Five Key Questions About A Further Brexit Referendum

7th November 2019

Proposals for another Brexit referendum will be at the heart of the election campaign and it is therefore important that the viability of politicians' plans are thoroughly tested. Drawing on recent research, Alan Renwick, Meg Russell and Lisa James here set out five key questions. They suggest that Labour's plans for a referendum within six months are challenging, though not necessarily impossible. A poll which pitted Boris Johnson's deal against Remain would be simpler and quicker, avoiding additional negotiation time. This would also have the advantage of enhancing the referendum's legitimacy among Brexit supporters.

The parties are finalising their election manifestos, and several will propose a further referendum on Brexit. These policies will come under close scrutiny during the campaign. This post draws on and updates a detailed report published by the Constitution Unit last year. It sets out the possible routes to a further Brexit referendum, the key choices that would need to be made, and the possible consequences of those choices. It finds that a referendum between Boris Johnson's deal and remaining in the EU would be both the simplest, and the quickest, option.

How would a referendum come about?

The major unknown - and unknowable - factor at this stage is the outcome of the general election. It is impossible to predict post-election parliamentary arithmetic with any confidence, but it will have a material effect on the probability and form of a referendum.

There are three main possibilities. The first is a Conservative majority, under which a referendum is very unlikely to take place. The second is a Conservative minority government, which might accept a confirmatory referendum as the price of passing its Withdrawal Agreement. The third is a Labour-led government: either a majority government, or a minority government supported by smaller pro-referendum parties. Under this scenario, the Labour leadership proposes to negotiate a new deal with the European Union, and to offer a referendum between their deal and Remain.

There are therefore multiple possible scenarios, leading to different referendums. However, the experience of the past three years shows that formal parliamentary arithmetic is only part of the story. Cohesion or division within parties is also critical, as tends to become evident when questions of implementation or detail emerge - Theresa May’s majority of 10 (including her confidence and supply arrangement with the DUP) did not prevent three votes against her deal, by majorities of 230, 149 and 58 respectively. A parliament which had a slender majority for a referendum in principle could hence run into difficult - and time-consuming - disagreements about the form it would take.

What are the key elements of a referendum timetable?

Last year’s report suggested that a referendum would take at least 22 weeks. This may seem long when compared to a general election, but referendums are different: they are fought by campaign groups, not established political parties, and require detailed legislation.

The key stages are as follows:

Legislation. A referendum requires primary legislation. This can on occasion move very quickly; the bill for this election passed both houses of parliament in just two days. But referendum legislation is far more complex, needing to specify the question, the franchise, and other matters: the legislation underpinning the 2016 referendum ran to 67 pages. Giving such legislation proper scrutiny takes time. Our report estimated that it would require at least 11 weeks. Crucially, that includes the time for the next stage, of question testing – which takes place in parallel.

Question testing. Under the Political Parties, Elections and Referendums Act 2000 (PPERA), the Electoral Commission must assess the question’s intelligibility. This happens alongside parliament’s scrutiny of the legislation and normally takes 12 weeks. Our report suggested this could be trimmed to eight weeks given urgency, and it might be possible to squeeze it further still. But to reduce it to a token effort or cut it entirely in a bid for a swifter process, as some have suggested, would be highly undesirable. This protection against manipulative questions was introduced for good reason, and to toss it aside in order to save time would risk delegitimising the vote.

The campaign period. The PPERA specifies a 10 week campaign period, including a six week designation process for ‘lead’ campaigners – a system that helps to focus the campaign and protect balance. Whereas elections are fought between established parties, referendums require the creation of new groups. Neither side is currently close to having an organisation ready to fight a referendum campaign.

In addition, we allow for a week’s buffer between passage of the legislation and the start of the campaign period: in 2011, when legislation for the 2011 referendum ran very late, the Electoral Commission argued strongly that this was necessary to make logistical preparations.

All in all, the process requires around 22 weeks (i.e. five months): 11 weeks for legislation and question testing, a week’s buffer, and the ten-week campaign period. The biggest uncertainty is the timing of legislation, which depends on the ability to maintain a stable parliamentary majority.

Labour proposes in its Plan for Brexit to introduce a further stage into the process: it would renegotiate the Brexit deal within three months of the election before holding a referendum within six. A six month schedule is superficially consistent with what we have set out. But, while Labour says it would introduce legislation immediately, it would be difficult to finalise, or even test, the referendum question (which must appear in the bill) until the deal was in place. A referendum on a new deal could thus make Labour’s six month timetable challenging – unless a new deal was agreed very quickly. This would of course not be a factor were the referendum to be held on an existing deal. If moving speedily to a referendum is a priority, there could be advantages in holding the referendum on Johnson’s deal rather than seeking to negotiate a new one.

What options would be on the ballot paper?

The options on the ballot paper are perhaps the most obvious source of possible disagreement about the form of a referendum.

Last year’s report identified three options: leaving the EU with a deal; leaving without a deal; and remaining. It suggested that a referendum might include all three, or a combination of two, and noted that the choice would represent a quandary. On the one hand, most politicians regarded the ‘no deal’ option as unacceptably damaging to the country. On the other hand, with leading Brexiteers presenting Theresa May’s deal as a betrayal, they might have portrayed a ballot offering only that deal alongside Remain as an undemocratic fix.

