Another chance - How a second referendum could work
Not in the mood for a deal: The Houses of Parliament in Westminster.
Summary: With the EU/UK Draft Withdrawal Agreement defeated in the House of Commons by a substantially wide margin yesterday and a no-confidence motion unlikely to lead to a general election, the United Kingdom finds itself at an impasse exactly 72 days prior to the 29 March withdrawal date. With No Deal a recipe for disaster and a Norway-style agreement anathema to most passionate Leave supporters, a second referendum is the only solution in town that can provide the legitimacy, fresh mandate and focus needed to make a final settlement acceptable to a broad majority of Britons and truly respect their democratic right to choose their country’s destiny.
In my last post, I outlined the increasingly tough spot the United Kingdom is finding itself in. With the EU/UK Draft Withdrawal Agreement being voted down by Parliament yesterday, this has only gotten worse. As a result, the dreaded “No Deal” Brexit scenario is approaching, unless a solution is found prior to midnight, 30 March 2019 (the day the UK is scheduled to withdraw from the EU – see here for a very detailed briefing by the Research Department of the House of Commons).
The Threat of No Deal
What would No Deal mean. For starters, the cloud of a major recession hangs over the country, with the Bank of England having issued a chilling warning forecasting an 8% cut in the UK’s Gross Domestic Product in the event of a No Deal Brexit. The World Bank’s Global Economic Prospects report for 2019 appears to underline the severe risk the UK economy is running in the event of No Deal, emphasizing that a disorderly exit “could cause significant adverse spillover effects and become a source of financial stability risks in systemically large economies” (page 34). Another report, published by the London School of Economics’ Centre for Economic Performance, foresees similarly severe losses in terms of both GDP and the withdrawal’s impact on public finances. This is echoed by research briefings by the UK Parliament, the International Monetary Fund, the Confederation of British Industry, the Office of Budget Responsibility and the United Kingdom Government itself – the one led by Mrs May’s immediate predecessor, David Cameron, that is.
In the meantime, warnings have been issued concerning the consequences of a No Deal Brexit in areas such as civil aviation     , cancer research    , the supply of medicines     (with the Health Secretary regularly corresponding with the pharmaceutical industry to ensure the stockpiling of a 6-week supply of medicines), the healthcare system, the financial services sector   , agriculture  , universities  and other sectors. Indeed, as if the potential stockpiling of essential medicines was no reminiscent enough of a country transitioning towards a civil emergency, the UK Government has now warned retailers about the need for supplementary security (with some newspapers having published guides regarding food to stockpile) – in the event of panic-buying imminently before the United Kingdom’s scheduled withdrawal on 29 March 2019.
Besides, that does not even begin to cover the existence of the United Kingdom itself: Brexit is making both Scottish independence and Northern Ireland’s long-term shift towards a merger with the Republic of Ireland more likely. Brexit is a mess – and a way forward is needed, now more than ever.
Yesterday, the Draft Withdrawal Agreement suffered a heavy defeat in the House of Commons. Only 202 MPs voted for the deal, but a decisive majority of 432 MPs rejected it. By any standards, this is a humiliating parliamentary defeat and has to nurture doubts about the stability of the United Kingdom Government just 72 days ahead of Brexit. The realistic options, in order of plausibility, include a no-confidence motion and general election; a No Deal Brexit; and a second national referendum. Let’s go through each one.
No-Confidence and General Election
Prime Minister May has been leading a minority government of her Conservative Party since losing her absolute majority in the House of Commons in the 2017 general election. The Conservative Party has an existing confidence-and-supply agreement with the Democratic Unionist Party that only runs candidates in Northern Ireland. The agreement stipulates that the DUP will support the Conservative Party on three issues whenever there is a vote on them in Parliament: votes of no-confidence, the budget and fiscal allocations (“supply”) and Brexit.
