Is a second EU referendum a possibility? Andrew Blick (King’s College London) outlines some of the constitutional issues that would arise should a second referendum take place. Unless these matters are given serious consideration, holding another vote is unlikely to improve matters – and might even aggravate them.
The idea of a second EU referendum of some kind, though highly controversial, is now a prominent part of public debate in the UK. Whatever view one takes of the first vote, it is hard to argue that the UK political system, or indeed the country as a whole, was fully prepared for its consequences. At present, since the government is firmly opposed to a further referendum, the civil service is unable to prepare for the eventuality of a further popular vote. Parliament too, whatever the private views may be of majorities in both Houses, is not seriously examining what it might mean in practice.
Part of the problem is that the debate is a proxy for the continuing division on the fundamental issue of EU membership. Even to countenance the possibility of a further vote (though Nigel Farage seemed recently to entertain this idea) could be depicted as a concession to the ‘remain’ side and its efforts to frustrate the popular will. Yet to rule out another referendum at this point would be as irresponsible as it was to assume that there would be no ‘leave’ majority on 23 June 2016.
It is possible to conceive of circumstances in which the force for a second public vote becomes irresistible. If it does, implementation of this change of course will be far from straightforward. In particular, a series of constitutional issues arise that it is proper to consider.
A first matter is the precise circumstance in which a decision to hold a second referendum could take place. Would it take place before or after a final agreement was arrived at? Perhaps after a breakdown in talks, if one occurs? Might it follow evidence of a decisive swing in public opinion against Brexit, or the particular course that negotiations had taken (perhaps not even leading to a deal), or at least in favour of a second direct consultation with the public? Could some wider public emergency or external event act as a trigger? Might it come through an amendment to a bill secured because of a rebellion in the Commons? Following a defeat for the government in one or both Houses of Parliament in the vote that has been promised on a final deal? Or because a government decided to hold a referendum? Would it accompany the resignation of the Prime Minister, and the forming of another Conservative administration, or one of another party or combination of parties? Might yet another General Election be involved? All of these possibilities would have important implications for the precise context in which the referendum, were it held, took place. They would be crucial to shaping the nature of the decision that the electorate faced.
Second is the precise choice that might be on offer to the public. The possible permutations are numerous. If a binary referendum, would it be between a deal and remaining; or between no-deal (if talks do not succeed) and remaining; or between a deal or exit without a deal? Might one of the options on offer be to return to negotiations, perhaps to seek more palatable terms (or if no agreement had been reached, to give the government a new, more flexible, mandate)? If multiple options were presented to the public – presumably remaining, leaving with a deal, or leaving without a deal, and perhaps returning to negotiations – how would the result be calculated?
Third, attention should be given to who would vote and how the result would be interpreted. What would the franchise be – would it include 16- and 17-year-olds? Or would there be immense pressure to use the same electorate as in 2016? Might there be a supermajority requirement or threshold of some kind? Would there be special consideration given to particular results in England, Northern Ireland, Scotland, and Wales? Again, it might be difficult to justify rules that differed from those applied in the previous vote, particularly if it appeared broadly to be a re-staging of the previous contest, offering a binary ‘remain’ or ‘leave’ option. Furthermore, were a supermajority required, to which option or options would it apply?
Fourth involves the management of the referendum. If the government made a recommendation to vote in a particular direction, how would Civil Service impartiality during the pre-referendum period be enforced? Would an opt-out from collective responsibility for dissenting ministers be available, and if so how would it be managed? When, exactly, would the referendum take place? Given emerging suspicions, still shrouded in uncertainty, about campaign irregularities during the last referendum, how could the authorities, including the Electoral Commission, ensure the integrity of the next contest?
A fifth set of issues relates to the result and its outcome. Would the government possess the necessary legal authority to act upon the vote? Might we anticipate legal complications similar to those that manifested themselves with the Miller case? Would the legislation providing for the vote also seek to make the result legally binding, or would it be technically advisory, as was the previous referendum? If the logic of a result was that the UK should seek to revoke Article 50, would it be able to do so unilaterally? Might an opinion on this subject need to be sought from the Court of Justice of the European Union in advance of a second referendum?
The strict legal issues will not be wholly decisive in themselves. Ultimately, Parliament cannot bind itself and would probably only give the referendum result the force of law if the political environment was judged conducive to the passing of such a provision. After all, in theory, a UK government, backed by Parliament, could reverse the Brexit policy without any further referendum. Yet opponents of leaving do not advocate this course. Their tactical decision to press for a second referendum arises because of a widely held judgement among political protagonists (and seemingly shared by a significant portion of the wider public). They believe that, whether they like it or not, and regardless of its formal status being only advisory, they are obliged to implement the ‘leave’ result.
