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6 things we must plan for ahead of a People’s Vote

by David Hannay | 03.01.2019

David Hannay is a member of the House of Lords and former UK ambassador to the EU and UN.

It might seem a bit presumptuous to write about the detail of the referendum legislation that if and when a People’s Vote is secured. But, when that moment does come, events are likely to move pretty fast. It will be in no one’s interest to see Brexit uncertainty prolonged unnecessarily. And it will be important that supporters of a new referendum do not get at cross purposes over its broad structure.

Here are six questions which will need to be examined:

1. Timing

The date of a vote probably lies between June and October. Any earlier than June is likely to present insuperable problems over passing the necessary legislation and implementing it in an orderly way.

The timing will not be entirely in the UK’s gift. There will need to be a prolongation of the two-year Article 50 period, and this requires the agreement of all 28 member states. But problems arising over clashes with the European Parliament elections, due in May, are likely to be surmountable, both politically and legally, if the purpose is to allow the people a say on Brexit.

2. Question(s)

This will be the most hotly debated issue of all. Should there be a binary choice, either between the prime minister’s deal and not leaving or between no deal and not leaving? A binary choice which attempted to exclude the option of not leaving is unlikely to be acceptable to either House of Parliament.

There are partisans of a triple choice, or even of a referendum in two stages, but those options are unlikely to be chosen when the issue becomes a real and not a theoretical one. The lack of any experience in this country of a complex set of choices and the difficulty of implementing the result will weigh in the balance against them.

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3. Franchise

Those issues were sharply contested in 2015/16. The Lords backed a vote for 16 and 17 year olds (as in the Scottish referendum and as is now the law in Wales), but the Commons rejected the idea. That case remains compelling. Then there is the predicament of UK citizens living elsewhere in the EU who have lost the vote if they have been absent from the country for 15 years or more.

Speed and simplicity, as well as the need to avoid any accusations that the new vote is rigged against Brexit, point away from re-opening these issues and keeping the franchise the same as 2016.

4. Thresholds

There were no minimum thresholds required in 2016 for constituting a majority. This has since been much criticised in light of the narrowness of the outcome – only 37.4 % of the electorate voted to leave in 2016 even though this was 51.9 % of those who voted. But introducing a threshold at this stage would be hard to justify.

5. Should the result be binding or advisory?

In 2016 the outcome was, formally, only advisory – although the government has since chosen to interpret it as if it was one of the Tablets of Moses. Should it be binding this time? There are arguments in favour. To do so would help to counter the specious “best of three” scare story (actually this one would in any case be the third – after 1975 and 2016). And it would strengthen the contention that a new referendum was the best way to achieve closure on the Brexit issue.

6. Fraud or manipulation

Hardly a trivial issue after the activities of Arron Banks, Cambridge Analytica and others have had more light shone onto them. There is surely, at least, a case to increase massively the penalties for proven breaches of the electoral law.

The fact that all these questions are now hot topics is a major advance on where we were this time last year. Then the government seemed to be coasting towards the exit, following the preliminary divorce deal struck in December 2017. But for a People’s Vote to become reality, all these questions will need to be answered quickly and surely.

Edited by Luke Lythgoe

Tags: , Categories: UK Politics

15 Responses to “6 things we must plan for ahead of a People’s Vote”

  • What is happening to the option of withdrawing A50? We have the right to do so and it would be the most expedient and least costly option to getting us back on our feet and working to build a better Britain and contribute to a better EU.

    How many more millions will be spent by the government attempting to achieve brexit? How much destruction will occur in the next 6 months to our NHS, inaction due to uncertainty by industry, the inequitable treatment of the vulnerable, zero housing programs and on and on.

    We can do better in the EU. Let’s not hesitate. Withdraw A50 immediately.

  • Just one point, which may turn out to be fundamental, but I read somewhere that just for the Commons voting to extend Art.50 wouldn’t actually change anything, as crucially, Art. 50 is a legal agreement between the EU and UK. Could the Government
    just fail to enact Parliament’s vote? Views?

  • Article 50 says that once the notice of intention to withdraw has been submitted, the 2-year time clock starts ticking, and at the end of those 2 years the withdrawal takes effect unless that period has been extended (which needs all the EU27 to agree on the extension). However the CJEU has now told us that, if we have decided in the meantime (i.e. before the original notice finally takes effect) in a manner consistent with our constitutional requirements, that the notice should be revoked “in an unequivocal and unconditional manner”, this may be done unilaterally by “a notice addressed to the European Council in writing”. So a vote in the Commons isn’t enough by itself: there must be a written notice submitted to the EU Council by or on behalf of whatever passes for the UK government at the time.

