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 →
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 →
Two years on from the Brexit vote, the benefits of a second referendum are being hotly debated. In this post, Jess Sargeant, Alan Renwick and Meg Russell identify seven questions that should be considered before parliament decides whether a second Brexit referendum will take place.
Last week a Sky poll suggested that 50% of the public would favour a three-way referendum on the UK’s future relationship with the EU. This follows calls from key figures including Justine Greening, Dominic Grieve, and Tony Blair, as well as a campaign launched by The Independent for the public to be allowed a vote on the final deal. Number 10 has categorically rejected these calls, stating that there will be no further referendum on Brexit ‘in any circumstances’. Nonetheless, talk of a second referendum is likely to continue. Whether you are a supporter or an opponent of that proposal, there are some big important questions about the practicalities of such a referendum that need to be explored. This post sets out some of the most crucial questions. In further posts over the coming weeks, we will begin to explore some of the answers. Those posts will appear as a collection on our project page, which can bew viewed here.
1. Would it be possible to hold a referendum in the time available?
To hold a referendum in the UK, parliament must first pass primary legislation, which clearly takes time. To complicate matters, during the bill’s passage through parliament, the Electoral Commission must assess the ‘intelligibility’ of the proposed referendum question – which usually takes ten weeks. There are then other key steps after the bill has received royal assent. The Electoral Commission and the local authorities that must run the poll need sufficient time to prepare. Campaigners on both sides must be designated, and the current legislative framework – the Political Parties, Elections and Referendums Act 2000 (PPERA) – sets out a ten-week regulated campaign period.
The time taken to go through these steps in actual referendums has varied. The legislation for the 2016 EU referendum was introduced 13 months before polling day. For the 2011 AV referendum this was nine and a half months, with only 11 weeks between royal assent and the poll. If the UK is to leave the EU on 29 March 2019 (exit day), such long timescales clearly are not feasible. A big question is therefore, in the current exceptional circumstances, whether the time needed for each step can be compressed – and if so, by how much and with what consequences? For a new referendum to have public legitimacy, these are crucial questions demanding careful answers.Continue reading →
Almost 20 years after the creation of the devolved governments in Scotland, Wales and Northern Ireland, England is the only country of the United Kingdom without its own devolved executive and legislative body. Meg Russell and Jack Sheldon offer their view on whether or not a dual mandate English Parliament is desirable or if it has the proper characteristics to be considered a parliament at all.
Calls for establishment of an English Parliament have been made for years, particularly following Labour’s devolution in the 1990s to Scotland, Wales and Northern Ireland. Initially such proposals were largely confined to the right of politics, and appeared a relatively fringe interest. But in the aftermath of the Scottish independence referendum, and the new powers devolved to the Scottish Parliament, proposals have also begun to be heard from the political left. Nonetheless, advocates have rarely elaborated on their proposals in detail, and there are many unresolved questions relating to the likely powers, functions, structure and composition of such a body. Since autumn 2016, the Constitution Unit has been working on a research project exploring the options, and a detailed report is due to be published shortly. This post will concentrate primarily on the key institutional questions raised by what is known as the ‘dual mandate’ model for an English Parliament, which some proponents suggest could be implemented as an incremental next step from ‘English votes for English laws’ (EVEL). We ask whether this model for an English Parliament is as innocuous as it looks, and indeed whether what it proposes is a parliament at all.
Models for an English Parliament
The most instinctively obvious model for an English Parliament is to create a completely new body, elected separately from the House of Commons, to mirror the legislatures in Scotland, Wales and Northern Ireland. Variants of this separately-elected model have been proposed by such figures as David Davis, Frank Field and Paul Nuttall. It is also favoured by the Campaign for an English Parliament, founded in 1998. Establishing such a body would be a big decision, entailing significant political upheaval and cost. The idea has many opponents, including experts such as Vernon Bogdanor and Adam Tomkins. A key concern is that a new elected body representing 85% of the UK population would, in the words of the House of Lords Constitution Committee, “introduce a destabilising asymmetry of power”. For all of these reasons, adoption of this proposal continues to appear politically unlikely.
The second model is what we call the dual mandate model, which is presented as a more incremental change. Here Westminster MPs representing English constituencies would meet as an English Parliament at certain times. Proponents see this as building on the existing EVEL procedures, creating a far clearer delineation at Westminster between England-only and UK business (and thus dealing once-and-for-all with the famous ‘West Lothian question’). The most prominent supporter has been John Redwood, but similar arrangements have also been proposed by MP Andrew Rosindell, Welsh AM David Melding, journalist Simon Heffer and writers from the Adam Smith Institute think tank. Nonetheless, this model is rejected by the Campaign for an English Parliament as ‘English Parliament lite’. Continue reading →
Vernon Bogdanor reflects on how the UK’s constitutional landscape has evolved since Robert Hazell established the Constitution Unit in 1995 and considers whether the time has come to draw up a codified constitution.