Clearly, departure from the EU could potentially take place in a range of different ways. One possibility would be to maximise continuity, remaining within one or both of the Single Market (or parts of it) and the Customs Union, but exiting institutions such as the European Parliament, European Commission, European Court of Justice and so on. Some would regard this outcome as a travesty of the referendum result, but it would still arise from a basic desire to be seen to fulfil – albeit in a minimalist sense – the result of June 2016. There remains a powerful political assumption that this referendum overrides any other type of democratic mandate. It is for this reason that supporters of leave are hostile to the idea of a second vote, while advocates of remain see it at present as the only plausible means of achieving their goal (assuming ‘remain’ is on the ballot paper in some way).
To hold a second EU referendum might be seen as a tacit acknowledgement not only that the first has failed to settle the issue of membership, but has created new problems. Given such an assessment of the use of this political mechanism, how can we be sure that a repetition of this exercise will improve matters, rather than making no difference, or perhaps even aggravating the position? If ‘remain’ were not made available as a possibility in a referendum, many would challenge its democratic credibility. Yet if to seek continued membership were offered to voters and won, opponents of this outcome – who (and notwithstanding the recent comments by Nigel Farage) already portray the second referendum idea as improper – might deny the legitimacy of the result, depicting it as the outcome of elite manipulation.
Moreover, as we now know, even if a referendum choice is binary, there are many different kinds of result. Different divisions: between age cohorts, social groups and, perhaps most importantly, territories of the UK, all have an impact on the way in which the overall vote is perceived. So too do the overall margin of victory and the turnout. What would be the response, for instance, if ‘remain’ won by a larger percentage than had ‘leave’ in 2016, but with a smaller absolute vote than either ‘leave’ or ‘remain’ had received on this previous occasion? Any of these variables might have an influence on the potential for a second referendum, not only to reverse (or confirm) the previous vote, but also to provide some kind of political resolution (though the policy complications that will follow in any eventuality would be great). The decisions made in relation to the various constitutional issues raised above, therefore, could matter greatly. It is advisable to begin closely considering the options now.
This post represents the views of the author and not those of the Brexit blog, nor the LSE. It is a shorter version of an article that first appeared on the Constitution Society blog and was previously published at LSE British Politics and Policy.
Andrew Blick is Lecturer in Politics and Contemporary History at King’s College London, and Director of History & Policy.
There will not be a second Referendum. If there were, you can guarantee that the EU would use every foul means possible to make it very difficult and expensive for the UK to leave, in the hope of influencing the electorate to remain. This would be ‘vote rigging’ by any other name and would be supported by all those despicable politicians and ex-politicians – Blair, Brown, Mandelson, Clegg, Clarke, Corbyn, May, Heseltine, Kinnock et al, who see themselves living in a “Post-Democratic Society” where the ‘elite’ are free to ignore the will of the people who pay their salaries & expenses. Many of us know the ultimate aims of the EU, the UN and the NWO. It is NOT a conspiracy theory – it is conspiracy fact (the evidence is overwhelming) and it MUST be stopped in it’s tracks. Much of the damage has already been done and I see Europe as being terminally crippled, but live in hope that the rot can be stopped.
I think your article illustrates, regardless of what side an individual might be on in the Brexit debate, that we are in deep trouble and divisive conflict because of a fundamental failure of government. The government failed in due diligence in calling the referendum because they made no effort to do the policy research necessary to allow them to go into the referendum process with any knowledge of the possible consequences of their proposals. Many allege that calling the referendum was just an attempt to resolve an internal party infighting, and as such the executive may have thought it unnecessary and inappropriate to get advice and commission research, but the implications have been more substantial than almost any government policy in living memory. This government seems to have a culture where radical political theorists at privately funded think tanks are preferred and the system of impartial civil service advice (which is specifically restricted to advice on implications and consequences, not the substance of policy) is derided. One necessary but ignored requirement of government is competence, that the executive is aware, to the best level of prediction, what consequences an action may have.
Holding a new and different referendum intended to correct that failure of government by ensuring that the government has sufficient information to frame a meaningful question to the population is essential for any genuinely democratic process. Doing the political equivalent of holding your hands behind your back and asking people to guess which hand is holding a one pound coin has nothing to do with democracy. Even less so when even the executive that proposed the vote did not have any better idea of the answer to the question than the public, thus making good political judgement impossible.
There are no constitutional implications of a government seeking a mandate to change a failing policy. The actions of one government at one time cannot bind that government in the future or other governments in the future or else policy changes within or between governments would be impossible. Regardless of the preferred outcome of individuals, the suggestion that a second referendum would just be a “re-run” of the first is just an ad-hominem argument from Brexiteers wishing imply that the call for a second referendum is a motivated by a dishonest attempt to undermine the first referendum vote, rather than an honest attempt to give voters a meaningful choice on a crucial change based on a sufficient degree of information. Had the government done its initial research and thought the matter through in the first place, a two stage process, firstly seeking a mandate to negotiate and then a mandate for ratification when the implications were better understood by the public, would have been a much more responsible and competent proposal.
” – the call for a second referendum is a motivated by a dishonest attempt to undermine the first referendum vote, rather than an honest attempt to give voters a meaningful choice on a crucial change based on a sufficient degree of information.”
