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

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

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.
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 Good Friday Agreement at 20: what went wrong?

Alan_Rialto2 (1)The Good Friday Agreement (also known as the Belfast Agreement) is 20 years old today, but recent events in Northern Ireland have shown that power-sharing has proven a difficult exercise. Alan Whysall, who was involved in the negotiations that led to the Agreement as well as its implementation, examines what has gone wrong since the Agreement was signed. A second blog, to be published tomorrow, will discuss what can be done to get the Agreement back on track.

Today marks the 20th anniversary of the signing of the Good Friday Agreement, (‘the Agreement’),  but the system of power-sharing government it established in Northern Ireland has not functioned for over a year. It was widely seen in Britain, as elsewhere, as a significant act of statesmanship, supported by both main parties. But it now appears at risk, as the Irish border becomes a critical issue in the Brexit negotiations.

What has gone wrong?

The Agreement was a political construct to underwrite the ending of a conflict and address the divided politics of a divided society. Progress in those three areas – conflict, politics and society – is interlinked. There was a hope that the division would reduce. In society it has, to some degree, though the progress is now in danger; in politics, less so.

The Agreement covered a wide range of matters besides devolved power-sharing government, but the main focus has been on that issue. The institutions were troubled from the start. Power-sharing government was not established until late 1999. Dogged by unionist reluctance to be in government with Sinn Féin while the IRA continued in being, it collapsed in late 2002. Five years’ direct rule followed, during which the IRA declared its war over and decommissioned weapons, and political negotiations culminated in the St Andrews Agreement of 2006 (with minor changes to the Agreement institutions). Re-established in 2007, the institutions functioned for 10 years.

Sinn Féin pulled out of the Executive in January 2017 citing lack of ‘respect’ from the DUP, essentially around Irish identity. Its key demand became an Irish Language Act, much debated though little defined by either proposers or opponents. Political negotiations appeared to be leading to agreement in February this year, when the DUP abruptly pulled out, its base apparently unhappy at the prospect of the (rather modest) language legislation proposed in the draft text.

DUP figures now speak of restored devolution being impossible this year; no further negotiations are in prospect. The new Secretary of State, Karen Bradley, has brought forward legislation at Westminster on the Northern Ireland budget.

Since last January, opinion in Northern Ireland is much polarised; the rhetoric of the parties, and to some degree the print media, has plunged into a partisan downward spiral. The spirit of partnership that was once to the fore in politics, and at times won votes, is withering, with few vocal proponents in the political realm. Continue reading