Stuck in the middle with the EU Referendum?

15 Nov 2018

With the imminent collapse of the Withdrawal Agreement, the clamour for a second EU referendum, a so-called People’s Vote grows unabated. It may be popular, it may even be preferable, but is it practicable?

Pete Bowyer of DRD Partnership investigates…

Stuck in the middle with the EU Referendum?

On Monday evening, amidst the glittering pomp and ceremony of the Lord Mayor’s Banquet at Mansion House, Mrs May confidently told the assembled white ties that we were entering the “endgame” on Brexit. Given the early reaction to the Withdrawal Agreement, she must hope she is not about to be checkmated. The problem the Prime Minister faces is a simultaneous, three dimensional game of chess against two domestic opponents (plus several grandmasters on the continent), and the clock is running down fast.

To the right

To her Eurosceptic right, the resignations this morning of Dominic Raab, Esther McVey and other Ministers has made it abundantly clear that the Withdrawal Agreement will not pass the Commons. It may even spell the imminent end of Mrs May herself. The European Research Group, marshalled by the wily Steve Baker MP, claims to have the support of up to 80 backbench Conservative MPs, ready to vote against the Agreement, if not to force a vote of no confidence in her. Below decks, Boris Johnson has come over all Fletcher Christian-like by raising the stakes further and calling on his former Cabinet colleagues to “mutiny” against Mrs May (and, no doubt, put his dear self in charge of the good ship, Bounty).

To the left

To her Europhile left, the momentum (small ‘m’) for a “People’s Vote” continues to grow, following the 700,000+ “People’s March” last month. Momentum (capital ‘M’) put pressure on the Labour leadership to back a second referendum by publishing a poll of its membership which showed 81% support for a new vote. Centrist former Prime Ministers, Major, Blair and Brown have all lined up in recent days to throw their weight behind the “inevitability” of another referendum, and the dramatic Ministerial resignation last Friday evening of Boris’ younger sibling, Jo Johnson (it obviously runs in the blood), who called the emerging Government policy a “betrayal”, had the whiff of end of days about it.

Overcoming obstacles

Nevertheless, for supporters of a People’s Vote, difficult questions remain. Not least of which is how exactly can this aspiration actually be turned into practical policy, requiring, as it does, primary legislation? There are a number of challenging, if not unsurmountable, hurdles to overcome.

The first, ‘Is Article 50 irrevocable?’ should be the easiest to answer. Back when it was first invoked, in the Spring of 2016, the received wisdom was that once triggered it could not be reversed. That’s largely been put to rest, particularly since the author of Article 50 itself, Lord Kerr of Kinlochard, has stated categorically that:

“It is not irrevocable. You can change your mind while the process is going on. During that period, if a country were to decide actually we don’t want to leave after all, everybody would be very cross about it being a waste of time. They might try to extract a political price but legally they couldn’t insist that you leave.”

Mrs May’s turn

That’s first base. But from here on in things get a whole lot more tricky for proponents of a Second Referendum, now Mrs May has taken the initiative. The Government has always insisted that an exit deal will be reached with the EU as it’s in both parties’ interest to do so.  That confidence appears to have been misplaced since the Withdrawal Agreement has led to Cabinet resignations and it remains unclear whether the Special EU Summit in Brussels scheduled for November 25 will now go ahead. If it does survive, it then goes to Parliament. And, that’s when things will start to get really interesting. Four scenarios appear possible (with our guestimate of likely success) …

Scenario 1 – 10% likelihood

The first scenario is the Government’s preferred route. It requires the Government’s motion on the Withdrawal Agreement to be approved by Parliament, without substantive amendment, at which point it will move towards becoming a Bill which, if it too is not substantively amended, will become an Act of Parliament which, if it is also agreed by all 27 Parliaments of the other Member States (and the European Parliament) will mean the United Kingdom will eventually leave the EU (but only after a transition period of up to a further 21 months, and a Customs Union thereafter until a comprehensive trade deal is agreed). That may seem a torturous route, and with every passing minute it seems ever more precarious – it’s only possible route to survival through the House now is for the Mrs May to get the DUP back on board whilst securing more votes from Labour MPs who supported Remain but represent strong Leave seats than it loses from infuriating its own hardline Brexiteers. That seems extremely unlikely at this vantage point, but if it were to pass there would be no Second Referendum.

