people like me) it is what the British political system and its Government do to ensure that the rights of citizen are respected and protected, and that there are jobs and quality public goods, and there is fair (re)distribution of wealth within the society and between the regions. In other words, it is not the state of being in EU or not being therein what determines the quality of life of Britons but the quality of governance, public policies and services. Therefore, I would urge the Government to focus on delivery of better life to Britons, while negotiating the best possible deal with the EU and the rest of the world. [I offered my thoughts exactly one year ago, in an article on how the decision of such an importance should be prepared and communicated]
But here of course is the problem, Elbay – I believe that “to ensure that the rights of citizen are respected and protected” we cannot do this without leaving the EU – many of my friends would state the exact opposite – alas the EU is the elephant in the room in all things – when Jeremy Corbyn tried to launch the idea of People’s Quantitive Easing, his team were told in no uncertain terms by the EU that it was illegal for any UK government to spend money this way, and would be stopped by the EU in the UK courts. Before dropping the idea, Corbyn’s team tried to suggest that they could get around the Eu rules by ‘a ruse’. The very need to so shows the degree to which Eu rules ramming home austerity control the things you appear to suggest you want to achieve. When governments outside of the euro cannot, within the Eu, spend money to help the people (as they see it and as I assume you might see it) then the EU is not just a minor part of the issue – it is THE issue. Outside of the EU, Corbyn could indeed splurge People’s Quantitive Easing to his heart’s content (I wouldn’t be happy with the policy and oppose it, but would be content that people could vote for it and get it if they felt it right). The idea that I need the Eu to ram home the policies that I prefer and allow for no opposition would be undemocratic (even if I win the day).
Alan Renwick has made a useful contribution in terms of identifying the
FOUR possible outcomes after a deal has been negotiated. However
he has fallen into the trap of assuming that a referendum can be ONLY
of a binary (yes/no) nature.
Firstly we should rid ourselves of the term “second” referendum – as
this encourages comparison with the June 23rd event and they are
very different in their substance. Already we have chosen to explore
terms for departure from the EU. The next referendum would be a
“ratification” event – confirming (or otherwise) that we wish to make
the journey on the terms advertised.
The next referendum needs to present the electors will all four of
the options – and ask them to place them in preference order.
The papers can then be counted on the same lines as an AV
(Alternative Vote) election – with the least favoured option being
eliminated and second/third preferences being used until there
is a majority for one option.
The ballot paper could then be on the lines of:
==
The government has negotiated a draft treaty on the terms of the
possible departure of the UK from the EU. What action should be
taken next?
Please place the following FOUR options in your order of preference
by marking figure “1” against your first or most-preferred option. You
may mark “2” against your second choice and then “3” against your
third choice. Only your first choice will be counted unless that option
does not gain sufficient support to be the majority verdict across the
total electorate of the UK.
The options are:
A – Accept the terms of the draft treaty and leave the EU on that basis.
B- Reject the draft treaty and leave the EU anyway – invoking the
rules set by the WTO (World Treaty Organisation).
C- Request the other 27 members of the EU to extend the period
for negotiation beyond March 2019.
D- Withdraw the “Article-50” notice given in 2017 and remain as a
member of the EU on existing terms.
==
Only by allowing ALL four options can a reasonable result be gained
from the electorate. ANY attempt to mould the question into a binary
format MUST be resisted as it would just foster resentment among
those whose views cannot fit within whatever are selected as the two
options presented to the people.
Clearly any referendum (#EUref2018) must be timed so as to be
capable of implementation before March 2019. Thus all parties
to the negotiations should commit to development of a draft treaty
by early October 2018 and to respect the results of a ratification
referendum in the first half of December 2018.
Alan, to be honest, as most people do not even understand what (for example) the WTO option would involve – MPs of neither side seem unable to grasp it either if you listen to how they describe it – then we have a recipe for chaos and confusion, whatever the intentions. The strong feelings are with those who voted leave, and indeed have been on this matter ever since it attracted little notice 25 years ago and was restricted to a small but ever growing minority. Now those committed to Leave are a very serious number in comparison with those who feel very strongly the other way. The concept that all votes relating to the EU demand that you ‘keep voting until you give us the correct answer’ is now seeped into the consciousness of most committed opponents to the EU – having seen this happening again and again with votes in member states.
A second referendum would take place against a background close to civil unrest, and the accompanying and likely attempt to fix the broadcast media to bar Leave from meaningful coverage is a serious worry, having watched how it has been cleverly done elsewhere and indeed at other UK elections by state radio and tv on behalf of its ultimate masters in parliament. Committed leavers know what ugly distortions of democracy lie ahead with attempts at a second referendum and it will turn UK politics upside down if attempted.
Ha, I meant to say MPs of neither side seem able to grasp it…