I’m going to try and keep this as straightforward as I can – but a warning that this gets into heavy constitutional technicalities as a matter of course. That’s where we’ve got to now.
Best for Britain, the Remainer campaign group, is launching a legal challenge against the government with the aim of getting a second referendum on Brexit to occur. In 2011, the Tory-Lib coalition government passed a law called the European Union Act which specified that anything that would result in a transfer of powers from Britain to the EU would require a national referendum. Best for Britain claims that many of the things that May talked about in her Mansion House speech – remaining a member of several European bodies, for instance – should trigger this and thus result in a referendum. They want to put this before the Supreme Court, just as they (successfully) did with the question around whether triggering Article 50 required a vote in parliament.
There are many, many ways this could all go, but let me paint a sort of nightmarish version of it. Say the Supreme Court claims that under the 2011 European Union Act, whatever deal May gets with the EU counts as a trigger for this. Now, all the government has to do is repeal the 2011 European Union Act – which the EU Withdrawal Bill covers in its current form – for this to no longer be relevant. Yet if Adonis lays down his amendment on this and the Lords votes to approve it, and after that either no amount of ping pong works or May finds there is majority for the amendment in the Commons, we could be in a situation in which the Repeal Bill passes without the 2011 EU Act being removed. Meaning, that second referendum is on.
Then, the referendum takes place in late-2018. For the sake of this scenario, say Remain wins. On a brief side note, I have no idea who would win such a referendum. I’m inclined to think Remain would, not out of any Project Fear or pro-EU sentiments amongst the UK electorate, but rather said electorate seem in a mood to cause maximum chaos against whomever is in government, and this would do it. Anyhow, let us also say that the government takes this result as the “will of the people”, asks the EU for a reversal of Article 50 and the EU grants it. These are all massive “ifs” by the way, but stay with me here.
So, now we are staying in the EU – but we have repealed the 1972 Act making EU law relevant to UK law, which means we need parliament to pass a replica of the 1972 Act. Only – this is the good part – to do so would mean we’ve triggered the 2011 European Union Act once more, so we have to have another flipping referendum. Then what happens if that gets voted down? Do we take that as the will of the people and trigger Article 50 again? Do we then end up in the same place over and over again and the remainder of UK history is just an endless cycle of referenda on leaving/staying in the EU that keeps getting conflicting answers?
This is all before we get into how a second referendum would be horrifically divisive and nasty and accelerate the culture war to newly awful heights. At least the first time round – I guess we’d get used to it all eventually.