If there’s a second referendum on Brexit, what question should be put to voters?

jess_sargent.000alan_renwick.000download.001In the fourth in a series of posts on the mechanics of a possible second referendum on Brexit, Jess Sargeant, Alan Renwick and Meg Russell consider what question should be asked. This would be crucial for any vote to command legitimacy. Various models have been proposed, but some are far more credible than others in the current context.

 

This is the fourth in a series of posts on the possible mechanics of a second referendum on Brexit. Having previously discussed the timetable, and the circumstances in which suca referendum might be called, this post considers what kind of question should be put to voters.

Which options might voters be asked to choose between?

Three main options could be considered for inclusion in any further referendum on Brexit:

  • leave the EU on the terms the government has negotiated
  • leave the EU without a deal
  • remain in the EU

Some might add a fourth option: to reopen negotiations. But any option put to a referendum must satisfy two criteria: it must be feasible, and it must be clear. An option to reopen negotiations would fail on both counts: the EU might well refuse to reopen negotiations; and there would be no certainty as to what the UK might secure from such negotiations. A referendum of this kind could not ‘settle’ the issue of the UK’s relationship with the EU.

What form might the question take?

With three options in play, decisions would need to be taken about which of them should appear on the ballot paper, in what form, and in what combination. Continue reading

Brexit and the territorial constitution: déjà vu all over again?

wincottd (1)Brexit has led to conflict between Westminster and the devolved administrations, with the UK Attorney General recently going as far as referring the Welsh and Scottish Continuity bills to the UK Supreme Court. Here Daniel Wincott argues that the Brexit process has highlighted the flaws in the UK’s systems of intergovernmental relations and that action is needed to prevent repeating the mistakes of the past.

The territorial constitution is particularly fragile. Pursuing Brexit, Theresa May’s government has stumbled into deep questions about devolution. The territorial politics of Brexit is a bewildering mix of ignorance, apparent disdain, confrontation, cooperation and collaboration. Rarely have the so-called devolution ‘settlements’ appeared more unsettled.

The UK’s system for intergovernmental relations (IGR) between devolved and UK governments has been hidden in obscurity. Arcane processes – Legislative Consent Memoranda (LCMs – also known as Sewel Motions) and Joint Ministerial Committees (JMCs) – are now more widely discussed.

Brexit has revealed limits and weaknesses in existing devolution structures. UK intergovernmental relations is an unappetising spaghetti of abstruse acronyms, but compared to other multi-level states it is also remarkably informal and limited. Opportunities to develop the system may emerge, but it could also collapse under the pressure of leaving the EU. Continue reading

How could a second Brexit referendum be triggered?

jess_sargent.000alan_renwick.000download.001With ‘exit day’ less than six months away, public debate about a second Brexit vote continues. In the third of a series of posts on this topic, Jess Sargeant, Alan Renwick and Meg Russell outline the key decision points and processes by which MPs or the government might choose to trigger a second referendum

In our previous blogpost we considered how long it would take to hold a second referendum on Brexit, concluding that an extension to Article 50 would almost certainly be required. The length of the necessary extension would depend on when the referendum was triggered. Calling a referendum requires a majority in parliament, and whether such a majority exists will depend on political and circumstantial factors. But by examining the process of Brexit we can identify a number of key junctures at which a decision to hold a referendum could be made.

What steps must take place before the UK leaves the EU?

According to Article 50, an agreement setting out the arrangements for withdrawal, taking account of the UK’s future relationship with the EU, should be concluded within two years. If no such agreement is ratified before 29 March 2019, the UK will leave with no deal, unless the Article 50 period is extended. For the UK to ratify the deal, three parliamentary steps must first be completed:

  1. Parliament must approve the deal. The EU (Withdrawal) Act 2018 requires the House of Commons to pass a motion, often referred to as the ‘meaningful vote’, approving the withdrawal agreement and the framework for the future relationship. This motion is expected to be amendable.

    • If the motion is passed, the government can proceed to the next step.

