4A second referendum
155.It is not Government policy to hold a second referendum. We do not express a view on the arguments for or against holding a second referendum but set out some of the procedural and logistical matters that are relevant to any forthcoming debate.
156.Researchers from the Constitution Unit at UCL produced a report into the mechanics of holding a second referendum322 and suggested that there were several routes whereby a further referendum might happen:
- the House of Commons could make approval of the Withdrawal Agreement subject to a referendum;323
- the legislation implementing the Withdrawal Agreement in domestic law could be amended to require the holding of a referendum;324
- The Government may come under pressure to commit to a referendum following a rejection of the Withdrawal Agreement by the House.
157.According to the Constitution Unit at UCL, several stages are required before a referendum could take place:
- Parliament needs to pass primary legislation to give the referendum a legal basis. The Constitution Unit research said that if it chose to have a second referendum, the Government “would probably prefer to bring forward separate legislation” rather than amend the Bill brought forward to implement the agreement, and risk delaying that Bill;325
- The Electoral Commission has a statutory duty to assess the ‘intelligibility’ of the referendum question, a process that usually takes 12 weeks, and which could be completed during the passage of the legislation. The question for the 2016 referendum was a single question with a binary choice. Testing a question with three possible options is likely to take longer than testing a question with two options;
- The legislation must specify the franchise for the referendum. The franchise for the 2016 EU referendum was those eligible to vote in UK parliamentary elections, plus Gibraltar residents who are eligible to vote in European Parliament elections and members of the House of Lords;326
- The Electoral Commission and local officials need time to prepare for administering the poll and regulating campaigners;327
- The Political Parties, Elections and Referendums Act (PPERA) specifies a minimum 10-week period for the regulated stages of the campaign including the designation of campaign groups.328
The UCL research concluded that a minimum of 22 weeks would be needed to allow for the above requirements to be carried out.329
158.The IFG have said it could possibly be done in 21 weeks.330 It may be possible to reduce this further, but there is a risk that the legitimacy of any such referendum would be questioned if such issues were not given the appropriate amount of scrutiny.331
159.A second referendum is logistically and politically complex, but not out of the question if political will existed in the UK Parliament. It should not necessarily be seen as an alternative to the other options discussed in this report but could be combined with any one of them. Even if there was the political will, however, there would not be time for the UK to hold a referendum before 29 March 2019. If the UK chose to hold another referendum before the UK left the EU, then it would need to make a request to the European Council for an extension to the Article 50 period.
Timetable
Extending Article 50
160.Article 50(3) of the TEU states that:
The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.332
161.Article 50(3) does not specify which party has to propose an extension of the time period, merely that all Member States must agree to an extension.333 Article 50 does not provide a list of circumstances in which an extension would be granted, and it is not guaranteed that the EU would grant an extension if the UK asked for one. As agreeing an extension would require unanimity, it could take time and individual Member States could use it as an opportunity to bargain.334 We discussed how the time period might be extended with our panel on 19 December 2018. Dr Kirsty Hughes said she did not think the EU would grant an extension just because the UK had failed to decide “what sort of Brexit” it wanted. Sam Lowe said the EU would probably agree an extension as long as it led to “a certain outcome”. Henry Newman said that extending Article 50 for further negotiations “is simply not on offer.” There was broad consensus among our witnesses that it is likely that a request for an extension would be agreed for a general election or a referendum, if they could not take place before the end of March.335
162.It is not clear what length of extension might be agreed to by the EU or that would be acceptable to Parliament. The European Parliament will rise on 18 April to hold elections on 23–26 May, and will not sit again till 2 July 2019.336 This could complicate calculations around an extension to hold a referendum beyond the dates of the elections or the first sitting of the new European Parliament; the temporary presence of UK MEPs would have a potentially distorting impact on calculations around the respective weights of the political groups with implications for decisions on the workings of the new Parliament. It would raise questions around how the UK could exercise its rights as a Member State without its own MEPs in the European Parliament.337 However, Jean Claude Piris, former Legal Counsel of the European Council and Director General of the EU Council Legal Services, has suggested that some legal solution could be found to allow the article 50 period to extend beyond 1 July.338
163.Article 50(3) allows for the Treaties to apply in the departing Member State until the date of entry into force of the Withdrawal Agreement. It is possible to change the date on which any Agreement comes into force. This may be appropriate where agreement has been reached on the terms of exit but, for example, the UK had not completed the process for ratification by 29 March or required time for other legislation to be considered. The EU Withdrawal Act specifies that “exit day” will be 29 March 2019 at 11.00 p.m. but allows Ministers to amend this date by regulation.339 This, of course, would only change exit day in domestic law. Changing the date at which the Treaties cease to apply would require both the UK and the EU to agree.340 Professor Barnard thought that any such agreement on changing the date the agreement would come into force would “likely” be by qualified majority voting.341
164.The UK notified the EU on 29 March 2017 that it would leave the EU and, in accordance with Article 50, unless the process is extended or revoked or earlier exit is agreed, the UK will cease to be a Member State of the EU on 29 March 2019.