    A moot point – so I believe – is whether a bare Commons vote on a resolution is sufficient, or whether there has to be a formal Act of Parliament authorising the revocation. For what it’s worth, and though I am a lawyer I am not a constitutional one and would willingly defer to anyone who is, I don’t think that the Gina Miller Supreme Court judgment requires an Act of Parliament for this. The revocation would not, so far as I am aware, deprive anyone of any rights that they have today, as we would merely be staying in the EU and nothing would change at a personal level, indeed the revocation would be extending what they would otherwise have after any Brexit.

  • May I comment briefly on David Hannay’s 6 questions.
    1. Timing. I agree.
    2. Question(s). It is not true to say that “this country” lacks any experience of [deciding between] a complex set of choices. Scotland and N. Ireland already use STV in some at least of their elections, and the Welsh Assembly has voted to adopt it for theirs. It is England that is behind the times and ignorant (not for the first time I have to say). Nevertheless, I agree that the choice should be binary, and be between (1) the May deal and (2) Remain. No other option than these likely to be available at any time soon, and I do not see the EU27 agreeing to any extension of the Art 50 2 years except to allow our making a choice between options that can be precisely defined now, “No deal” could be a third option in an STV based referendum, but as Parliament has already ruled out no deal as an option, what’s the point introducing an STV system that quite few would disapprove of in order to offer an outcome Parliament will not give effect to?
    3. Franchise. It was grossly unfair to eliminate both UK citizens who’d been 15 years or more elsewhere in the EU and also EU citizens who’d been resident in the UK for just as long. At least one group or the other should have had the vote, and whichever was chosen the result could well have gone the other way. However I think it is probably too late to change the franchise to avoid a charge of gerrymandering – though I would personally support a suitable extension to these groups.
    4. Threshold. Agreed. Having no substantial threshold in 2016 was utterly wrong, but this is not the time to change for any follow-up vote. If it is thought right to have a substantial threshold now, then we should declare the 2016 vote inadequate for undertaking any massive constitutional change such as Brexit, so the Art 50 notice ought to be withdrawn forthwith without more.
    5. Binding or Advisory. Agreed
    6. Fraud etc. Also fully agreed.

  • Disagree on Q3——–the first vote was rigged against Remain—we must not concede the status quo.
    The present House of Commons would probably support restoring the rights of those who were disenfranchised along with European citizens living in the UK.
    Also, because its their future, the franchise should be extended to 16 and 17 year olds.

  • I reluctantly agree it would be hard to change many of the terms of the 2016 referendum for 2019, without giving Leavers an excuse to complain it was rigged if they lost this time, but I agree there must be much tighter control next time over lies and expenses.

    However, re Nos, 4 and 5, a new referendum should either be mandatory with a threshold, or genuinely advisory without one. If it’s advisory, it should be followed by a free vote in the Commons with collective responsibility suspended.

  • As far as the Question is concerned, it needs to be simple. While the contributors to this thread are clued up, the vast majority of the electorate are not and the last thing we need to do at this point is to confuse them. I am not saying that they – mostly the leavers – are as thick as the proverbial two short planks but they do have more things on their plate to think about at the moment and, for most, Brexit is fairly low down on their list of priorities, despite the seriousness of the situation. So I agree that it should be a binary choice between leaving with the May deal or remaining. What does need to be done is to take action to ensure that there is a less hysterical run-up to the vote. How you do that, short of slapping a ‘D’ notice on the press and locking up the wealthy crooks that had so much to say the last time, I really don’t know.

  • I think there’s another key question, which is “Counting”. Will it be first-past-the-post? Alternative vote? Something else? I’m expecting the government to fix whatever voting system makes their preference more likely.

    And in the case of a complicated counting system, we will probably have to succeed in communicating to every Remain voter in the country how they should vote: for example in AV presumably ‘Remain in EU’ should be their first, second and third preference?

  • John… ideally the question would be simple. But I’m not sure we live a world where the simple question will work.

    For example, I’d be happy with a binary choice as long as one of the choices was staying in the EU:
    – PM’s Deal vs Remain: Europhobes in parliament would argue that’s a traversty, because a real Brexit isn’t on the ballot, and PM’s deal is overwhelmingly unpopular on all sides.
    – No Deal vs Remain: I don’t think May will go with that; and it’s not clear the EU would give an extension of A50 on the basis of not having the deal negotiated with them on the ballot.

