Jess Sargeant says Labour’s commitment to renegotiate a Brexit deal and then hold a referendum within six months leaves no room for error.
Jeremy Corbyn has promised that a Labour government would “get Brexit sorted” within six months.
The Labour leader says that he would agree another extension to the Article 50 period with the European Union, renegotiate a new Brexit deal in three months, and legislate for both the deal itself and a referendum – between that deal and remaining in the EU – to take place by June 2020.
The timeline is extremely tight. Holding a referendum usually takes a minimum of five months from the introduction of legislation to polling day, but under Labour’s plans it probably won’t be able to start legislating until the deal has been agreed. This means that it will either have to seriously revise down it is negotiating timeline, and wrap up a deal within a month, or find ways to streamline the referendum process. Either approach faces problems.
Labour has chosen the deadline of six months to make a political point on the campaign trail – but, as a result, it would be left with little room to manoeuvre.
According to calculations by the Institute for Government and the Constitution Unit, UCL, it takes a minimum of 21 or 22-weeks – from the introduction of legislation to polling day – to hold a referendum
Labour will first need to pass primary legislation to specify the wording of the referendum question, the date and the franchise for the poll (who can vote).
During the bill’s passage, the Electoral Commission, as part of its statutory duties, must assess the ‘intelligibility’ of the referendum question to ensure it is unambiguous and free from bias. The process, which involves public research and consultation with campaigners and experts, usually requires 12 weeks. It could be done in eight, but any attempts to streamline the process further could call the legitimacy of the vote into question.
To allow time for the statutory 10-week campaign period, legislation would need to pass by end of March at the latest if a referendum were to take place before a Labour government reaches six months in office. Any later and Labour would have to push back polling day.
Labour’s plan to hold a binding referendum mean it probably won’t be able to start legislating until the deal has been agreed
Labour plans to legislate for the referendum in a “Withdrawal Agreement and Referendum Bill”. There are good reasons for this approach.
If MPs did not pass the WAB before the referendum, a win for Leave would mean the government would need to legislate for the result after the vote. And while a second Leave win might make MPs feel that Parliament should not block Brexit, difficulties in passing the WAB –and further delay – could not be ruled out.
Parliamentary sovereignty means referendums in the UK are not legally binding, but if legislation to implement the result is passed before the poll takes place then referendums can be de facto binding. Labour’s proposal would provide certainty for voters that the outcome of the referendum would be implemented soon after a ‘leave’ result was announced.
But tying up referendum legislation with legislation to implement the withdrawal agreement might also delay the start of the process. It may be legally possible to introduce a bill to implement the deal before the deal has been agreed, it would be politically difficult to ask MPs to vote for the bill before they knew the details of the agreement. If legislation cannot be introduced before negotiations have concluded, this makes the six-month timetable extremely difficult, if not impossible.
To allow five months to hold a referendum, Labour will need introduce legislation before the end of January. This would allow just over a month for negotiations, rather than the three it has proposed.
Yet there is still uncertainty over the deal that Labour wants to strike with the EU – if it can even get that deal. The party uses some unchanging phrases about the ‘future relationship’, but it has yet to clarify its preferred form of withdrawal agreement. Once detailed discussions with the EU were underway, a Labour government might find that EU law and regulations constrain some of its intended domestic programme, such as nationalisation. This could affect how closely it wanted the UK to be tied to the EU. A speedy deal looks unlikely.
If negotiations ran on, this would not leave enough time to follow the normal process of holding a referendum. The time it takes to test the question is the biggest constraint on how quickly legislation can be passed. Labour could legislate for the referendum question separately from the actual legal basis of the vote, but this means the question would need to be set before negotiations with the EU had concluded. Or perhaps even begun.
In his scenario the Electoral Commission would be submitting recommendations on a question such as “leave with the government’s deal or remain”, despite the government not yet having agreed a deal. But once the deal was agreed, and referendum legislation introduced, MPs might want to amend the question or add another option. This would require further testing, and the Brexit timeline would then face delay.
‘Sorting’ Brexit in six months might sound attractively decisive and capable of dispatching the problem which has all but paralysed Parliament and government for three years. But committing itself to such a demanding deadline could cause big, early problems for Labour if it formed the next government.
It would be better, in our view, for Labour to allow itself more time to hold the referendum. If Labour did a deal with the EU within three months as it intends – which is still very ambitious – that would mean holding a referendum at least nine months after taking power. This would allow time to conclude its deal and to legislate for an agreed deal with a confirmatory referendum attached, without bypassing the normal process. Voters would then be given a clear choice between two defined options – and could be sure that their decision would be implemented. It would allow the Electoral Commission to test the referendum question properly, and avoid the risk of the legislative process running into the campaign period.
This might require more time – but deciding the UK’s constitutional future does not have to be so rushed.