I was asked many years ago by OUP to be a referee for the book proposed called Constitutional Futures. I said:
‘This is a book that seeks to outline the issues of constitutional reform. It is being sponsored by The Constitution Unit, an authoritative and highly regarded organisation. The head of the Unit is a well-known writer in this field, Robert Hazell, who has studied the field for years and writes with authority. He is thoroughly familiar with recent scholarship but he also writes clearly and he does not employ the political science jargon which so often disfigures such works. There is no real competitor in the market.’
The book was published at the beginning of the period of constitutional reform. At the time Bagehot’s famous statement about the British constitution was true (in a way I do not think it is any more):
‘There is a great difficulty in the way of a writer who attempts to sketch a living constitution – a constitution that is in actual work and power. The difficulty is that the object is in constant change’. (p.5).
Venue: Archaeology Lecture Theatre G6, Gordon House
The referendum is an instrument of popular sovereignty, an institutional expression of the doctrine that political sovereignty derives from the people. In Britain, it has been used on a small range of issues, primarily to secure legitimacy. Some matters, especially those which involve a transfer of sovereignty, are so fundamental that the public may not accept a decision made by parliament alone as legitimate. In the 1970s, it has been suggested, Edward Heath took the British establishment into Europe, but it was left to Harold Wilson to bring the British people into Europe. Today, the establishment continues to favour membership, the people do not. That is the basic case for an `in-out’ referendum.
One difficulty with the referendum is that the question is decided by the politicians, not by the voters. The questionthat the voters wish to answer may not be on the ballot paper. In 2011, survey evidence indicated that the favoured option for most electoral reformers was proportional representation, not the alternative vote. Yet that option was not on the ballot paper. In Scotland, survey evidence indicates that further devolution is the favoured option rather than the status quo or independence. Yet that option is not to be on the ballot paper. On Europe. David Cameron proposes a referendum on renegotiated terms of membership, but survey evidence indicates that people favour an in/out referendum. Some means, therefore, should be found for taking the referendum out of the hands of the politicians.
Prof Vernon Bogdanor CBE will is Professor of Government at the Institute of Contemporary History, King’s College, London. He was formerly for many years Professor of Government at Oxford University. He is a Fellow of the British Academy, Honorary Fellow of the Institute for Advanced Legal Studies, and a Fellow of the Academy of the Social Sciences.
Referendums are increasingly becoming part of British civic life. Whilst this constitutional instrument remained unused in Britain until forty years ago, eleven referendums have taken place in the United Kingdom since 1973 – with only two held nationwide. In the past fifteen years a substantial number of constitutional issues have been subjected to popular approval.
According to Professor Vernon Bogdanor, the recent experience of referendums in the UK suggests the emergence of a new constitutional convention. Before significant powers could be devolved away from Westminster, a referendum would be required. In Professor Bogdanor’s opinion, the precedents set by the Scottish devolution referendums (1979 and 1997), the Welsh devolution referendums (1979, 1997 and 2011), the Greater London Authority referendum (1998), the Northern Ireland Belfast Agreement referendum (1998) and the North East England devolution referendum (2004) have developed a convention that may in turn constrain governments. Under this doctrine, the Westminster government would have an obligation to hold a referendum in the case of a delegation of power to devolved institutions and would be bound by its result.
Professor Bogdanor also argues that a referendum would be required when other major constitutional reforms are considered by Parliament. The most obvious examples would be the referendum on the Alternative Vote electoral system in 2011 and the future referendum on EU membership proposed by the Prime Minister, David Cameron. With these referendums – so the argument goes – political actors have created a precedent. They have generated a public expectation that certain pivotal issues of constitutional relevance remain the preserve of popular sovereignty. For this reason, it may even be possible to pose the question of whether the People could be regarded as the third chamber of Parliament. Therefore, even though an elastic and uncodified constitution (such as that of the UK) would in principle imply an elastic role for referendums, the referendum has developed into a doctrine that might even constrain Parliament.
The difficulty with this doctrine is that other recent major constitutional changes – such as the introduction of the Human Rights Act 1998 and the Constitutional Reform Act 2005 (which created the new Supreme Court) – have not been sanctioned by a referendum; nor was a referendum proposed before introducing elections to the House of Lords.
This suggests the doctrine is not yet particularly firm, even in relation to devolution. For example, a referendum was required before the Welsh Assembly could be granted primary legislative powers, but not for the grant of greater fiscal powers to the Scottish Parliament under the Scotland Act 2012. If next year’s Scottish independence referendum fails, and there are then proposals for Devo-Max, will a further referendum be required? Or will it depend on the actual result of the independence referendum? This uncertainty does not suggest the presence of a precise doctrine and appears to reinforce the argument that the use of referendums in the UK – in the absence of a codified constitution – is largely based on political considerations.