With ‘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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