    So then of course there’s:
    – PM’s Deal vs Remain: The country can go to hell if it that’s the choice, and I’d do my damndest to make sure it went to hell and stayed there. Plus, again, the EU probably wouldn’t give an extension of A50 on the basis of not having Remain on the ballot.

    And then a straight race between:
    – No Deal vs PM’s Deal vs Remain: that would suit me well; but Brexiters would argue that it splits the #Leave vote and isn’t fair. Which is where you we get the other counting mechanisms coming in.

    So I just don’t think simple is viable.

  • We cannot have a referendum with 3 choices; what will happen if we once again get a 32/33/34 split? – Therefore we have to eliminate one of the questions before the referendum. (I’d like to eliminate the Rees-Mogg Brexit, but it looks like the Theresa May Brexit has the greatest chance of universal rejection!).

    Some other points: we don’t have a Law for Referendums, though the EU does!

    Also, a lot has been said about being a “rule taker not a rule maker” (this is made-up by politicians of all sides). I don’t remember the 1’st Referendum saying anything about that. And in fact, if you scratch below the surface, that’s what the public is asking for, to be: “A Sovereign Rule Taker”!

  • it is actually quite amusing to see all the 2nd referendum advocates now twisting themselves in knots.
    Clean beak on WTO is the only sensible way forward.

  • To Tsuschan

    Splitting the Leave vote in a 3 way vote actually favours Leave in one sense, in that expanding the Leave choices favours the total Leave vote at the expense of Remain, which will tend to drop below 50 percent. Politically it could be more difficult to implement the simple option to remain if Leave, in some shape or other, outnumbers them in total.

    To give an analogy, if BMW offer many variations on their model versus a single Mercedes, then BMW increases its market share.

    To compensate for this effect you would have to balance the number of Remain options against the Leave options, for example

    Remain and join Shengen
    Remain on current terms
    Leave with May’s deal
    Leave with no deal

    In practice MP’s are unlikely to allow No deal as an option

  • On Question 2 (the question) that will depend on how the vote on May’s deal goes in the week commencing 14 January. If, as seems likely, it is voted down by a (large) majority as not satisfying Leavers or Remainers, then there is no point putting that option to the public in a ‘People’s Vote’. As Theresa May herself has said, the choice would then be between No Deal and No Brexit. That, then is the question that should be put to the public. A No Deal choice would satisfy the serious Leavers and the No Brexit option would satisfy the Remainers. So no side could argue that one option is favouring the other, as both their wishes would be represented. Done deal!

  • Points 2, 4 and 5 are interdependent.

    Point 2 can’t be established until the purpose of any new referendum is ascertained. If Parliament rejects May’s withdrawal agreement, as seems likely, then either the referendum is to decide between the remaining options (no deal or no exit) or it is to go over the heads of Parliament to put the PM’s deal directly to the electorate. Since Parliament is sovereign, that looks unlikely. Moreover, to have the effect of overruling Parliament it would have to be made binding.

    Point 4 is moot unless the referendum is binding. There is no logic in demanding a threshold be exceeded for advice to be valid.

    If the referendum is binding then constitutionally it must be post-legislative. In other words, Parliament must have already legislated for a particular outcome, and the electorate asked to ratify or reject it. There is no majority in Parliament for no deal, and at this moment neither for Mrs May’s withdrawal agreement.

    So, assuming that May’s deal is voted down, it will, perforce, be an advisory referendum offering a choice between Remain and Leave without any withdrawal agreement.

    -A.

  • Andy Cook is right, the new referendum must be advisory. It would be irresponsible in the extreme to risk a popular mandate for no deal.

    No deal is proving popular, because it has a superficial bravado and appeals to the Blitz spirit. Nothing wrong with that if it’s in a good cause, but to have people dying so that Rees-Mogg can stash more money abroad, is another matter.

    No deal could well win. Indeed, if you had “Fire the Trident nuclear arsenal on Downing Street” as one of the choices, it might succeed. This is the problem with populism. The country has to be safeguarded against the volatile emotions which can be whipped up by the unscrupulous in any campaign.

    The people’s vote would need to be very carefully thought through,and tested for validity, by a respected institution like the constitution unit at UCL. There is a mechanism already mapped out for doing this.