    • If the motion is not passed, the government must then set out how it intends to proceed. The Commons is then due to consider the plan through a motion in ‘neutral terms’, which may well not be amendable.

  2. The European Union (Withdrawal Agreement) Bill must be passed. The government will need to pass primary legislation to give the withdrawal agreement domestic effect. The government cannot ratify the deal until this is done.

  3. The Constitutional Reform and Governance Act 2010 (CraG) procedure. The withdrawal agreement will also be subject to the usual procedure applied to treaties, which can happen concurrently with the steps above. The government must lay the treaty before parliament, which then has 21 days to object to ratification. If the Commons objects it can delay ratification indefinitely.

All of this supposes that a deal is reached. If no withdrawal agreement is reached by 21 January 2019 the government must lay a statement before parliament outlining how it intends to proceed. Then a motion must be considered, again due to be in ‘in neutral terms’ and so probably unamendable.
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The European Union (Withdrawal Agreement) Bill and constitutional impact assessments

NGQojaZG_400x400 (1)At an evidence session with the Minister for the Constiution in March, the Lords’ Constitution Committee discussed introducing constitutional impact assessments for government bills. Here, Jack Simson Caird discusses the potential benefits of such a process on the forthcoming bill legislating for a Withdrawal Agreement, and how it might have affected the passage of the European Union (Withdrawal) Act.

On 24 July 2018, the government published its White Paper Legislating for the Withdrawal Agreement between the United Kingdom and the European Union. In the introduction Dominic Raab, the recently appointed Secretary of State for Exiting the European Union, explained that the White Paper would outline the government’s approach to the European Union (Withdrawal Agreement) Bill (the Withdrawal Agreement Bill), which parliament must pass before exit day to implement the Withdrawal Agreement. Raab explained that the White Paper demonstrated the government’s ongoing commitment to ‘proper parliamentary scrutiny of our exit from the EU’.

Earlier in the year on 14 March 2018, Chloe Smith MP, the Minister for the Constitution, noted in evidence to the House of Lords Constitution Committee, another way in which the government could show such a commitment:

The second point your comment raises is the idea of whether there ought perhaps to be a constitutional impact assessment of every Bill, in the same way as we do an equality impact assessment, an environmental impact assessment or what have you.

This post examines how a constitutional impact assessment might enhance parliamentary scrutiny of the Withdrawal Agreement Bill. In doing so, I look back at the lessons of the scrutiny of the European Union (Withdrawal) Act 2018 (the Withdrawal Act), which received Royal Assent in June 2018, nearly a year after it was introduced to the House of Commons in July 2017. Continue reading

How long would it take to hold a second referendum on Brexit?

jess_sargent.000alan_renwick.000Meg.Russell.000 (1)With exit day less than seven months away, one of the perceived obstacles to a second Brexit referendum is time. Here, in the second in a series of posts on the mechanics of a second referendumJess Sargeant, Alan Renwick and Meg Russell discuss the constraints, concluding a new referendum could be held much more quickly than previous polls but a delay to exit day would most likely still be needed.

In order for a referendum to be held in the UK, various processes must be completed, all of which take time. Many political commentators have dismissed the possibility of a second referendum on Brexit on the basis that there is insufficient time to hold one before the UK leaves the European Union, citing the EU referendum’s 13-month timetable as evidence of its impossibility. By contrast, many proponents of a ‘People’s Vote’ have argued that time is not a problem: earlier this month Vince Cable argued that a referendum could be legislated for ‘in a matter of weeks’.

The reality lies somewhere between these two positions: while the timing is challenging, it does not present an unsurmountable obstacle to a referendum.

What is required for a referendum to be held in the UK?

  • Legislation – Primary legislation is needed to provide the legal basis for the referendum and to specify details that are not in standing legislation, including the referendum question, the franchise, the date of the referendum, and the conduct rules for the poll (although the latter two are often ultimately left to secondary legislation).
  • Question testing – The Electoral Commission has a statutory duty to assess the ‘intelligibility’ of the referendum question, a process that usually takes 12 weeks.
  • Preparation for the poll itself – The Electoral Commission and local officials need time to prepare for administering the poll and regulating campaigners. The Commission recommends that the legislation should be clear at least six months before it is due to be complied with.
  • Regulated referendum period – The UK’s referendum legislation – the Political Parties, Elections and Referendums Act (PPERA) – specifies a minimum 10-week campaign period, during which campaign regulation applies.

