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So, now we are staying in the EU – but we have repealed the 1972 Act making EU law relevant to UK law, which means we need parliament to pass a replica of the 1972 Act.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.
Lorenzo Cherin says
Nick , if you want to train as a detective , sure the Met would accept .
Brexit is causing this country and it’s citizens and residents to go nuts…
Paul W says
The key point here, as always, is what the government-drafted referendum question would say.
Surely, it would say someting like this:
“Do you agree that the October 2018 Agreement, commonly known as the Dunkirk Agreement,
[allowing associate membership of specified European Union bodies, agencies, schemes, activities, etc.] as negotiated between the government of the United Kingdom and representatives of the European Union, should be implemented?” Yes No
The question of continued membership of the EU itself would thus be by-passed completely.
However, I don’t really expect things to get as far as a second referendum. And by the way, only an expensive lawyer would argue that *continued* participation in, for example, the European Medicines Agency after Brexit would constitute a fresh *transfer* of power. But there we are.
And by the way, only an expensive lawyer would argue that *continued* participation in, for example, the European Medicines Agency after Brexit would constitute a fresh *transfer* of power
Actually I think it’s a perfectly reasonable argument that having been mandated by the people to leave the EU, the government should therefore have to seek the permission of the people to remain in such bits of it as it thinks best.
Now I’m not saying I agree with that argument, and there are very good arguments against it to do with not excessively binding the hands of Parliament, but it certainly seems arguable that that is within both the letter and more importantly the spirit of the 2011 Act.
Certainly if any UK government were ever to seek to re-join the EU, there would have to be another referendum, I think that’s pretty clear and accepted by everybody except the fanatics?
(What with the devolution referendums, the AV referendum, and now this, we seem to be developing a convention that major constitutional changes to the way UK democracy works require a referendum, which didn’t exist before — the Parliament Acts and the various Representation of the People Acts contained changes which under this new convention would probably have required a referendum — but of course without defining what a ‘significant’ change is, beyond the precedent that anything involving changing the voting system, or sovereignty either of the whole UK or its constituent parts, probably counts prima facie.)
Paul W says
“…we seem to be developing a convention that major constitutional changes to the way UK democracy works require a referendum, which didn’t exist before…”
Agreed. Interestingly, I have yet to see anyone argue that lowering the voting age to 16 for parliamentary elections and, presumably, national referendums, should be subject to approval at a national referendum. I wonder why?
Not for nothing did constitutional theorist A.V. Dicey call the referendum ‘the people’s veto’.
As far as I know the repeal of the 1972 act will only come into effect when Brexit actually happens at the end of March 2019. This would simply be cancelled by a referendum in autumn 2018.
Paul W says
Eh? There would be no reason for the putative referendum to touch directly on the repeal of the European Communities Act 1972 because it would be about authorising Parliament to enter into UK associate membership (or some such) of specified European Union agencies on the basis of a negotiated *new* Agreement. The European Communities Act 1972 would become redundant. Keeping it in place would make nonsense of having a new Agreement.
Yeah, surely the transfer of powers to the EU, and thus the 2011-Act referendum, could only happen after the UK has left the EU? Otherwise there would be no transferring of powers to the EU, as those powers already rest there.
So the new referendum would not have ‘remain in the EU’ as an option, as the whole referendum would be predicated on us already having left. If we haven’t left, then there’s no transfer, so there’s no referendum.
Another way of pointing this out is that the intent of the 2011 Act is clearly that in the event of a ‘No’ vote the powers remain with Britain. The idea of a referendum on transfer of powers where a ‘Yes’ vote means ‘Yes give these powers to the EU’ and a ‘No’ vote means ‘No, don’t leave the EU, so these powers remain with the EU’, so the whole exercise cannot affect the powers which are the ostensible reason for it, is patently ridiculous.
So if there is a referendum under the 2011 Act, then it must be a referendum to decide between whatever deal is negotiated, and ‘no deal’. The possibility of it having a ‘remain’ option simply does not logically exist.
Paul W says
“So if there is a referendum under the 2011 Act, then it must be a referendum to decide between whatever deal is negotiated, and ‘no deal’.”
I agree. A ‘remain’ referendum option is a distinct position from a yes/ no referendum authorising a newly framed, limited UK participation Agreement with the European Union (and on a different basis from hitherto full EU membership).
Paul W says