Second referendum probably legally required

by Pavlos Eleftheriadis | 06.07.2016

A new referendum on the relations between the UK and the EU is almost certainly required under the European Union Act 2011. This Act created a ‘referendum lock’, which requires a referendum before an amendment of the EU Treaties can be ratified. As I argued in more detail in a post for the Oxford Business Law Blog, because the 2011 has been written in very broad terms, it almost certainly applies to the treaties that the UK is likely to conclude with the EU in order to withdraw from it.   

A new relationship post Brexit will normally need at least one new treaty and possibly two. The first is the narrow ‘withdrawal’ agreement of Article 50. The second is the broader trade agreement that may be agreed in due course between the EU and the UK (along the EEA, or ‘Swiss’ or ‘Canada’ models). Both will be international treaties. This is the only practical way in which the separation agreement could have legal effects once the UK has left the jurisdiction of the European Union.

The key to the application of the 2011 Act on these treaties is the distinction the Act draws between treaties that ‘amend’ the EU treaties and treaties that ‘replace’ them. Surprisingly perhaps, the Act says that it covers both. By drawing such a distinction the Act makes clear that it does not just cover a future treaty amending the primary treaties of EU law. The withdrawing agreement will clearly not be one of them.

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    Withdrawing and re-engaging

    Because the Act also covers what it refers to as ‘replacing’ treaties, it encompasses any treaties that may be concluded between the EU and the UK as a third party, if such a treaty will ‘replace’ the current EU treaties. It is obvious that any withdrawing agreement will replace those Treaties because by virtue of these treaties the UK will go from being a member to being a non-member. As ‘replacing’ treaties, the withdrawing treaty and the new trade agreement are likely to both fall under the scope of the European Union Act 2011.

    The 2011 Act outlines further necessary and sufficient conditions for calling a referendum. The tests are very broad, perhaps surprisingly so. They include, for example, every case where a treaty ‘confers’ on an EU institution or body ‘power to impose a requirement or obligation on the United Kingdom’. This provision is so broad, so all-encompassing and so easy to meet, that any trade agreement between the EU and the UK is likely to meet it. For example, if a new treaty gives the EEA the power to impose obligations on the UK, the test will be met. If an EU body acquires a right to bring a claim against the UK before a WTO panel or an ad hoc arbitration tribunal, the test will also be met. In practice, any new serious legal relationship between the UK and the EU will meet those tests.

    Of course, the 2011 Act was introduced for a different purpose. It was aimed to put a brake on further integration into the EU. But where the rule of law is respected, laws mean what they say. They do not mean what those who enacted them wanted them to say. In order to interpret the Act we need to start from the words on the page. And a literal reading of the Act suggests that any ‘replacing’ treaty with any significant legal effect must be put to a referendum.

    It follows that – in the absence of legislation repealing the 2011 Act – any withdrawal agreement and new trading agreement are in principle to be put to a referendum. If they were concluded at the same time, which would be the simplest solution, they could be approved together. But if the withdrawal agreement was concluded first, then it would have to be put to referendum on its own. In this complex and inconvenient scenario a future trading agreement, perhaps a few years later, would have to be put to referendum if its contents were taken to be ‘replacing’ the EU treaties too. Given that the UK will have withdrawn a few years before, perhaps this would be unlikely to be the case. But this matter will depend entirely on what exactly will be resolved by the first ‘withdrawal’ treaty and what new legislation will say about the 2011 Act.

    No withdrawal agreement?

    What if there is no withdrawal agreement and the two year period of Article 50 was allowed by the British government to run its course? In that case the UK would leave the EU at once without any withdrawal agreement. It would do so without any access to the single market other than that outlined by WTO rules, which would – presumably – apply automatically through the United Kingdom’s membership of the WTO. In this scenario no referendum would be required under the 2011 Act, since no new treaty would have been signed.

    If a withdrawal agreement was put to referendum, what would be the effect? In this case, under the 2011 Act, the referendum would be legally binding (unlike the June 23 referendum, which was advisory). It would be the last stage to the approval of the agreement by the UK following an act of parliament under the process provided by the 2011 Act.  If the people said ‘yes’, then the new agreement would take effect and would replace membership of the EU with another type of relationship. But if the answer was ‘no’, then the status quo, namely continuing membership of the European Union, would stay in place. It would have received a renewed mandate.