Continue reading

The challenges of studying bicameralism and the legislative process: reflections from the Rome workshop ‘Bicameralism and Law-making in the UK and Italy’

u8TSxoiJ_400x400 (1)On 11 and 12 June 2018 the Constitution Unit co-hosted two workshops with Rome LUISS university, the second of which was on ‘Bicameralism and the legislative process in the UK and Italy’. In this post Roberta Damiani summarises some of the themes from the day, and what conclusions can be drawn for those researching the work and influence of parliaments.

Studying the legislative process is not an easy task, and it becomes even more complex when done through the lens of bicameralism. Difficulties include the definitional issue of what constitutes influence on legislation, and the challenges of accurately reconstructing how two chambers of parliament work in practice and interact with each other. In the second day of events organised jointly by the Constitution Unit and LUISS University a well-attended workshop, held on June 12th in the Sala della Lupa in the Italian Chamber of Deputies, explored how to tackle this subject from both a methodological and a substantive point of view. Here I draw on some of the points raised during the workshop, in an attempt to stimulate debate on how to approach such topics in future work.

The comparative literature often attempts to rank national parliaments according to their policy-making powers. Usually, these stop at the formal powers that a legislature has – for instance, to introduce bills and to amend government legislation. Examples are the Parliamentary Powers Index compiled by Fish and Kroenig, and its weighted version proposed by Chernykh, Doyle and Power in 2016. These comparative studies can be very useful to have a broad overview of how formal legislative powers vary from one country to another. However, they also start to highlight some challenges of studying legislatures: when one moves down to the level of the individual country, reconstructing what actually goes on in a certain parliament tends to be much more complicated.
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The executive’s Brexit: the UK Constitution after Miller

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The judgment of the Supreme Court in R (Miller) v Secretary of State for Exiting the European Union required the government to seek parliamentary approval (through legislation) for the triggering of Article 50, which formally started the Brexit process. In this post, Mark Elliott, Jack Williams and Alison Young argue that parliament has failed to capitalise on the court’s decision and that it is the executive, not parliament, that is truly in control of the Brexit process.

Whether you like your Brexit ‘hard’, ‘soft’, or ‘red, white and blue’, one thing is clear – this will be the executive’s Brexit. Despite the Supreme Court decision in Miller handing parliament a golden opportunity to shape Brexit, Theresa May’s government has been in the driving seat, largely unimpeded, ever since the 2016 referendum in favour of leaving the EU. Parliament has consistently been a passenger.

The first pitstop on the executive’s journey to Brexit was the triggering of Article 50. As is by now well known, the government claimed that it already had the power to trigger the process of the UK’s leaving the EU by virtue of its foreign relations prerogative. Indeed, the government’s initial intention was to trigger Article 50 by the end of 2016, necessitating an expedited process in the Miller litigation, leapfrogging the Court of Appeal to ultimately reach the Supreme Court by the end of the year. If one believes that the triggering of Article 50 (in March 2017) was premature, then it is troublesome to imagine what would have happened if, in the absence of the litigation, it had been triggered six months earlier.  

The Supreme Court came down firmly in favour of parliament, ruling that the government would be able to initiate Brexit only if parliament were to empower it to do so, albeit that the UK parliament could lawfully go ahead and authorise the triggering of Article 50 whether the devolved legislatures liked it or not. This was on the basis that the foreign relations prerogative does not extend, by its very nature, to changing or affecting domestic law or rights. At the time, Miller therefore appeared to be of immense political significance because it put parliament so firmly in the Brexit driving seat. However, 18 months on, the picture looks rather different, and the judgment has proven to be far from the final word on the underlying controversies. Continue reading