How did parliament get into this Brexit mess, and how can it get out?

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Some, controversially including the Prime Minister, have accused parliament of failing on Brexit. Last week’s Article 50 extension hands parliament responsibility for solving the crisis. Here, Meg Russell reflects on why parliamentary agreement has thus far been difficult, and what parliament now needs to do.

This week’s Brexit events have been fast moving. Following a series of House of Commons votes on 12–14 March, the Prime Minister travelled to Brussels to negotiate an extension to the Article 50 period. Beforehand she made an extraordinary – and widely criticised – statement to the nation, seeking to lay the blame for the UK’s Brexit impasse at parliament’s door. Following many hours of discussion, the EU27 offered a limited extension: to 22 May if parliament approves the existing Withdrawal Agreement, else to 12 April, before which the UK government should ‘indicate a way forward’ for the EU’s further consideration.

This gives parliament (and specifically the House of Commons) an urgent task of resolving matters, to avoid the UK ‘crashing out’ without a deal in just under three weeks. To date, parliament has been unable to resolve the Brexit dilemma. This post explores why, before turning to what should happen next.

How did we get here?

As explored in a previous post, various factors have combined to make parliament’s Brexit dilemma unique. The most important is the context provided by the June 2016 referendum. By voting for ‘Leave’, the British public issued an instruction to government and parliament, which went against the prior views of most MPs. Politicians pledged to honour the referendum result, but as pointed out by various key actors (including the Commons Public Administration and Constitutional Affairs Committee, chaired by a leading Brexiteer, and the Independent Commission on Referendums), the instruction was far from clear. As we now know, there are many different competing visions of Brexit from which MPs could choose. To complicate matters further, Theresa May’s snap general election of 2017 delivered a hung parliament and minority government, making it far more difficult than usual for parliamentary majorities to form. Continue reading

How long an extension to Article 50 does the UK need?

download.001alan.jfif (1) Despite last-minute additions, Theresa May’s Brexit deal has again been heavily defeated in the Commons. Hence, MPs will need to consider an extension of Article 50. Meg Russell and Alan Renwick argue that for any practical purposes – including renegotiating a deal, or holding a referendum or citizens’ assembly to break the Brexit impasse – the extension previously proposed by the Prime Minister is too short. MPs may now want to press a longer extension on the government.

This week is crunch Brexit decision time for parliament. With the official exit day of 29 March just over a fortnight away, the Prime Minister has been defeated for the second time on her deal, despite some last-minute concessions. She has previously promised MPs further votes on two things: the immediate prospect of a ‘no deal’ exit, or requesting an extension to the Article 50 period. Following tonight’s defeat, MPs will be asked tomorrow whether they wish to exit without a deal on 29 March. If that is defeated, as looks very likely, they will be asked on Thursday whether the Prime Minister should return to Brussels requesting a delay to exit day. Such a decision is at the discretion of the EU27, who must unanimously agree.

The Prime Minister originally proposed that if the Commons supported extending Article 50 she would ask for a ‘short, limited extension’, which should go ‘not beyond the end of June’. But while this might buy the UK time, and avoid the immediate risk of a ‘no deal’ exit, would it really be adequate to resolve the situation? When MPs face this question, there are many reasons to believe that they should demand a longer extension, given how little could be achieved within three months.

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Should we worry if MPs seize control of the parliamentary agenda?

download.001Ahead of Tuesday’s votes on Brexit, attention has focused on the rights and wrongs of the House of Commons seeking to ‘seize control’. Meg Russell argues that there’s nothing unusual about a democratic parliament controlling its own procedure and business. Indeed, the core principle of parliamentary sovereignty already gives the Commons control by default.

With stalemate over the Prime Minister’s Brexit deal, rejected dramatically by the House of Commons on 15 January by 432 votes to 202, there is increasing talk of parliament ‘seizing control’. On Tuesday, following the Speaker’s controversial decision to allow a vote on Conservative backbencher Dominic Grieve’s amendment speeding up the timetable, MPs will vote on a series of propositions about what should happen next. These include a further proposal by Grieve that the government’s usual control of the agenda should be set aside on specified days to allow MPs to make decisions on Brexit, and a proposal from Labour’s Yvette Cooper that such control be set aside to allow time to debate a private member’s bill demanding that ministers avoid a no deal Brexit by requesting an extension to Article 50.

Consequently, some inside government have expressed concerns that the Commons, with the Speaker’s assistance, is overreaching itself. It has been reported that an internal government document warns of MPs’ moves ‘represent[ing] a clear and present danger to all government business’, and even meaning that ‘the government would lose its ability to govern’. One senior legal figure (whose career was spent inside the government) has argued that changes of this kind could set dangerous precedents for the future, even potentially dragging the monarch into a constitutional crisis (though other legal experts have firmly rebutted such claims).

So are we entering dangerous constitutional territory? What is, after all, so odd about the idea of a democratically-elected chamber gaining greater control over its own time, and its own rules? Continue reading

A second Brexit referendum looks increasingly likely: what key questions need to be addressed?

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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. Continue reading

How and when might a second referendum on Brexit come about?

download.001alan_renwick.000jess_sargent.000Today the Constitution Unit launches a report on the possible mechanics of a further referendum on Brexit. In the last of a series of posts on this topic, Meg Russell, Alan Renwick and Jess Sargeant sum up the report’s findings, focusing on how a referendum might come about, what question would be asked, and the implications for referendum timing.