    Could the UK then withdraw the Article 50 notification? The treaty says nothing on whether notification can be revoked. The issue is currently disputed. The simplest view is that the withdrawing state should be allowed to revoke the notification under the same terms that apply to making it, i.e. in accordance with its own ‘constitutional requirements’ (Article 50(1)), whatever they may be.  The issue would end up one way or another before the Court of Justice of the EU. The Court is highly unlikely to show a member the door on the basis of the treaty’s silence, even if that member was the United Kingdom.

    Pavlos Eleftheriadis is a fellow in law at Mansfield College, Oxford and a barrister at Francis Taylor Building, London.

    Edited by Hugo Dixon

    12 Responses to “Second referendum probably legally required”

    • A second referendum will undermine the democratic process in the eyes of the electorate. They will see it as just holding referendums until the desired outcome is achieved. Had the remain vote won, there would of course have been no talk of a second referendum, it would have just been accepted and talked up as a good thing in the media. If we do have a second referendum and there is a smaller turnout, but a majority vote of that number to remain, but, is less than the majority vote to leave by the larger turnout who voted to leave, how is that fair and democratic? Many people who do not normally vote or engage with the democratic process turned out to vote, mainly because they felt disenfranchised with successive governments who do not speak for them and a patronising, elite owned media. The anticipation is probably, that many of these people will not have the heart to bother a second time and feel the whole process is not worthwhile. The vocal Remain minority, in pockets, such as London, Scotland and Ireland will turn out in their droves though, as may many young people who were too busy at Glastonbury to bother voting the last time. But what if all the remain voters turn out again and on top of that, encourage more remain voters to turn out? The will of the people was underestimated the first time and may be again. Perhaps when both sides provide coherent arguments and their plans and policies for each outcome scenario, perhaps people will be better informed. Last time, David Cameron committed a gross dereliction of duty by resigning when the vote did not go his way and FAILED to carry out the will of the majority of the electorate and abdicated the responsibility to others, who also failed ABYSMALLY.

    • “But if the answer was ‘no’, then the status quo, namely continuing membership of the European Union, would stay in place. It would have received a renewed mandate.”
      Not at all. It would simply bring to the two years term. And the refusal of the agreement (which is very likely considering that all or almost all remainers will vote no and a portion of brexiters will vote no aswell because they’ll prefer a more tough agreement) doesn’t mean that the UK doesn’t want to leave the EU. It simply means that agreement is not the one the people want.
      So i don’t see how this could led to the revoke of the 50th. It is more likely and more smart they don’t call out the 50th at all. If they do, that is going to have a single possible ending: Brexit.
      I’m a remainer although i’m one of the few who believes in a more intense integration of UK into the EU, not the current status quo, but you’ve to think about facts, not mere speculations.

    • Brexit referendum is only advisory and has already done horrific damage to the Pound and Stockmarket. Three Blue Chip companies have already taken thousands of jobs elsewhere. Great! Blair’s discomfort today over Iraq will pale into insignificance compared to the fate of the PM who signs Article 50.

    • Note that the 2011 act can be repealed, as the author of the post, Pavlos Eleftheriadis, indicates in the forth from last paragraph. I would expect the current government to do that as part of its process of implementing the referendum result, provided that government law officers concur with Mr. Eleftheriadis’s legal opinion.

    • In consideration of the impact of brexit a second or even third referendum should not be considered excessive to determine, yes, the vote we want. That is to say a clear and substantial majority of the electorate. As suggested by Farage before the referendum, a small margin for remain would be ‘unfinished business’ I have no doubt leavers would have called for a second referendum. Also it’s tiring to hear the incessant placatory comments ‘the people have chosen’ ‘Britain voted out’ followed up with ‘let’s accept and move on’. Well no …the people have not chosen, about half of them did.

    • Because A50 is silent on withdrawal of notification, it is also possible that the terms upon which such a withdrawal would be accepted might be open to negotiation. Negotiations which could have to be undertaken with severe time pressure. The most likely demands would be an end to some of UK’s special treatment such as our rebate.

      For this reason it is essential that the rules for withdrawal of notice are defined before A50 is triggered.