No, it isn’t. We knew what we were voting for the first time round and it’s not about MONEY. I don’t care if the EU offers to PAY UK £8.5 billion net per annum – I would still vote OUT. You have got to understand that not everyone is motivated by money. There are far more important factors involved. Is that so difficult to understand? All other arguments are irrelevant.
Some people might find it confusing that you quoted a fragment of a sentence that, read on its own, reverses the meaning of what I was saying (and of what you disagreed with).
I may have referred to “a pound coin” but I was not implying that money should be the primary motivation, just that guessing or gambling on what consequences and implications leaving might have is not a good basis on which to make an important decision., Money can be very important to people if they do not have enough to buy food, pay bills or keep a roof over their head, but priorities vary between individuals, people have different life circumstances to cope with.
Could you say what the “far more important factors” are? Your reasons and certainties might not have been shared by everyone who voted to leave. It seems to me that the motivations and attitudes on both sides were very complex, sometimes contradictory.
Even though the implications of Brexit have been disastrous so far, with regards to the economy and the state of uncertainty in the UK, a second referendum would be very problematic as Brexit was a result of a popular vote by the people. A second referendum would undermine the UK’s democratic legitimacy as the voters’ rights should be respected. Should a second referendum take place, there would be a great risk of what is known as a neverendum which was the term used in Canada in reference to the many referendums on the independence of Quebec. This would ultimately lead to further divisions within the UK and prolong political uncertainty.
Of course the electorate is entitled to change its mind, but there is a trade-off here between democratic accountability and practicality. Otherwise there should be general elections every 6 months (or even more often). In this case, the article above illustrates many of the practical issues that would arise from repeated referenda.
The 350m claim on the Vote Leave bus was certainly a lie, and a disgrace to British politics. However, if lies were always to invalidate democratic votes democracy would be impossible.
Despite the devastating results of the Brexit referendum both socially and economically, a second referendum could be equally devastating. On the 23rd of June 2016, the British public voted to leave the European Union in a democratic fashion. A second referendum would undermine the legitimacy of democracy in the UK as the voters’ wishes would not be respected. Furthermore, it could lead to a “neverendum” which was a term coined in Canada referring to the many referendums over the independence of Quebec which is still part of Canada. Hence, this could ultimately be a very timely process which would lead to further confusion between the British public where more unity between the people and political parties is needed in order for the economy and political process to run smoothly.
I am somewhat confused by this careful analysis of referendum choices. Not because of the choices available, but of the purpose for another referendum. Surely, the UK has now reached the stage when it no longer has any choices left. It is leaving the EU, regardless of any referendum it might design. It is leaving at the end of March next year. How it leaves has yet to be decided, but no internal wrangling within the UK is going to have any impact on this. There seems to be a dreadful introspection in the UK about all this. You have made your choice. You now have to live with the consequences. You can have as many referendums as you like (or none at all) but it won’t make a jot of difference.
For a bit of balance, I would suggest reading Wolfgang Streeck’s book on capitalism, “How will capitalism end?”. It gives a perspective to the EU and the related issues of money and power which people objecting to Brexit and wishing for another referendum may find enlightening. The people who feel they have lost the referendum and are dead-set to stop Brexit from happening scarcely know what they are about. They are being used in a divide-and-rule political game to further destroy the nation-states in the western democracies. In this particular instance, it is the nations-state that is the UK that is at stake. If another referendum were to eventuate any time soon, it would be a farce from the start because the remainers never accepted the verdict of the first. Hence, it would be a poisonous exercise and if Leave were to lose that contest they who voted
Leave would be under no obligation to accept the result. The oft-mentioned complaint by remainders that lies were told is pathetic in the extreme. The barrage of lies from the government, the EU and various powerful entities to favour Remain, as ineffective as it was, was far greater. However, I cannot imagine that Leavers should worry about the outcome of another referendum. The struggle is for social democracy of a kind, where citizens of the nation-state elect representatives to Parliament to run the country for the benefit of the nation, not for the benefit of a clique of elite operators. The EU as is constituted is beyond reach of the demos, the peoples of EU member countries. Its leadership is clearly bent on technocratic dictatorship. Whatever the outcome of Brexit light, the issue remains.
The idea of a 2nd referendum is ultimately very dangerous!
The public are already distrustful of politicians and if they (MPs) dismiss the public’s vote what do they think the reaction will be?
Politics will be a cauldron of confusion. The main parties will be destroyed and lesser left and right parties will come to the fore.
Think of the political stability of a country like Italy, their governments unable to secure enough seats to gain power so re-elections after re-elections.
Some things are bigger than BREXIT.
POLITICAL STABILITY IS IMPERATIVE AT THIS TIME.
The world needs at least one country with a strong stable leadership at a time of world instability.
If there were to be a second referendum, regardless of the result, why would any domestic election have any validity? A precedent would have been set that the result of votes do not count.
If a second referendum was held and the result was to remain, why should that vote be accepted when the first wasn’t?