165.It is possible to extend the Article 50 period beyond 29 March 2019. The UK cannot do this unilaterally but would need to ask the European Council for an extension which could only be agreed by unanimity.
166.There have been indications that the EU27 would look favourably on a request for an extension if it was to allow time for the ratification process to be completed, for a second referendum, or for a general election. The EU27 appear unlikely to look favourably on a request for an extension to allow more time for negotiations, although it has been suggested that there would be a greater chance of allowing some further negotiations on the Political Declaration. If the EU were to agree an extension, it is likely to be time limited rather than open ended.
Revocation of Article 50
167.The Wightman case concerns the UK’s potential ability to revoke its notification of Article 50 of the Treaty on European Union (TEU). The Scottish Inner House of the Court of Session referred a question to the CJEU to ascertain whether unilateral revocation of Article 50 TEU notification was possible, with or without conditions. On 10 December 2018, the CJEU found that where a Member State had notified the European Council of its intention to leave the EU, then that Member State could revoke that notification unilaterally. The revocation would have to be made before any Withdrawal Agreement had entered into force or, if there was no agreement, before the Article 50 negotiating period had expired (including any extension). The decision to revoke notification must follow a democratic process, in accordance with national constitutional requirements, be an unequivocal and unconditional decision, and be in writing to the European Council. The Member State would remain in the EU on unchanged terms.342
168.Professor Barnard explained the implications of two aspects of the ruling. First, that as the ruling in Wightman required an unequivocal and unconditional decision, this made it unlikely to use it to ‘pause’ the process, as “a pause does not seem to be unequivocal or unconditional, because by definition a pause is just that.”343 Furthermore, the judgment of the CJEU said that the unequivocal and unconditional revocation “brings the withdrawal procedure to an end.”344 Others have pointed out that the CJEU appears to balance the risk of flip-flopping between notification and revocation, by requiring a democratic process for both.345
169.Secondly, Professor Barnard expanded on what those national constitutional requirements might be. She said:
The Court of Justice does not specify that. All it requires is that it respects our constitutional requirements [ … ] The choice is either it can be done by an Executive Act or it needs an Act of Parliament. I think it would need to be an Act of Parliament, not just because of Miller but because we know from earlier case law that the prerogative cannot be used to frustrate the will of Parliament as expressed in statute. Statute has actually spoken twice. It spoke first in the notification Act. That is less problematic, because of the rather general way it is drafted. It allows the Prime Minister discretion. She may notify her intention to withdraw. The more problematic one is actually the European Union (Withdrawal) Act 2018, which is much more detailed about us leaving the EU, in particular section 1, which is the termination of the European Communities Act. It probably needs to be done by an Act of Parliament.346
The Minister clarified on 9 January 2018 that it is not Government policy to revoke Article 50.347
170.It is possible for the UK unilaterally to revoke the notification to leave under Article 50. However, in the Wightman judgment, the CJEU said that revocation must be unequivocal and unconditional—it is not a mechanism to buy time—and it brings the withdrawal process to an end. The CJEU also said that the decision to revoke should follow a democratic process and comply with domestic constitutional requirements. The CJEU declined to define what this requires but it is likely that either a resolution of the House of Commons or primary legislation would be sufficient.
