The logistics of a second referendum

Support for a second Brexit referendum appears to have risen of late. According to an opinion poll released yesterday supporters of a second referendum outnumber those who oppose it by a margin of 47% to 36%. Many politicians also support this option. As I have pointed out previously, I am by no means persuaded of the merits of a second referendum because it will do nothing to heal the divisions caused by the 2016 plebiscite. In addition it will be used by Brexit supporters as yet another example of how the political establishment conspires to foil the will of the people. Nonetheless, if parliament cannot resolve the current impasse and there is sufficient public support for this option, there is no reason in principle why it should categorically be ruled out.

But the logistics of the second referendum are such that it will be far more difficult to implement than the headlines would have us believe. The Constitution Unit at University College London set out in great detail many of the issues involved, and it is worth looking at this paper for those interested in the detail. With regard to the mechanics of the referendum, the first issue is how quickly it could be done and there are there four stages which will determine the front to back timeline.

In the first stage, parliament must pass primary legislation to provide the legal basis for a referendum covering issues such as the question on the ballot paper, conduct rules for the poll and the date on which the referendum will be held. There is no minimum time for this process but it took around 7 months for the first EU referendum to conclude. The analysts at the Constitution Unit reckon that on the basis of past experience, it may be possible to reduce this period to as little as 11 weeks but this would only be possible if there is cross-party consensus. In the current environment, this is far from the case.

The second stage of the process is question testing, which normally takes 12 weeks but the UCL team suggest that it could be done in 8 if needed. Stage three is preparation for the poll, allowing sufficient time to prepare for the administration of the poll and regulation of referendum campaigners. The Electoral Commission recommends a six month period but on the assumption that the same rules apply as in 2016, the UCL team reckon this could be kept to 1 week. The final stage covers the campaign period itself which must last for a minimum of 10 weeks (no exceptions). The UCL academics reckon that a minimum of 22 weeks are required if everything goes according to plan and if some of the processes are run concurrently.

On that basis, if parliament can agree on the need for a second referendum between now and next Thursday, they just might be able to get it done by 27 June – the last Thursday of the month. If we follow a sequential process, adding up the minimum time periods gives us a total of 30 weeks which takes us into the height of the holiday season in mid-August. The front-to-back timeline for the 2016 referendum was close to a year. In my view, the odds against getting a referendum done in 2019 are quite high.

Obviously, there is no chance of getting any of this done before 29 March. Thus if the UK does want to hold a second referendum it will have to ask for an extension of Article 50. It is generally supposed that the EU will grant the UK an additional three months but this would only take us to end-June, which is not enough time to hold a referendum and deal with the aftermath. An extension beyond this date becomes constitutionally complicated. The European parliamentary elections are held in May and the new parliament will convene on 2 July. However, the UK has not planned to send any MEPs to Brussels on the basis that it will have left the EU by the time the new parliament sits. If Article 50 is extended beyond June the UK will be in breach of its EU obligations if it does not send MEPs to Strasbourg to sit in parliament. A three month extension thus runs the risk of merely postponing the cliff edge until the summer.

However, it transpires that the Electoral Commission has set aside £829,000 for "activities relating to a European Parliamentary election in 2019" which was described as a “precautionary measure.” In other words, in case the UK needs to hold an election of MEPs on 23 May. Just imagine how that will play with the eurosceptics who will probably not bother to turn out to vote. Against that, it may enthuse Remain supporters to turn out in higher numbers than usual.  Whatever the merits of holding European elections, it is the only way that the UK can press for a longer Article 50 period that would allow the possibility of holding a second referendum.

Whilst it is theoretically possible to do this, nothing that we have heard from the political establishment – even prominent supporters of the second referendum – suggests they are even contemplating this option. But if they are serious about the so-called “People’s Vote” they will have to do so. Parliamentary opposition to holding European Parliament elections in the UK will be enormous and I can’t imagine for a moment that the government will support the idea. But this could be one of the next battlegrounds in the Brexit saga, the duration of which will surpass that of the Second World War in 12 days’ time.

Another step closer to the edge

After all the frantic attempts to cut a deal the British parliament finally got down to business by voting on the Withdrawal Agreement drawn up between the UK and EU back in November. And in line with expectations parliament rejected it, but the defeat by 432 votes to 202 – a margin of 230 – was rather more emphatic than many had supposed. This is the biggest defeat that any government has ever suffered on a parliamentary vote; the previous record was the 166 vote margin registered in 1924 (chart). This calls Theresa May’s survival into question and with a vote of no-confidence in the government tabled by the opposition, which will be discussed tomorrow, we are truly in constitutionally deep waters.

