Widespread negative reactions to Theresa May’s Brexit deal have focused increasing attention on a possible further EU referendum. With MPs appearing poised to vote down the Withdrawal Agreement, a referendum could provide a way out of the apparent deadlock. But how would it work in practice? Ahead of the parliamentary debate, Meg Russell and Alan Renwick summarise the conclusions of their recent report on this topic.

When the Constitution Unit published The Mechanics of a Further Referendum on Brexit in October, it was still unclear if the government would successfully reach a deal with the EU, what that deal would contain, or how parliament and the public would react. Now that those facts are known, increasing numbers of MPs are demanding that the Brexit issue be returned to the public in a fresh referendum. But many unanswered questions about the practicalities remain. Here, we offer short responses to the most pressing of those questions, drawn from our report, to inform the parliamentary and growing public debate.

1. Is a referendum possible in the time available?

To hold a referendum, the UK parliament must first pass legislation. Before the bill leaves parliament, the Electoral Commission must assess the ‘intelligibility’ of the wording of the proposed referendum question – which usually takes ten weeks. This limits the ability to pass a bill very rapidly. Once the bill has received royal assent, sufficient time must be set aside to allow the Electoral Commission to designate lead campaigners, and for the campaign to take place.

In total, we estimate that the whole process – from introducing legislation to polling day – could be compressed to around 22 weeks. This is significantly less time than for previous referendums: for example the equivalent gap for the 2016 EU referendum was 13 months. But similar levels of urgency did not apply in these earlier cases.

The timetable could potentially be compressed even further, but doing so would risk delegitimising the result of the referendum – it is important given the sensitivity of the topic that the legislation is seen to be fully scrutinised, the question fair, and the campaigns adequately regulated.

2. Is extending Article 50 feasible?

Though quicker than previous polls, a 22-week timetable would take us beyond 29 March 2019 – the currently scheduled Brexit day. Thus, a further question arises: could this date be moved back?

Postponing withdrawal would require an extension of the two-year window set out in Article 50. In law, such an extension is clearly possible. It would require the unanimous consent of the remaining 27 EU member states, but all the indications are that they would agree it to enable a referendum to take place.

European Parliament elections, scheduled for the end of May 2019, complicate the matter. If the UK has not left the EU by then, it is supposed to take part in those elections. One option would be to delay the elections in the UK until the question of the UK’s future membership has been resolved. But this would cause increasing difficulties the longer the delay went on, particularly as the Parliament must vote on the new President of the Commission by the autumn. With the new Parliament scheduled to sit for the first time on 2 July 2019, a referendum in May or June would minimise disruption.

3. How could a referendum be triggered?

The Prime Minister has repeatedly stated that she will not call a second referendum. However, parliament could force the matter in several ways.

The Commons is scheduled to vote on the negotiated Withdrawal Agreement on 11 December. At this point, MPs could support an amendment to the government’s motion making their approval of the deal conditional on a referendum. But it currently appears more likely that the Commons will simply reject the deal. If this occurs, the government must return to the House of Commons within 3-4 weeks to propose its next steps. In this scenario either government or parliament might reach for a referendum to break the deadlock, in order to put the deal directly to the public for decision. Should Theresa May’s response to an initial Commons defeat be to make a second attempt at getting MPs to agree the deal, the same possibilities will recur – either a referendum amendment could prevail, or a referendum be proposed if the deal goes down to a second defeat. Ultimately, neither the government nor the majority of MPs want a no-deal Brexit. The more likely this begins to look, the more likely it becomes that government and/or parliament will reach for a referendum as a way out.

4. What might the options in a second referendum be?

In its report published in July 2018, the Independent Commission on Referendums emphasised the importance of putting clear and well-developed options to voters. This is crucial to both popular and elite perceptions of legitimacy, which are vital in the context of an already polarised debate.  

There are three options that could plausibly be put to voters: accepting the deal negotiated by the government; leaving the EU without a deal; or remaining in the EU. None of these offers perfect clarity: the ‘no deal’ option is most opaque, while much of what matters in the deal is in the sketchy and non-binding ‘political declaration’. But at least these options provide greater clarity than was offered to voters in 2016. A conceivable fourth option – to return to the negotiations – has been ruled out by senior people on both sides of the formal negotiation process. In addition, such a choice offers no clarity at all, so should not be put in any referendum.

5. What form would the question take?

There are three possible ways to structure the ballot.

