Countdown to Brexit: 97 days – too little time to hold a Second Referendum

If there is deadlock in Parliament on accepting the Brexit ‘deal’  - a deal that that was jointly negotiated between the UK Government and the European Union and unanimously accepted and endorsed by the leaders of the 28 EU countries - there have been calls from all sides of the political divide and well over half the voting public for a Second Referendum.

But is not now possible to hold a Peoples Vote on, for instance, whether to accept the ‘deal; no-deal; or no Brexit’.

There are established constitutional rules, procedures timescales for holding a referendum – and unless there is an extension of Article 50 beyond 29 March 2019, there is too little time remaining.  An extension would, in any event, have to be requested by the UK Government and agreed by the European Union before the UK exits the EU at 23:00 GMT on Friday in 13 weeks’ time.

This seems unlikely. The Government has steadfastly and continuously rejected all requests to consider a referendum and – even in the event of a General Election - Labour have, today, announced that they would not include holding a second referendum in their manifesto.

Parliament is on its seasonal break and will not resume sitting until 7 January 2019.  They would have needed to make a decision to hold a referendum and passed the enabling legislation before Thursday 4 January, at the latest, in order to allow the regulated 10-week period for the campaign before Brexit. 

Once the UK has left the EU, there is no way to reverse Brexit – it is a third country to the remaining EU27 in the bloc.

 Background

Timing

A report published in October 2018 estimated that it needs 22 weeks between a decision to hold another referendum and polling day.  This is made up of 12 weeks to pass the legislation and prepare for the poll - plus the 10-week regulated period of the campaign.

If there was the political will, it could be possible for Parliament to pass legislation more quickly – however, the regulated campaign period meant this had to be complete before 4 January 2019.  For a referendum to be held at this stage of the Brexit process would require an extension of the Article 50 deadline of 23:00 GMT on Friday 29 March 2019.

Referendums - UK constitutional and regulatory requirements

Parliament would need to pass legislation to allow for the poll to take place.  

A Bill would be required to be debated agreed by both House of Commons and House of Lords – and passed into law as an Act – exactly as happened with the European Union Referendum Act 2015 – the Act that led to the Brexit referendum in June 2016.

This could be an Act that is just about the referendum - or the required provisions could be bundled in an Act that includes other provisions.

For instance, if the deal – comprising the Withdrawal Agreement and Political Declaration - is agreed, it will need to be implemented through the proposed European Union (Withdrawal Agreement) Bill so that it can take effect in UK law.   Provisions could be inserted in the Bill to allow for a referendum to take place to get voters’ consent.

The legislation would need to set out the question to be asked and the eligibility to vote.

How quickly can a referendum be held?

There is no set time as to how long is needed for a Bill to pass through Parliament.  It depends on the length and complexity of the Bill, how many amendments are tabled, whether it has broad cross-party support or whether it is controversial.

Bills can be programmed in the House of Commons if a programme motion is agreed by the House - but there are no equivalent programming provisions in the House of Lords.

What else needs to happen for a referendum to take place?

Question testing

The Electoral Commission has a statutory duty set out in Political Parties, Elections and Referendums Act 2000  (PPERA) to assess any referendum question proposed in legislation for its ‘intelligibility’: are the options clear, simple and neutral?

The way the Commission assesses a question is not set out in legislation.  It can consider the wording ‘in such a manner as they may determine’.

The final decision on the format of the question rests with Parliament.

Designating lead campaign groups

The Commission also has a statutory duty to register referendum campaigners wanting to spend over a specified amount - currently £10,000 - on campaigning during the referendum period.

The Commission is also responsible for designating the lead campaign groups in a referendum.

Preparation for the poll

Detailed conduct rules to allow the referendum to take place need to be made.  For the 2016 referendum the conduct rules were set out in a detailed statutory instrument made under powers granted in the European Union Referendum Act 2015.

The Electoral Commission and local councils also need time to prepare to hold the referendum.  The Commission is responsible for declaring the national result.  Local authority election staff are responsible for ensuring that ballot papers are printed, that there are polling stations and voters are registered.

Regulated referendum period

There is a minimum campaign period for referendums held under the framework set out in PPERA. This must be 10 weeks - and it comprises three stages.

The first four weeks is the period for registered campaigners to apply to be the lead campaign groups.

The next two weeks are the period in which the Commission assesses applications to be lead campaign groups for each possible outcome and designates those groups.

In the final four weeks, the designated lead campaigns can utilise the benefits of designation – which include a grant of up to £600,000 and higher spending limits than other registered campaigners.

Is there time?

UCL’s Constitution Unit published a report in October 2018 which estimated that it would take 22 weeks between the decision to hold another referendum and polling day.  This was made up of 12 weeks to pass the legislation and prepare for the poll and then the 10-week regulated period of the campaign.

Most commentators accept that for a referendum to be held at this stage of the Brexit process would require an extension of the Article 50 deadline of 29 March 2019.

If there was the political will, it could be possible for Parliament to pass legislation more quickly. Given the divisions on Brexit both within parties and Parliament this could prove challenging.

The UCL report points out that any second Brexit referendum would be controversial and there are risks related to the legitimacy on any poll:

There could be dangers for a Bill being rushed through Parliament:

  • “If the referendum result is to be seen as legitimate, and to command widespread public acceptance, it could be damaging for an impression to be created that the bill had been rushed through too quickly.”

  • If the question is perceived to be biased the legitimacy of the referendum could be questioned. Question testing is likely to be more complicated if a multi-option or two stage question rather than a binary two-option question is proposed.

  • There is no consensus about what question should be put to the electorate.  Should the option to remain in the EU be considered?  If three options are considered, then questions arise about how to put those to the electorate: a three-way question or a two stage referendum?  And if it’s a three-way question how do you vote and how are those votes counted?

Would it be final?

Whether or not the final result would be binding on the Government could be set out in the Act enabling the referendum.

Conclusion

If it was the Government’s intention to run the clock down to remove the opportunity for a Peoples’ Vote that may have led to reversing the decision to leave the European Union, they have succeeded.

For some months, Brexit Partners have been forecasting a binary choice between the deal on offer or no-deal.  The risks inherent in a no-deal – labelled by European Commission leaders as the ‘cliff-edge’ scenario, as increasingly accepted as such by analysts - are becoming clear.  And the Government’s intention to drive acceptance of the ‘deal’ – no matter how reluctantly - as the lesser of two evils is also becoming clear.

 
John ShuttleworthComment