In terms of what it means, the margin of defeat for the Withdrawal Agreement was so wide that there is little point in the British government going back to Brussels to try and achieve any concessions. The EU’s view is that parliament rejected the deal so decisively that there is little it can do to improve things for the UK government. Second, the risk of a no-deal Brexit may have actually risen. One of the proposed amendments this evening was one which called for a rejection of the deal but which committed parliament to ensuring that the UK did not leave the EU without some form of safety net in place. This was not called to a vote, presumably because its backer (Jeremy Corbyn) saw a tactical advantage in not doing so. Consequently, the UK finds itself looking over the edge of the cliff with just 75 days until it legally leaves the EU. This position could yet be remedied but it does not feel like a comfortable place to be.

The motion of no-confidence in the government allows all MPs a chance to vote on whether they wish to see the current government remain in office. The outcome is decided on a simple majority: If the government loses the vote, Theresa May will be forced to resign and parliament has 14 days to form a new government which is acceptable to all MPs. If that does not happen, parliament is dissolved and new election must take place. The no-confidence motion will debated in parliament tomorrow with the vote taking place at 1900 GMT. The Democratic Unionist Party, which supports the minority Conservative government, has confirmed that it will vote for the government. Providing that all Conservatives also provide their support, Theresa May is likely to live to fight another day. But a Machiavellian interpretation would be that Tory MPs vote against the current government in order to oust Theresa May and install a candidate who is acceptable to the Tories and DUP, and win on a second vote.

You can see why that might be an attractive option. Theresa May is becoming a serial loser. In times past she would have resigned and many rightly ask whether she can deliver on Brexit. She cannot get her current deal across the line, despite it being the least-worst option in terms of leaving the EU whilst supporting the economy. But she is unable to propose an alternative. Nor has she been willing to countenance postponing or reversing Brexit.

The government now has no choice but to press for an extension of the Article 50 period. If the alternative is a no-deal Brexit, which will certainly worry the EU, this is almost certain to be granted. However, it is only likely to get an additional three months because the new European parliament, which will be elected in May and in which the UK will not be represented, must convene on 2 July. It is difficult to see how the Article 50 period can be extended beyond that for all sorts of constitutional reasons. But what will the UK do with the extra time granted to it?

There appear to be four realistic options: (i) negotiate a more acceptable agreement with the EU27; (ii) a hard Brexit; (iii) call a second EU referendum and (iv) unilaterally withdraw the Article 50 notification, following the ECJ’s ruling last month. The option of a general election is not one which would resolve the Brexit conundrum and would only be a by-product of the current uncertainty, so I do not consider this as a solution.

Option (i) appears increasingly unlikely whilst (ii) is still unpalatable to most MPs (despite what happened tonight). Option (iv) would probably be seen as a betrayal of the democratic process: Even if the referendum in June 2016 was not legally binding, laws subsequently introduced give it much more force. This leaves option (iii) – a second EU referendum. There are many reasons why this is a bad idea: For one thing it will further deepen the many divisions which were laid bare by the June 2016 vote. But if parliament is unable to reach an agreement on how to deliver a Brexit without sending the economy over the cliff, it may have little choice. Parliament has had 30 months to come up with a decision on a question that the electorate was given four months to consider - and it has failed. It is clear that politicians cannot resolve the problem. Maybe it is time to throw it back to test the will of the people.

A rabbit in the headlights

Tomorrow evening the vote is expected to take place which will determine whether the deal which Theresa May’s government negotiated with the EU has been accepted by the British parliament. At this stage the likelihood is that it will be rejected and much ink has been spilled in determining what will happen thereafter. In the event that this is the case, what will matter for the government is the margin of defeat. A narrow margin could mean it comes back in a revised form: A wider one will have bigger ramifications. Whatever happens, the vote will not be the end of the matter – assuming the deal is voted down, it will merely mark the first stage of a process as the government tries to figure out what to do next. At the risk of sounding like a broken record, I maintain that an extension of the Article 50 period remains the best option to give the UK some breathing space and will also ease the pressure on the EU in the face of a no-deal Brexit.