The first is a yes/no question on one option – most likely, the government’s deal. But this structure is untenable because both remainers and supporters of a ‘clean’ Brexit would vote to reject the deal, meaning a ‘no’ vote would fail to offer policymakers any clarity about what to do next.

The second approach would pit two of the three options against each other in a binary question. If parliament rejects the deal, then a no-deal vs. remain question is one possibility. However, given the government’s commitment to the deal and most MPs’ abhorrence of the ‘no deal’ option, agreement to such a referendum in parliament seems unlikely. A deal vs. no-deal question is also possible in theory; but it would frustrate remainers and is again unlikely to gain MPs’ approval. A deal vs. remain question is more viable, and combines the two clearest options, but would frustrate those preferring a harder Brexit.

The third approach would be a three-option poll, as proposed by former Cabinet minister Justine Greening. By placing all three options on the ballot paper, it might command more legitimacy and gain wider parliamentary approval. However, given most parliamentarians’ concerns about the risks of ‘no deal’, many would argue against this being put to voters. In addition, such a multi-option question would be unprecedented in the UK. It would hence take longer to organise (perhaps adding around six weeks to the minimum 22-week timetable) as new guidance for electoral administrators, campaigners and voters would need to be developed.

Were a three-option poll chosen, the choice of voting system would be important. First Past the Post risks splitting the vote, resulting in no clear majority. This makes it unsuitable. The Alternative Vote would be better, though it is not without problems of its own, as Albert Weale has explained on our blog.  A two-question format has been suggested by some, including former Attorney General Dominic Grieve and Professor Vernon Bogdanor. But worries about time and voters’ ability to express their true preferences make this unappealing.

There is no perfect system that would allow all voters to express their preferences and guarantees an unambiguous result. Politicians will have to carefully weigh up the advantages and disadvantages of each approach.

6. What further rules would legislation have to set out?

As well as establishing the structure and wording of the question, legislation on a second referendum would have additional issues to clarify.

Some campaigners for a referendum have suggested extending the franchise to 16- and 17-year-olds and EU nationals living in the UK. However, these groups were excluded from voting in the 2016 referendum, and if its result were overturned as a result of a procedural change, this outcome would be unlikely to command legitimacy. Registering new voters would also require additional time in an already tight schedule. Any new referendum should therefore retain the same rules for voter eligibility that applied in 2016.

In contrast, the 2016 poll led to serious concerns being raised about the existing regulatory framework for referendums, and here change would be advisable. In particular, the lack of regulation around digital campaigning would need to be addressed before a second vote. Detailed recommendations were made by the Independent Commission on Referendums.

7. What are the alternatives?

The decision to proceed with a further Brexit referendum is far from straightforward. The questions above concerning the referendum question, the referendum rules and how to navigate the European Parliament elections, would all have to be addressed. On top of this, of course, the whole idea of holding a referendum remains controversial. Opponents say it would be undemocratic, as the public were told that their 2016 referendum decision would be conclusive. While this argument clearly has merit, proponents point out that at the time of the 2016 referendum the form of Brexit was unknown. In making their decisions MPs therefore need to balance two core democratic principles: delivering on past promises, and acting only within the bounds of what voters have consented to.

There are hence both practical and principled impediments to a fresh Brexit referendum. But the alternative roads ahead also look extremely difficult. The Prime Minister’s deal has won few friends, and appears likely to be defeated in the House of Commons. Both she and EU leaders have rejected reopening negotiations, and it is difficult to see what alternative deal (even if it could be agreed within the time available) would command greater parliamentary support. Labour is intent on forcing a vote of no confidence in the government if the deal is voted down; however, this seems unlikely to gain a parliamentary majority. Even if it did, and a general election was forced, a new government might face similar difficulties in negotiating a deal. However, the great majority of MPs want to avoid a ‘no deal’ Brexit. The obstacles to a referendum, while significant, appear no greater than those to any of the other alternatives available.

The Mechanics of a Further Referendum on Brexit, a report published by the Unit in October, offers a more detailed analysis of the points covered in this blog, while a short video featuring the authors is available here. Additionally, a comprehensive discussion of the challenges on referendums in the UK can be found in the report of the Independent Commission on Referendums, published in July 2018.

About the authors

Meg Russell is Director of the Constitution Unit and co-author of The Mechanics of a Further Referendum on Brexit.

Alan Renwick is Deputy Director of the Constitution Unit, co-author of The Mechanics of a Further Referendum on Brexit. He also served as Research Director for the Independent Commission on Referendums.