Scenario 2 – <1% likelihood

The second scenario involves the Government the Withdrawal Agreement being voted down wholesale in Parliament (very likely) with no alternatives then subsequently agreed ahead of the March 29 exit date (extraordinarily unlikely). This is Hard Brexit territory, and again no second referendum is in sight. Despite vociferous cheerleaders for it on both sides of the House, there is simply nowhere near a majority in the House of Commons as a whole (let alone, in their Lordships’ House) for such a denouement.

Routes to a Second Referendum

Source: UCL Department of Political Science (‘The Mechanics of a Further Referendum on Brexit’)

Scenario 3 – 40% likelihood

It’s the third scenario, a third way if you like, that gives those who are championing a second referendum a glimmer of hope. One route to this endpoint would be amending the Government’s ‘Meaningful Vote’ motion (or the subsequent EU (Withdrawal Agreement) Bill). But this would effectively see a head-to-head vote in the Commons between Second Referendum and the Withdrawal Agreement, and under those conditions the latter is likely to succeed. Another dead-end for the neverendumers.

The alternative route is potentially a more dangerous one, although the ultimate pay-off may make it more appealing. It is to proceed initially down the path outlined in Scenario 2: a substantive motion on the Withdrawal Agreement voted down in the House of Commons. But it does not end there. Instead, the argument goes, Parliament will only see sense and subsequently vote for a Second Referendum when faced with the sole other choice of a Hard Brexit. Under those circumstances, the maths in the House flips in favour of a People’s Vote. Job done.

Scenario 4 – 49% likelihood

Or is it? There’s a potential fly in the ointment. Or rather, “fly i salven” as they say in Oslo. Yes, the fourth and final scenario: the so-called ‘Norway option’, being pushed hard by centrists in the two main parties like Stephen Kinnock MP and Nick Boles MP. Many Remainers in Leave constituencies feel duty bound to respect the result of the 2016 Referendum, but want the softest of all possible Brexits. The UK becoming a Member of the European Economic Area, remaining permanently in the Customs Union and the Single Market, but leaving the institutions of the EU and no longer subject to the jurisdiction of the ECJ, seems to fit the bill: we would Leave politically, but Remain economically. And, in the final judgment, up against a choice of either a Second Referendum or a Hard Brexit, it is thought more likely to garner widespread cross party support.

A long parenthesis

[Incidentally, all the above Scenarios except the first one would almost certainly lead to the fall of Mrs May’s government. Having invested what little is left of her political capital in securing a deal with the EU and having it pass successfully through Parliament, any failure to do so would inevitably spell the end of the Prime Minister. But not necessarily, the end of a Conservative Prime Minister, or indeed a new General Election as the Labour leadership so wistfully hopes. Under the Fixed Term Parliament Act, a two thirds majority is required to dissolve the House of Commons and a force a new General Election. Given the experience of last year, it’s highly unlikely that Conservative MPs would relish a Groundhog Election Day. More likely we would see some form of political realignment, even if temporarily, and the emergence of a government of national (dis)unity.]

The end of the story?

So of all the scenarios, with the exception of a no-hope, Hard Brexit, a Second Referendum appears the longest shot. And even if it did manage to win support in a Parliamentary Vote, the route to a “People’s Vote” is by no means assured. To start with, a referendum requires primary legislation as its legal basis. And that takes time, plenty of it. Before we even get to the Second Referendum itself, the question would have to be agreed and tested (the Electoral Commission estimates 12 weeks to test the ‘intelligibility’ of the question); preparation for the poll itself is needed (the Commission recommends a further six months between the legislation clearing Parliament and the poll taking place); and a minimum 10 week campaign period is specified by the Political Parties, Elections & Referendums Act, the governing statute. Constitutional legal expert, David Allen Green points out that the time taken for between the EU Referendum Act 2015 entering Parliament and the vote actually taking place was 13 months. It’s unlikely to take less a second time around, fuelling potential discord until well into 2020.

Extending Article 50

Time, of course, is one thing we don’t have. Absent of an agreement, we leave the EU on 29 March 2019, less than six months away. So an extension of Article 50 will be required to facilitate a Second referendum. How likely is that? An extension requires approval by all the other 27 EU Member States who must first determine whether there has been a significant shift in British politics since it was first invoked. Constitutional experts agree that an indication to hold another referendum would meet this test.

So that might not be too problematic, except we would then be obliged constitutionally to take part in the next round of MEP Elections – scheduled for next Summer (ironically one of the reasons why the end of March 2019 was given as the original exit date, so we could avoid them) – a colossal waste of time and money if Brexit is then eventually confirmed.

The end?

Mrs May says we’ve entered the endgame. That may be how she wants to see it from No.10. But there remains a lot of road ahead. To quote a former incumbent of the same office, “Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”