In the event that the cliff edge Brexit is avoided in March, this will be no thanks to the efforts of the British government whose strategy and tactics in the wake of the 2016 EU referendum have been abysmal. Two years ago, Theresa May set out her objectives for leaving the EU in her (in)famous  Lancaster House speech. With hindsight, it increasingly looks like the hollow rhetoric of a leader who has proved unable to deal with the Realpolitik of Brexit – not that I can think of any other currently active politician who could have done a better job. As they say of the manager of the English national football team, the prime minister’s job right now is an impossible one.

Nonetheless, there is a lot in the 2017 speech that looks dated and much that was undeliverable even then. One of the things that jumped out at me was the sentence: “Unlike other European countries, we have no written constitution, but the principle of Parliamentary Sovereignty is the basis of our unwritten constitutional settlement.” It is this lack of any written rules which has made the current parliamentary debate so problematic. It explains why I am unable to give a concrete answer to many of the questions put to me by international investors, who expect the UK government to be following some kind of script (the most frequently asked question is what is the timetable for tomorrow’s process. The truth is there isn’t a fixed agenda: The vote will happen when the debates are finished). The fact that no codified agenda exists has allowed both government and parliament to make up rules as they go along (pace last week’s concerns that the Speaker of the House of Commons was able to intervene in issues of parliamentary procedure).

Perhaps an even bigger irony is that the government has tried to thwart parliamentary sovereignty at every stage. It initially tried to port all EU law into the Great Repeal Bill but was forced by the courts to allow parliament a say in the legislation. In late 2017, the government was forced to give parliament approval of the final terms of the withdrawal deal (the meaningful vote, which takes place tomorrow). It has since had its wings clipped further by MPs who increasingly demand amendments to government legislation. This is a consequence of the fact that the government is weak and rudderless and having lost its parliamentary majority in 2017, it is struggling to stay afloat.

The rest of the speech does not look good in hindsight either. Remember this gem: “we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain”? That would be the same ECJ which will have such an influence over the future relationship between the UK and EU. Or this: “A stronger Britain demands that we … strengthen the precious union between the 4 nations of the United Kingdom … And I hope that same spirit of unity will apply in Northern Ireland in particular over the coming months in the Assembly elections, and the main parties there will work together to re-establish a partnership government as soon as possible?” The devolved Northern Irish Assembly has not convened since 9 January 2017. At  a time when Northern Irish affairs are at the heart of the Brexit problems, the body  responsible for overseeing issues in the province has been conspicuous by its absence (to be fair, the government is not to blame, but the DUP which has “supported” the government since it lost its majority in June 2017 is culpable).

As I pointed out at the time, the Lancaster House speech was nothing more than a wish list. Let’s start with “Brexit must mean control of the number of people who come to Britain from Europe.”  The proposed transition agreement requires the UK to maintain free movement at least until end-2020 and those MPs pushing for a Norway-style agreement with the EU seem blind to the fact that a prerequisite for such an arrangement is acceptance of the four freedoms. The PM went on to demand that “I want us to have reached an agreement about our future partnership by the time the 2-year Article 50 process has concluded.” Not going to happen! The best the UK can hope for is that the status quo is maintained post-29 March. And of course the 2017 speech was famous for the phrase “no deal for Britain is better than a bad deal for Britain.” Never was so much nonsense talked to so many by so few. If no deal is such a great idea why has the government done so much to prevent the UK falling back on WTO rules?

More than anything, May painted so many red lines in the January 2017 speech that it created a number of hostages to fortune. The charitable explanation is that she was unsure of her position at the head of her party and had to throw scraps of red meat in order to keep the Brexit ultras onside. But because she made so many undeliverable promises, from which she was forced to backtrack, May has given the impression that she has been chasing events rather than setting the agenda. If her vote is defeated tomorrow night, it is hard to see where she goes from here. If she fails to deliver Brexit on 29 March, the whole premise of her term in office will be called into question. Even Jose Mourinho’s past record did not prevent him from being sacked as Manchester United manager, and Theresa May’s track record is far less impressive.

Now, right now, is the winter of our discontent

The failure of the political class 

After a relaxing Brexit-free fortnight, UK parliament resumed on Monday and was plunged into a series of constitutional crises related to the apparently never-ending Brexit shenanigans. As one who has followed the twists and turns in this debate from the very start, it is highly frustrating at this point of the proceedings to see that politicians are still treating the most serious economic and political event in British modern history as if it were the subject of an undergraduate debating society.

