There's a democratic case for a second referendum - this is how it can be done

The referendum did not ask the public whether they would choose any concrete alternative over staying in the EU.

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In January 2013, David Cameron committed the Conservative Party to an “in-out” referendum on Europe, a promise that was duly incorporated in the party’s manifesto for the 2015 Election and delivered in the European Union Referendum Act 2015.  The Act passed the Commons with 544 votes to 53 in favour (only the Scottish National Party opposed it).  Parliament had thus determined that Britain’s constitutional settlement with Europe was a question on which it wished to be advised by the British public in a referendum (the outcome is advisory, not legally binding).

The advice the British public – at least the 37 per cent of eligible voters that opted to leave the European Union – gave Parliament on 23 June 2016 was clear.  The political establishment has, for the most part, accepted that it ought to be acted upon. As Theresa May, the leading contender to replace Mr Cameron, put it when opening her leadership campaign: “Brexit means Brexit.”  But, as more than a few Britons were furiously googling the day after the referendum, what exactly does “Brexit” mean?  

The vote is wrongly being treated as a majority vote for the terms of exit that Britain can negotiate with the other 27 member states of the EU, whatever those might be.  But that is not what the Vote Leave campaign offered the public and it is not what the public voted for.  Rather, the public was offered a variety of potential resettlements for Britain’s relationship with the EU, ranging from the "Norway option" (joining the European Economic Area) at one end to falling back on World Trade Organisation rules at the other.  The referendum did not ask them which of these options they favoured.  

More than that, the public was promised a deal that no country has yet secured with Europe, one having all of the advantages of membership of the EU with none of the burdens, as summed up by Boris Johnson’s column just days after the referendum.  The referendum did not ask the public whether they would still choose to leave if this proved impossible.

Where's the concrete alternative?

What the British public has not yet done, or been given the chance to do, is to vote upon a concrete alternative to the status quo.  In 1998, polling analysis shows two-thirds of Australians wanted to become a Republic.  In 1999, they were given their chance.  Australians were not asked “Should Australia become a republic?” Instead, they were asked whether Australia should “alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and Governor-General being replaced by a President appointed by a two-thirds majority of the members of the Commonwealth Parliament”?  The alternative constitutional model was set out in detail in the Constitution Alteration (Establishment of Republic) Act 1999.  The referendum was defeated with 55 per cent of Australians against.  Many no voters wanted to become a republic, but rejected the constitutional changes they were offered because they wanted a directly-elected President rather than one appointed by the Commonwealth Parliament.  Those voters preferred the status quo to the only model that was actually on offer.  Her Majesty remains the Queen of Australia.

In post-Brexit Britain, we do not know whether voters would prefer the status quo to whatever deal is negotiated with the EU under Article 50 of the Treaty on European Union.  If the deal resembles membership of the EEA with no restrictions on freedom of movement and the continued application of most European laws to the UK, many voters may conclude they prefer staying in the EU to keep a seat at the table.  If the deal curbs freedom of movement at the cost of restricted access to the single market for services and the loss of passporting rights for the financial sector, many voters may conclude that the economic cost is simply too great.

If one accepts the democratic logic that required the referendum question to be put to the people in the first place (and we, like many others, have grave misgivings about government by plebiscite), that same logic requires the question of what is to replace EU membership to be put to the vote.  This logic applies even more forcefully if the deal differs markedly from the promises made to voters on 23 June 2016.  Parliament could of course vote on the proposed deal without going to a referendum, but leave voters would presumably consider that illegitimate and it may feed the sense of disillusion that appears to have driven so many to vote to leave in the first place.  Applying its own argument for giving the public a say the first time around, the government could instead give the public a chance to vote on the deal.  To be clear, this would not be a re-run of the vote held on 23 June 2016; rather, it would be a logical next step in giving effect to that vote.  

However, this proposal raises a difficult legal question: how to hold a second referendum consistently with the UK having triggered the Article 50 procedure.  We think that the untested terms of Article 50 itself provide the answer.

The loophole in Article 50

The starting point is that the other member states are refusing to negotiate with the UK unless it triggers Article 50 and, if the UK triggers the Article 50 procedure by notifying the European Council of its intention to leave the EU, there is likely no turning back.  

Article 50(3) contemplates only two possible scenarios once Article 50 is triggered: either the negotiated withdrawal agreement comes into force, or EU membership is automatically terminated after the expiry of a two-year period.  The procedure does not appear to leave room for the unilateral withdrawal of an Article 50 notice (although some commentators have suggested otherwise). Article 50(5) makes it clear that after completing its withdrawal the UK would have to re-apply for membership like any other outsider.

There is, however, another way.  By virtue of Article 50(3), the other members of the European Council can unanimously decide to extend the critical two-year time period, with the UK’s agreement.  Importantly, this provision contains no specific conditions or constraints as to the terms on which that agreement can be made.  Its wording is conveniently malleable.  The terms of Article 50(3) allow the European Council to extend that time period until an alternative deal is negotiated and put to the British people by way of a second referendum.  If the people approve the deal, then the withdrawal agreement is given effect. If, however, their choice is to retain Britain’s EU membership rather than adopt the withdrawal agreement, the European Council can then use Article 50(3) to defer the effects of Article 50 until such time as the UK decides to invoke Article 50 again

There is also no restriction in the terms of Article 50 as to when the European Council can agree to make an extension of time.  So, it would be open to the European Council to agree to extend the time period immediately after the UK triggered the Article 50 procedure, in accordance with a prior in principle agreement between all of the member states to do so.  

How to postpone Brexit

The fly in the ointment is that this will require the unanimous agreement of all member states.  However, the carrot for Europe is the realistic possibility of keeping the UK in the EU and the avoidance of a prolonged period of uncertainty during negotiations under Article 50. Instead, the risks associated with Brexit would be postponed until a second referendum several years hence.  The UK also benefits from taking this course. It would be able to negotiate terms under Article 50 without the risk of being automatically expelled from the EU after two years, a rule that significantly weakens the UK’s hand in any negotiation.  Of course, the EU would have an incentive to give the UK a bad deal, but that is the incentive anyway as the EU rightly fears referendum contagion across Europe if Britain is able to exit painlessly.

On the morning of 24 June 2016, Britain woke up to the realisation that the country’s leaders did not have a plan for what to do next.  The resulting uncertainty promptly upended global markets and the political establishment.  The plan we propose would restore certainty in short order while also respecting the outcome of the referendum.  

We believe the government should, as soon as possible, seek in principle agreement from the other 27 Member States to a referendum on any deal negotiated under Article 50.  The consequences of Brexit would then be immediately and effectively deferred until the second referendum, likely to be held in several years’ time once negotiations under Article 50 have been completed.  The alternative is the chaos and uncertainty of protracted negotiations conducted under the ever-present threat of an unceremonious ejection from Europe if the UK cannot agree suitable terms for withdrawal.  That is in truth not an alternative at all.

Andrew Lodder is a barrister at One Essex Court.  Belinda McRae is a barrister at 20 Essex Street.