The Government in a bind?

18 December 2018 by

Martin Downs is a barrister at One Crown Office Row.

Once again, the holding of a referendum is being discussed as the potential solution to a Party and Parliamentary impasse. 

Theresa May’s dilemma is that she has reached an agreement with the European Union about the terms of the UK’s withdrawal from the European Union but it is reported that even the Cabinet do not believe it will command a majority of the House of Commons

A number of politicians and commentators have argued that a potential way through this thicket is to call a further referendum. 

This leaves open the question – what type of referendum should there be?

Given the proximity of “exit day” on 29th March 2019, any referendum is likely to involve the European Union having to extend Article 50 of the Treaty on European Union. This would have to be agreed by the EU unanimously. It is understood that Member States are anxious to avoid an over-lengthy extension as that would raise questions about the elections to the European Parliamentwhich are to be held on 23 – 26thMay 2019.

For the UK, that would be a problem as it would need time to enact referendum legislation and then hold a referendum. If the referendum were only advisory, it would leave open the question as to whether there would be sufficient time for the UK Parliament to enact necessary legislation after any vote. Even then there would still a danger that Parliament would not approve a way forward that could be agreed between the UK and the EU. 

There have been three UK wide referenda: the European Communities membership referendum of 1975, the Alternative Vote (AV) referendum of 2011 and the EU membership vote in 2016. It is instructive to note that the second of these was a binding referendum, i.e. the Parliamentary Voting System and Constituencies Act 2011, which made provision for a complete statutory scheme such that if more votes were cast in favour of AV than against it then the provisions allowing for the same – already contained in the legislation –  would come into force. If there were more votes against the scheme (as there were) then the Minister was mandated to make an order repealing the AV provisions.  

For the Prime Minister then, in the case of Brexit, she would have the option of asking Parliament to pass legislation enacting her agreement with the European Union, which would be effective if and only if supported by the majority of voters in a referendum. 

It would equally be open to Parliament to legislate that in the event that the PM’s proposal was rejected, the Government would be mandated to revoke Article 50. 

Many parliamentarians may wish to advocate an alternative course. However, if the referendum were to be binding, it is arguable that it would have to provide choices that were actually available (such as the Prime Minister’s agreement, or continued EU membership). It would be open to Parliament to add a third option – albeit as Professor Vernon Bogdanor has pointed out – that would leave open the question as to whether the result were determined by single transferable vote or a French-style double ballot.

It should not be thought that a referendum is necessarily an easy pathway. The debate on the AV Referendum Bill was very protracted. Indeed the Lords Committee stage alone took four months (from November to February 2011). Even if the principle of a referendum were to be agreed, there would be disagreement about the Rules governing it, including as to the composition of the electorate – should it include 16 and 17 year-olds? What, if any, consequences should flow from any a breach of the relevant spending limits this time round?

It is appreciated that the text above evaluates the situation in which the Government proposes a referendum as a way through the current impasse. There may be other pathways, but it is important to recall that Order 14 (1) of the Standing Orders of the House of Commons provides that: 

 “Save as provided in this order, government business shall have precedence at every sitting.”

The initiative lies with the Government.

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