Shortly after losing the vote on the Draft Withdrawal Agreement, Prime Minister May called on Mr Corbyn to trigger a no-confidence motion – a request he was all too happy to oblige. The no-confidence vote will take place later today and is widely expected to fail, since both the DUP and the European Research Group (the approximately 80 MPs belonging to the sharply Eurosceptic wing of the Conservative Party) have declared their intention to vote for the Prime Minister. For such a vote to succeed, Mr Corbyn would require a simple majority of MPs present and voting. Considering that Speaker John Bercow and his three deputies do not vote and that the 7 elected MPs for Sinn Féin refuse to take their seats as they would otherwise have to take an oath of allegiance to Queen Elizabeth II, this boils down to a total number of 639 seats – a simple majority being 320 MPs required for a no-confidence motion to succeed. Provided that all Conservative MPs and the DUP stand by Mrs May, she will narrowly survive the no-confidence vote.
This one is fairly simple. According to the European Union (Withdrawal) Act 2018, the United Kingdom will leave the European Union on 29 March 2019, 23:00 (GMT), the moment in which the negotiating period mandated by Article 50 TEU officially expires. If Parliament does nothing or fails to agree on an alternative approach, then the United Kingdom will leave the European Union without any arrangements whatsoever – for all intents and purposes, Britain would become a third country to the European Union, on par with South Africa, Brazil, Equatorial Guinea, or Swaziland. All existing legal, commercial, political, economic and other arrangements made with the UK (in its capacity as an EU Member State) would lapse.
Subject to generous exceptions granted by individual EU Member States, British nationals residing in the EU27 would, in principle, have to apply for visas and work permits (and EU27 nationals would have to do the same in the UK). As already mentioned earlier, the economic consequences of No Deal would be severe. Either way, with the combined Opposition and several Conservative Party MPs virulently opposed to No Deal, this looks like a non-starter that will focus the minds of those favouring some form of close relationship with the EU.
In their different permutations, a Norway-style deal (favoured by a cross-party coalition of Conservative and Labour MPs) looks attractive at first. It would permit the United Kingdom to leave the European Union and re-establish control over areas such as agriculture and fisheries. In the Norway variant, the UK could join the European Economic Area and remain part of the Single Market. In the Swiss variant, the UK could attempt to strike a range of sectoral, customized bilateral deals. The problems with both options are that the UK would still have to accept freedom of movement (likely anathema to the most passionate supporters of the Leave option), still make financial contributions and have no say in the legislation passed.
At this stage, this appears to be the most rational (and increasingly plausible) solution. The United Kingdom Government has made its best possible effort to secure a Withdrawal Agreement that will serve the United Kingdom’s national interest. This has not happened.
Even if we set all these things aside, it has now been two years and seven months since the official result of the 2016 EU membership referendum was declared. The UK has changed prime ministers and is on its third Brexit Secretary. Prime Minister May, despite her best efforts, has evidently not been able to rally a broad national consensus behind her deal. From a1ctivating Article 50 TEU well before the United Kingdom had even agreed the bare minimum of a negotiating strategy, to robbing herself of flexibility by virtue of her Lancaster House speech, to calling a general election in which the electorate rejected her Hard Brexit negotiating approach, to failing to take a cross-party approach to withdrawal, to giving in repeatedly to an assorted band of nationalists and extremists within her own Conservative Party’s hard right, Mrs May has needlessly compounded what was already a difficult situation with a range of strategic errors. Whilst she did indeed return with a withdrawal deal, it has now been consigned to the dustbin. The best efforts of those advocating withdrawal have now been revealed to have been based on wishful thinking untethered from sound judgment.
Despite repeated assertions by ardent Leave campaigners, there is no mandate to execute a sharp break with the European Union. For starters, 52% on a turnout of 72% (in other words, 37.44% of all registered voters) does not constitute such a clear and unambiguous expression of the will of the British people. Besides, 48% of those participating voted to remain in the European Union, with all its membership rights and opt-outs fully intact. Should their wishes not be considered at all in a final withdrawal deal? As already explained in my previous post, the referendum question was vague and did not define what “leaving” meant: Staying in the Single Market? Staying in the Customs Union? (Both of which were floated at various points of the campaign by leading Leave campaigners like Boris Johnson, Daniel Hannan and even Nigel Farage). Withdrawing from one, but not the other? Or full and complete withdrawal? We simply do not know.
