Following the Labour Party’s vote to keep all options on the table, momentum continues to build towards holding a “people’s vote” on Brexit.
But the question remains: what would people be voting on if MPs do reject the deal secured by the government – or indeed if the government fails to secure any deal at all. In fact, it’s far more likely that there would be a referendum on remaining in the EU than for the vote to be about the deal itself.
A referendum on simply accepting or rejecting a deal would only really help to clarify things if the public voted to back the government and accept the withdrawal terms. If instead the deal were to be rejected, Brexit would still take place – but in a more disorderly manner.
One option to manage this risk would be to give voters an additional option to vote to remain in the EU. Nonetheless, referendums with multiple choices are complex. Instead, plebiscites typically prefer a straight choice between the status quo and change.
For Leavers, the status quo is that of the 2016 referendum, but for Remainers, the status quo is continuing EU membership. So Leave voters might want to choose between accepting a withdrawal agreement or leaving without one. Remain voters would likely want to choose between accepting a withdrawal agreement or remaining in the EU. Combining these two options could be achieved by asking voters to rank their preferences, but the UK has never held a referendum on these terms and interpreting the result is more difficult.
Significantly, such a ballot could not offer voters a means of expressing a preference for a different deal other than the one on the table, forcing them back into starker Leave/Remain positions if they didn’t want to accept the deal. Failure to agree on what should be on the ballot paper is a significant barrier to the likelihood of a referendum being held at all.
What all this overlooks, of course, is that parliament has already legislated a process for approving a withdrawal deal. The government is bound by the EU (Withdrawal) Act 2018 to obtain the approval of the House of Commons for its exit deal – and for parliament to legislate to implement the deal. It is not required to hold a referendum.
If the government presents its deal and it is accepted by MPs, then a referendum is of course unlikely to be offered. If the government was not confident that MPs would accept the deal, it could seek to tie their hands by offering an advisory referendum which MPs would be expected to honour, as they did when they authorised the triggering of Article 50 following the 2016 referendum. However, a referendum requires legislation which MPs could block if they simply wanted to keep decision-making within parliament.
If MPs voted to reject the deal, the government’s only hope of holding onto it could be a referendum asking voters straightforwardly to accept or reject it. Again, this would require legislation which MPs could block. Even if legislation was passed, it would seem unlikely that a referendum would back an agreement that MPs had rejected and it seems highly doubtful that one would be offered. Given the incredibly tight timeframe and the need to comply with the 2018 Act, a referendum on a withdrawal agreement looks difficult to achieve.
Halting Article 50
Either because a withdrawal deal is rejected by MPs or because we end up in a situation where the impasse between the UK and the EU cannot be overcome, any future Brexit referendum would be on whether to leave the EU without a deal or to remain in the EU. This is the more likely scenario. To get to that, the politics of a failed Brexit strategy would still have to play out.
Even with a change of prime minister or of government, the UK would still be leaving the EU on 29 March, 2019 and doing so without a withdrawal agreement unless one of two things happened. A new government could ask for more time to negotiate the UK’s departure. That is possible under the Article 50 procedure provided no EU country blocks the move.
Alternatively, a new government could seek to keep the UK in the EU by revoking its Article 50 notice. Following a court case in Scotland, we will know whether this is legally possible in the coming months. Politically, however, it is impossible to see how this could happen without the issue being put to the public in a general election or a referendum.
It doesn’t seem obvious that the circumstances that would give rise to a further referendum would mean that a people’s vote will be held on a withdrawal deal. If a referendum happens, it is more likely because a deal has been rejected or has not been agreed at all. And then the referendum would be about remaining in the EU or leaving without a deal. For some, this would indeed be a betrayal of the democratic choice made in 2016. For others, it would be an exercise in democracy in light of new circumstances. Either way, it won’t resolve the question of the UK’s relationship with the EU.