The practical and legal obstacles to a second referendum cannot be overcome, says a former Lord Justice of Appealby Richard Aikens / October 29, 2018 / Leave a comment
WB Yeats’s poem seems appropriate on Brexit at present: “things fall apart; the centre cannot hold/……The best lack all conviction, whilst the worst/Are full of passionate intensity.” One organisation called “People’s Vote” has widely campaigned for a second referendum on Brexit. The aim appears to be to have another referendum containing the question: do you wish the UK to remain in the EU? It hopes for a different result from the 2016 referendum; a second coming. It assumes that the European Court of Justice (ECJ) will say, in answer to the question referred to it by the Scottish Courts last month, that a notice to leave the EU given by a member state under Article 50 may be withdrawn unilaterally any time before the elapse of two-year period since the notice was given. But there are many practical and legal obstacles in the way of a timely second referendum.
The Political Parties, Elections and Referendum Act 2000 does not set the franchise, the question(s) to be asked or the date of any particular referendum. So a further referendum Act has to be passed to have the desired second referendum. The government has ruled this out, although some Tory Remain MPs might back it. The Labour Party is equivocal. The Lib Dems and the Scots Nats would vote for one. But there is no majority in favour of a referendum Bill in the present House of Commons. Any EU/UK “deal” seems unlikely before mid-November, if not later.
There are three ways, realistically, that a second referendum Bill could be introduced. First, as a part of the Bill that has to be passed by parliament under section 9 of the European Union (Withdrawal) Act 2018 before any deal can be put into effect; unlikely to command a majority. Secondly, if parliament rejected any deal and the government agreed to introduce a referendum Bill to enable the public to have its say on the deal directly. Also unlikely I think. Anyway, both smack of the establishment telling the public to “do better this time.” Thirdly, the proposed deal is voted down or there is no deal, the government then lost a confidence vote and so section 2(3) of the Fixed-term Parliaments Act 2011 was triggered, leading to an early general election. Voting day for the general election would be at the end of January 2019 and the new parliament would convene in February 2019.
Assume that there is…