322 Constitution Unit, UCL, The mechanics of a further referendum on Brexit, October 2018
323 The Constitution Unit argue that this would only be politically binding. An amendment calling for a referendum was proposed to the motion under Section 13(1)(b) of the European Union (Withdrawal) Act 2018 in December, but the amendment was withdrawn when the debate resumed in January 2019. We note that Parliament would need to pass primary legislation to give a referendum a legal basis.
324 S 13(1)(d) of the European Union (Withdrawal) Act 2018
325 Constitution Unit, UCL, The mechanics of a further referendum on Brexit, October 2018, Page 27. All UK referendums, except the devolution referendums in 1979, have been initiated by the government
326 EU residents in the UK are not able to vote in UK general elections and were not able to vote in the 2016 referendum. The EU Referendum Bill was delayed by ‘ping pong’ between the Commons and the Lords over extending the franchise to those aged 16 and 17.
327 The EU Referendum Bill received Royal Assent on 17 December 2015 for a referendum held on 23 June 2016. The Electoral Commission recommended that legislation should be clear at least six months before it is due to be complied with. The UCL report said “A general election necessitates most of the same tasks as a referendum, and in 2017 such an election was held just over seven weeks after it was announced. This suggests that, if circumstances required it, a poll could be held as little as 10 weeks after legislation had passed.”
328 Constitution Unit, How long would it take to hold a second referendum on Brexit?, Jess Sargeant, Alan Renwick and Meg Russell, 30 August 2018,
329 Constitution Unit, How long would it take to hold a second referendum on Brexit?, Jess Sargeant, Alan Renwick and Meg Russell, 30 August 2018, Table 1
330 Institute for Government, How would a second referendum on Brexit happen? 21 December 2018
331 See Q3514 [Barnard]
332 Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union 2012/C 326/01. The UK notified the European Council by letter on the 29 March 2017 so the default position is that the UK will leave the EU two years later, on the 29 March 2019.
334 Q3484, Qq3520–3521
335 Q3484, Q3521
336 Run-up to European elections: key dates. This will be followed by the process to appoint a new Commission in October.
337 Institute for Government, What would it take for the EU to extend Article 50? 18 January 2019
339 Section 20(1) EU Withdrawal Act 2018 defines exit day as 29 March 2019 at 11.00 p.m. Section 20(4) EU Withdrawal Act 2018 enables a Minister of the Crown to amend the definition of “exit day” by regulation to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the UK. Schedule 7 requires that changing exit day using section 20(4) cannot be done unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
340 See also Robert Craig: Can the Government Use the Royal Prerogative to Extend Article 50? UK Constitutional Law Association, 9 January 2019.
341 Q3484
342 Commons Library briefing paper, Brexit: Article 50 TEU at the CJEU, 10 December 2018
343 Q3484
344 Wightman C621/18, para 74. This has prompted debate as to what would happen in the event of the UK revoking its notification to leave and subsequently continuing the debate on the UK-EU relationship with the possibility of notifying its intention to leave again. For example: Ronan McCrea, Professor of Constitutional and European Law, UCL, The legal issues of revoking the notification to leave the EU – but then notifying to leave again, 20 December 2018; and Phil Syrpis, Professor of EU Law, University of Bristol, The time has come to revoke Article 50, 21 December 2018.
345 Sylvia de Mars, Does Revoking Art 50 Mean Staying… Forever? 11 December 2018
346 Q3531. See also UK Constitutional Law Association, Gavin Phillipson and Alison L. Young: Wightman: What Would Be the UK’s Constitutional Requirements to Revoke Article 50? 10 December 2018;
347 Qq3601–3602
Published: 28 January 2019