One of the alternatives to a no-deal Brexit touted by some MPs is to hold a second referendum. But how likely is this, and would it actually be possible?
Here’s the process:
How do you propose a referendum?
Parliament would have to pass legislation to allow a second referendum to take place. This would need to be voted through by both the House of Commons and House of Lords.
There are two ways you can legislate for a referendum. The first is how the original EU referendum took place – through a bill that is solely about the referendum in itself (which, in that case, ended up as the European Union Referendum Act).
The second is how 2011’s AV referendum came into law – via provisions in an Act that was not solely about the referendum (in this example, the referendum on our voting system ended up as part of the Parliamentary Voting System and Constituencies Act).
So theoretically a second referendum on the final deal could be included in the Withdrawal Agreement legislation, if it passed. (Although if it passed, a second referendum to fix the crisis would no longer be necessary.)
And, well, it probably won’t pass – so what happens then?
You’d need a new law. This would include details like the question on the ballot paper, the vote’s date, and what the electorate will be – it could also stipulate that some details (like the date) will be ruled later.
But who would propose this? Theresa May doesn’t want one
Well the government would need to introduce a bill, but there is also a mechanism to trigger a referendum if the government doesn’t want to – either by amending the meaningful vote motion or the Withdrawal and Implementation Bill with a backbench amendment (there aren’t enough MPs supporting a second referendum to do this). If this got through, the government would probably then need to make loads of its own amendments or bring forward a separate piece of legislation that could cover everything you need to legislate for a referendum.
Ok. So what else is involved in the process?
Once the question is laid out in the bill, the Electoral Commission has to carry out a process called “question testing”, which by law means checking the “intelligibility” of the ballot paper question’s wording and reporting back. This usually takes 12 weeks, according to UCL’s Constitution Unit. It then accepts the wording, or suggests different wording, and the bill is amended accordingly.
What would the question even be?
There is no consensus on this, and there are multiple options: leave under Theresa May’s deal, leave with no deal, remain in the EU, or send the government back to the EU to negotiate a different deal.
For the question, you could have deal/no deal, deal/remain, remain/no deal, or more than two options: former Tory cabinet minister Justine Greening has suggested three options: accept a negotiated Brexit deal, stay in the EU, or leave with no deal. The problem with this is that it diminishes the proportion of the electorate who decides the outcome.
This would have to be thrashed out in Parliament, and the Electoral Commission would be consulted on its “intelligibility” as explained above.
Surely that would be difficult to agree on?
Yes, it would be tough. Also, parliament could also decide if it wanted a threshold for the result to count – like a minimum turnout or a supermajority requirement, the voting system used (if numerous options are involved), and to make the result binding or non-binding.
Isn’t that going to take ages to decide?
Probably, all those decisions are highly controversial. The last EU referendum took just under seven months to pass, although that was less urgent and included the summer recess. But that’s not the only thing that would take a long time.
Oh god, what else?
Well, by law there’s a minimum ten-week campaign period, and the Electoral Commission recommends polling day should be at least six months after the legislation has passed. This is just a recommendation, however, and UCL’s Constitution Unit wonks believe other parts of the process could also be condensed – it figures that the minimum time it’d take to sort out a second referendum would be 22 weeks between the decision to hold one and polling day.
But that’s still… too long?
If everyone was agreed on having a second vote, and exactly how to carry it out, then it could go faster – but that’s not a political reality. So the UK would most likely need an extension of Article 50 if it wanted a second referendum, otherwise we’d just leave with no deal on 29 March 2019.
Is that possible?
Yes, legally that’s possible. All the other EU member states would need to agree, which it is thought they would if it’s in order to hold a referendum (rather than just carry on discussions, or drag out the process). But the government would need to propose this, and MPs would have to approve it.
So how likely is a second referendum?
It is technically possible, but political reality means it’s unlikely – there are nowhere near enough MPs who support one. Unless the People’s Vote campaign manages to manoeuvre a second referendum as the only alternative to no deal, and MPs agree to it in desperation as a last resort, then it’s unlikely there will ever be the majority required to pass the legislation, or extend Article 50 to make time for the process.