The situation now is different. Johnson’s deal was backed by every Conservative MP: there is likely to be little parliamentary pressure for putting ‘no deal’ to voters, unless the Brexit Party unexpectedly wins multiple seats. The question, therefore, is probably ‘Deal’ versus ‘Remain’.

As already indicated, different election results could lead to different ‘Deal’ options. Under a Conservative government Johnson’s current deal would presumably remain the only one on the table. Labour, by contrast, proposes to offer its renegotiated deal as the alternative to Remain.

The latter could cause problems: any Labour deal would involve a closer relationship with the EU than Johnson’s (or indeed May’s). It would hence be unacceptable to many Conservative Brexiteers, and raises the same risk as a referendum on May’s deal would have done: namely that some leading Brexiteers would depict the referendum as a sham and call for a boycott. A vote on Johnson’s deal would therefore not only be quicker, but seems less likely to lead to major questions about the representativeness of the ballot paper.

Would the vote be binding?

Many people have been dissatisfied that the 2016 referendum was not legally binding – though politicians have treated it as politically so.

In law, the 2016 referendum could not have been other than advisory: the vote was on the principle of Brexit, not on any worked-up proposal; it was too unspecific to be made legally binding. With a deal in place, a binding referendum becomes a possibility.

There are two legislative routes to a referendum. The first is to pass stand-alone referendum legislation, as for the non-binding 2016 referendum. The second is to provide for a referendum within the legislation implementing a Brexit deal.

The latter is the more plausible route to a referendum under a Conservative government: parliamentarians might agree to pass the Withdrawal Agreement Bill conditional on the inclusion of a confirmatory referendum, with the bill drafted to implement the deal in the event of a vote for it, and to require revocation of Article 50 in the event of a vote for Remain. Were Labour to put its revised deal to a referendum, it might choose to take the same legislative route.

The benefit of this would be clarity and legal certainty. The drawback is that legislation implementing a deal will itself be lengthy and complicated: Johnson’s current Withdrawal Agreement Bill, for example, is 115 pages long and includes a wealth of complex and far-reaching provisions. The length of time legislation takes is clearly dependent on the degree of consensus in parliament, and therefore on the election outcome. However, legislation which sought to implement a deal as well as making provision for a confirmatory referendum (when allowing for the Electoral Commission testing) could well take longer than the 11 weeks suggested in our report.

What would the rules be?

There is near universal agreement – including from the Electoral Commission, the cross-party Commons Public Administration and Constitutional Affairs Committee, last year’s Independent Commission on Referendums (run by the Constitution Unit), and others – that the current referendum rules urgently need updating.

Proposed changes vary in their operational complexity and political contentiousness. Some, such as earlier designation, could not be introduced without lengthening the timetable. However, in the Unit’s report last year we identified key changes that could potentially be included in the referendum legislation without needing to extend the 22 week timetable. For example:

Online campaign materials should be required to show who produced them, as printed materials do.

Campaign finance regulations should be tightened so that information on donations and spending is available earlier and online ad spending can be tracked.

Rules on joint campaigning by multiple groups should be strengthened to stop campaigners from circumventing spending caps by coordinating nominally separate organisations.

The campaign leaflets that are sent at public expense should be prominently labelled as coming from campaigners, not passed off as ‘official information’ as happened in 2016.

Governments should be barred from spending public money on campaigning throughout the campaign period (rather than just in the final four weeks, as now), but the rules should be clarified to ensure that normal government business can continue and neutral information relevant to the campaign can be provided.

Conclusion

A referendum within around six months of the general election is feasible if parties supporting one secure a parliamentary majority. Its result could be made legally as well as politically binding, although this requires more comprehensive legislation which may – depending on parliamentary arithmetic – extend the timetable. There is also an opportunity to sort out some of the worst inadequacies in current referendum rules without significant risk of compromising the timetable.

Labour’s plan to renegotiate the existing deal first could, however, put strain on its proposed six month timetable. Because a Labour deal might not be seen as ‘real’ Brexit by many people, that approach could also risk the legitimacy of the vote. Rather than spending time renegotiating a deal, referendum proponents might therefore usefully consider moving straight to legislation that would make approval of the existing deal conditional on a referendum vote in its favour.

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About the author

Dr Alan Renwick is Deputy Director of the Constitution Unit and the co-author of Doing Democracy Better: How Can Information and Discourse in Election and Referendum Campaigns in the UK Be Improved?.

Professor Meg Russell is Director of the Constitution Unit, and a Senior Fellow at the UK in a Changing Europe studying ‘Brexit, Parliament and the Constitution’. She is also the co-author of Legislation at Westminster: Parliamentary Actors and Influence in the Making of British Law.

Lisa James is a Research Assistant at the Constitution Unit working on the UK In A Changing Europe-funded ‘Brexit, Parliament and the Constitution’ project.

This article is reproduced from The Constitution Unit at

https://constitution-unit.com/2019/11/07/five-key-questions-about-a-further-brexit-referendum/