Bear in mind that 4.9 million British citizens live outside the United Kingdom and were not permitted to vote in the referendum. Additionally consider that the Electoral Commission itself found that the electoral register in the UK is only accurate to a rate of approximately 91% - in other words, that up to 9% of eligible voters were left off the voting rolls for a range of reasons (including change of residential address), with young voters being particularly affected.
Finally, once we look at the larger picture of devolution, we realize that the 2016 national referendum resulted in one home nation of the United Kingdom, England, pulling the remainder of the country towards the Leave side. Unlike in countries like Switzerland (in its many referendums, whether on EU freedom of movement, UN membership or the famed 1992 EEA referendum), Australia (for the 1999 Republic referendum), Canada (for the 1992 Charlottetown Accord constitutional referendum or the United States, no minimum consent threshold was in place to prevent this scenario for the 2016 referendum – even though such safeguards were floated prior to the 2016 referendum by the Scottish Government.
So, what should the legislation to stage a second referendum look like?
How to make it happen
Parliament will need to pass new legislation to authorize the organization and staging of a second national referendum. This referendum law (the European Union (Confirmation Referendum) Act 2019) can be structurally modelled along the lines of the European Union (Referendum) Act 2015). It should address six challenges inherent in the second referendum.
Challenge 1: Mandate an Article 50 extension and suspension of the EP election in the UK
The first element of the Act would be to mandate Prime Minister May and Her Majesty’s Government to formally request an extension of the negotiation period under Article 50 TEU by 9 months, until 31 December 2019. This will permit enough time for the United Kingdom to prepare for a second national referendum and implement its mandate, regardless of whether it results in a Remain or the renewal of either of the Leave options (with the Withdrawal Agreement, No Deal or a customized withdrawal within the Single Market, Customs Union and/or Euratom). Additionally, the UK Government could also be mandated by Parliament to swiftly enter into talks with the European Council on the suspension of European Parliament elections in the United Kingdom. Having MEPs being elected from the United Kingdom makes no sense until the UK’s final status vis-à-vis Europe has been determined – and would become a distraction during the campaign for a second referendum.
Challenge 2: The Referendum Ballot
Crucially, despite the vociferous claims of extreme Brexiteers, the referendum question on the ballot was inappropriately vague. Unlike in the 1975 Common Market referendum, no reference was made to Prime Minister David Cameron’s renegotiation (which was the initial trigger for calling it) of the UK’s membership of the EU. Instead, the referendum question asked the following: “Should the United Kingdom remain a member of the European Union or leave the European Union”?
This may sound simple, if taken at face value. Besides not even mentioning the renegotiation of the United Kingdom’s membership terms (in February 2016), it also failed to take account of the complexity and range of options of leaving. It is possible to withdraw from the European Union and aspire to remain/leave the Single Market, the Customs Union and the European Atomic Energy Community. Indeed, at various times during the referendum campaign, Brexit advocates sent mixed messages about both the Single Market and the Customs Union – thus, combined with the unnuanced binary choice of “remaining” and “leaving” this could have led a sizable number of voters to vote Leave, believing that the UK Government would negotiate a Norway/Switzerland-style deal with the European Union.
Indeed, a second national referendum would enable a clear choice and a clear set of instructions. As already indicated in my previous blog, a three-question ballot would be the best choice. Question 1 being about May’s deal; Question 2 about remaining in the European Union in the event May’s deal fails to secure a majority; Question 3 about the concrete shape of Brexit if both the Draft Withdrawal Agreement and remaining in the European Union are rejected as options by a majority of voters.