Our new report, The Mechanics of a Further Referendum on Brexit, is published today. While the report takes no position on whether a further referendum should be held, it explores the constitutional and legal questions that politicians would need to consider if proceeding with such a poll. Earlier blog posts in this series have considered the timetable, the possible triggers, the referendum question, the legal and regulatory framework, and the implications of extending Article 50. This post, based on the final chapter of the report, draws all this material together to consider how and when a further referendum might occur.

Conclusions from earlier chapters (and posts) include the following:

  • It would take at least 22 weeks to hold a referendum, following parliament’s initial decision. This is required for passing legislation, question testing by the Electoral Commission, and preparing and holding the campaign. An extra six weeks might be needed if a three-option question were used.
  • This implies that Article 50 would need to be extended, but this should be easy to achieve. The biggest complication is the European Parliament elections, due in late May 2019.
  • Given the planned parliamentary processes around Brexit there are five basic scenarios in which a referendum might be triggered – these are examined further below.
  • There are three viable options to put to a referendum – accepting the government’s deal with the EU (assuming there is one), leaving without a deal, or remaining in the EU. A yes/no vote on the deal would be unwise (as the meaning of a ‘no’ vote would be unclear). A two-part referendum would also be problematic. Hence the public might be offered the choice between two options, or all three options, in a single-question referendum.
  • The franchise for the poll should remain the same as in 2016, to avoid exacerbating arguments about legitimacy. Some updates to regulation (particularly regarding online campaigning) would be advisable.

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What would be the rules for a second Brexit referendum?

jess_sargent.000alan_renwick.000download.001This week’s Labour Party conference leaves a further Brexit referendum firmly on the political agenda. In the sixth of a series of posts on the mechanics of such a vote, Jess Sargeant, Alan Renwick, and Meg Russell examine what rules and regulations should govern the referendum process, arguing that important changes are needed to facilitate a fair and transparent campaign.

If  a further referendum on Brexit is held, the rules governing how it is conducted would be of utmost importance. The UK’s standing legislation on referendums – the Political Parties, Elections and Referendums Act (PPERA) 2000 – is both incomplete and in some respects out of date. As explained in a previous post, a new referendum would require fresh legislation. This therefore needs to fill in the gaps and update the rules to reflect the realities of modern campaigning. The natural starting point would be the legislation that paved the way for the 2016 referendum – the European Union Referendum Act 2015. But even that has deficiencies. This post examines key points that new referendum legislation would need to address. It also considers non-legislative changes that could improve the referendum campaign.

The franchise: who should be able to vote in a further referendum?

The franchise for referendums in the UK is not specified in PPERA, so would need to be defined in the legislation for a further Brexit referendum. The 2016 referendum franchise included all those eligible to vote in UK parliamentary elections, plus members of the House of Lords and EU citizens resident in Gibraltar. Some proponents of a second referendum argue this should be extended to 16- and 17-year-olds and EU citizens resident in the UK.

There are good arguments for extending the franchise, and precedent for doing so: 16- and 17-year-olds and EU citizens resident in Scotland could vote in the 2014 Scottish independence referendum. But – despite attempts to change this in parliament – the 2016 EU referendum legislation did not extend the right to vote to these groups, and consistency matters. If it appeared that the result of the 2016 referendum had been overturned because the franchise had been changed, many Leave supporters would view this outcome as illegitimate. As such, the franchise for any further referendum should be the same as for the 2016 vote.

How might referendum regulation be improved?

The referendum regulations in PPERA have not been substantively amended since they were introduced 2000. Since then, five referendums have been held, and the nature of communication and campaigning has changed significantly. Continue reading

Could Article 50 be extended to allow for a second Brexit referendum?

jess_sargent.000alan_renwick.000download.001With increasing speculation about a possible second referendum on Brexit, this is the fifth in a series of posts about the practicalities of such a poll. With ‘exit day’ set for 29 March 2019, Jess Sargeant, Alan Renwick and Meg Russell ask whether the Article 50 period could be extended to allow a referendum to take place, and what the knock-on consequences would be.

In a previous blogpost we concluded that, given the time it would take to hold a new referendum on Brexit, the UK’s exit day of 29 March 2019 would almost certainly need to be delayed. This is legally possible – Article 50, the clause of the EU treaty setting out the process by which member states can leave the EU, makes provision for an extension to the two-year period if agreed unanimously by the UK and the EU27. This post examines whether such an agreement is likely, what difficulties may be encountered should the UK’s leaving date be postponed, and what solutions could be found.

Would the EU be likely to agree an Article 50 extension?

All the indications are that the EU would be willing to agree an Article 50 extension to allow the UK to conduct a democratic process such as a general election or a referendum before Brexit is finalised. If remaining in the EU were an option in the referendum, the 27 might well want to afford the UK the opportunity to change its mind. Even if Remain were not an option, there is a strong argument that the EU would want to honour the democratic principles on which it was founded and not deny sufficient time for the UK electorate to have the chance to vote, provided it felt that the UK was being sincere and not just ‘playing for time’. Continue reading