Just before Christmas The Economist’s Bagehot column published a particularly scathing critique of the UK’s political class. In The Economist’s words “the country’s model of leadership is disintegrating. Britain is governed by a self-involved clique that rewards group membership above competence and self-confidence above expertise.” The article points out that David Cameron “rewarded … pals for losing an unlosable referendum, with peerages [and] knighthoods” whilst the system is “introverted and self-regarding, sending its members straight from university to jobs in the Westminster village.” It goes on to criticise the “new political class [for being ] devoid of self-restraint, precisely because it thinks it owes its position to personal merit rather than the luck of birth.” In another article in the same edition, The Economist calls Theresa May “politically unembarrassable” for remaining in office “despite losing her majority in an election that was considered unlosable.” Jeremy Corbyn, Labour’s leader, “is perhaps more shameless still: in 2016 he refused to budge even after losing a confidence vote among his MPs, on the basis that under Labour’s rules the members pick the leader.” 

Not all politicians deserve to be tarred with the same brush, of course, but when it comes to Brexit too many of them fail to adhere to Mark Twain’s maxim that it is best to keep quiet and be thought a fool than open one’s mouth and remove all doubt.  Take for example the view expressed by the prime minister in December that another referendum “would do irreparable damage to the integrity of our politics.” It will not require another referendum to damage the integrity of the political system: In the minds of many people, MPs are doing a good enough job of that on their own. 

Parliament to the rescue? 

I am not altogether sure whether the Brexit-related events of this week show parliament in a good light or not - only time will tell. To recap, a House of Commons motion was amended by backbench MP (and former Attorney General) Dominic Grieve which will force the government to put forward its Plan B within three days of the Withdrawal Bill being defeated in the parliamentary vote – something which is seen as inevitable next week. Controversy arose because the motion was believed to be unamendable and was only altered thanks to the intervention of the House of Commons Speaker – a move which was deemed unconstitutional by Brexit supporting MPs. But as Grieve pointed out, the previous requirement for the government to present its Plan B 21 days after parliamentary defeat was no longer credible after it wasted four valuable weeks by postponing the vote which should have taken place in December.

There is a huge irony in the complaints of those MPs who deem the actions of the Speaker unconstitutional for he has effectively enhanced parliament’s power over the Brexit process. Those who are serious about taking back control surely have to recognise that parliament is the only sovereign body. Looking back over the past two years, the government’s original plan that only it would manage the Brexit process has been gradually stripped  away piece by piece – recall that in 2016 the government envisaged little role for parliament in the Brexit process which was only reversed following an intervention by the courts.  Of course the full consequences of the Speaker’s decision will only be manifest in the course of time: If a precedent has been set that allows parliamentary motions to be amended in this way, it will reduce the government’s control over the parliamentary process which could have major adverse consequences in future. 

Dealing with the vote 

But that is not a consideration for today. All attention is fixed on next week’s vote on the Withdrawal Agreement which is likely to be rejected – by a substantial margin if current rumours are true. Although the government has not so far countenanced the prospect of defeat, there are signs it is beginning to realise that the game is up. We are thus back to the position of asking what happens next? If Theresa May were not so “politically unembarrassable” she might consider resigning given the extent to which her credibility is bound up in the deal her government has reached with the EU. Somehow I can’t see that happening: The prime minister believes she has a duty to see Brexit through and is too dogged to resign. But a three day window gives the UK too little time to go back to Brussels to try and get some concessions from the EU which will not be granted in any case.

My default position remains that the UK will be forced to extend the Article 50 period. Whilst the EU is likely to grant such a request in order to prevent the chaos that would result from a hard Brexit, it might yet call upon the UK to justify such an action by asking whether it plans a general election or even a second referendum. As abhorrent to the government as the latter option might be, the former is even less palatable since there is a real possibility that the Conservatives’ position would be weakened still further.

To say that the government is between a rock and a hard place is an understatement. I recently came across an article in the Daily Telegraph suggesting that the situation facing Britain 40 years ago during the Winter of Discontent was far worse than the position we find ourselves in today. It isn’t! Like the Conservative government today, the then-Labour government was a prisoner of factions within its own party. But unlike 40 years ago when the Labour Party was fraying at the edges in the same way that the Tories are now, the government was still coherent. It also faced credible political opposition in the form of Margaret Thatcher who took office soon after. The scars of 1978-79 thus healed relatively quickly and although this period gets regurgitated from time to time, most people dismiss it fairly quickly. I fear this will not be the case with Brexit. To quote Shakespeare, “NOW is the winter of our discontent.”