Challenge 3: The Date
Considering the summer holidays in the United Kingdom, as well as a mandatory campaign period and other electoral issues (including the testing of the referendum questions, the printing of ballot papers, designation of official campaigns and the like), the second referendum could realistically take place sometime in September. Helpfully, the European Union is quietly signalling its flexibility on an extension. Considering the UK’s specific situation, legislation could also be passed to suspend the election and seating of any UK Members of the European Parliament. In case the UK decided to remain, the country could go to the polls to elect its MEPs sometime after a second referendum.
Challenge 4: The Franchise
Considering the fact that the country’s withdrawal from the European Union will affect British citizens abroad as well, it would stand to reason that extending the franchise to the overseas citizens would be a rather good idea. Contrary to some suggestions, it would be unwise to extend the right to vote in a national referendum to EU citizens living in the UK. Apart from accusations of foul play that would most certainly be levelled by hard-right Brexiteers, there is (unlike the case of Irish and Commonwealth citizens) no precedent in existing legislation to extend the right to vote to the EU nationals. This is a question for the United Kingdom to decide, in line with its own constitutional arrangements and among its own electorate. Extending the right to vote to 16-and-17-year-olds, as Scotland did during its 2014 independence referendum, also does not appear to be on the cards. In 2017, a year after the 2016 referendum, the Electoral Commission warned that up to 7 million eligible voters were not registered to vote. One option to resolve these issues would be to extend automatic registration in order to ensure that as many people as possible are registered for the second referendum and are able to avail themselves of the opportunity to decide their country’s long-term trajectory.
Challenge 5: Legally Binding Effect
One of the problems with the last referendum was that it was not legally binding and also left the steps to be taken by the UK Government wide open. This mistake should not be repeated this time around. This second national referendum would need to be made legally binding via the referendum legislation. In other words: If the Withdrawal Agreement was passed via a majority on Question 1, then the Government would receive full authority to implement the Withdrawal Agreement; if (upon rejection of Question 1), Question 2 resulted in a majority to Remain, the European Union (Withdrawal) Act 2018 would be completely repealed and the Government mandated to restore the status quo ante by means of a revocation of the Article 50 notification and implementing fast-track legislation amending all legislation to the state prior to 23 June 2016. If the Withdrawal Agreement and the Remain option were rejected, then the Act should mandate the Government to swiftly open negotiations with the European Union on negotiating a customized deal.
Challenge 6: Double Majorities
Ideally, considering the logic behind the United Kingdom being a country of countries, it would also make sense to introduce a federal element to take account of the devolved nature of the UK’s contemporary governance. Given that England’s electorate massively outweighs Scotland, Wales and Northern Ireland combined, it stands to reason that on a decision of such constitutional import, a regional safeguard would be prudent – especially in order to guarantee the legitimacy of constitutional change that the Leave option would trigger.
In Switzerland, whenever a constitutional amendment is put to a federal referendum, its passage not only requires a majority of the electorate across Switzerland, but also a majority of the country’s cantons. In Australia, amendment of the constitution also requires a majority of the country’s states (4 out of 6 states), as well as a popular majority across Australia. A similar rule could be introduced for the second referendum – for one particular option: Since any variety of Leave (whether under Question 1 or Question 3) would effect a radical change of the United Kingdom’s constitutional, political, economic and commercial arrangements, it would stand to reason that these options should require not just a majority of the country, but the support of at least 2 out of 4 countries within the United Kingdom. This would be a smart way of alleviating the concerns of Scotland and Northern Ireland – and blunt the calls for a second independence referendum and a border poll on reunification with the Republic of Ireland, respectively.
These elements of the European Union (Confirmation Referendum) Act 2019 sketched above can only be the start, but such an approach can provide a way out of the current Brexit mess. There are no easy solutions and any option chosen will be divisive and will split passionate advocates of withdrawal from equally passionate proponents of remaining within the European Union. The question is how best to ensure the broadest possible legitimacy for the final outcome – a second national referendum, with its potential to obtain a clear, unambiguous and informed consent from the public, backed up by a firm legislative framework can do just that.
|More blogs on Law Blogs Maastricht|