The most commonly made case for a second referendum is that in 2016 the people voted for Brexit with different ideas of what that would look like. The argument now being advocated by senior figures from both main parties, and several minor ones, is that voters should be given a ‘people’s vote’ to ratify or reject the specific terms of Brexit that Theresa May hopes to negotiate this autumn.
The line from Downing Street remains unambiguous: “There is not going to be a second referendum under any circumstances.” Yet unambiguous lines from Downing Street have had a habit of bending or breaking under pressure over the past two years. A ‘people’s vote’ cannot be ruled out as a possible outcome of the current parliamentary chaos. But the risk is that the country hurtles into another divisive referendum campaign without properly thinking through what it is doing and why.
If we have learnt anything from June 2016, it is that referendums should be held only when there is clarity about the options on offer. So if a second referendum were to be held, it would be vital that the detail of each of the options was clear. It would also be essential for any options included to be achievable – including those which would require cooperation from the EU.
One immediate question that arises is what the options on the ballot paper should be. Referendums are usually binary yes/no questions. So a referendum could in principle be held between the negotiated deal and abandoning Brexit (assuming the EU-27 are willing to accommodate an eleventh-hour change of heart). Or between the negotiated deal and leaving without any deal.
However, the latest proposal, from Justine Greening, is for a three-way choice between the negotiated deal, a ‘no deal’ Brexit, and remaining in the EU after all..
If it were a three-option referendum, what voting system would be used? Justine Greening suggests preferential voting, in which the least popular option is eliminated and second preferences are reallocated to determine the ultimate winner (as used in the referendum on the Australian national anthem). In a close contest, that could lead to the most popular option on first preferences being defeated in the end. Would voters accept that as a legitimate result?
An alternative would be a two-part referendum, a precedent for which is the Scottish devolution referendum of 1997, when voters separately decided on the principle of devolution and on whether the new Scottish Parliament would have tax-varying powers.
But in a two-part Brexit referendum, what would the questions be, and in what sequence would they be put to voters? The outcome could well depend on these decisions. Would the first question be about whether or not to Brexit and then the second about how? Or the first question on the type of Brexit and then, given the type of Brexit, whether that was better or not than staying in? Or would question one be whether or not to approve the negotiated deal, and question two be a choice between Remain and No Deal, in the event the deal is rejected?
There is also a practical question about whether there will be time for another referendum, given the likelihood of negotiations going down to the wire. A referendum could only be held once there is a deal to put to the people, and it would do no good to the legitimacy of the result if the referendum campaign were compressed to a few weeks. There could be an extension to the Article 50 process beyond the end of March 2019, but that would require the unanimous agreement of the EU 27.
Reopening the Brexit question could open up other questions too. The first relates to devolution. In 2016, Scotland and Northern Ireland voted Remain, undermining the legitimacy of Brexit in those nations ever since. The Scottish Government view is that Brexit should not happen without consent in all four nations. The UK Government would be unlikely to concede that in a second referendum. The Scottish Government might also argue that in a multi-option vote, Scotland should have the additional option to remain in the EU as an independent state. In Northern Ireland, Sinn Fein might argue for Irish reunification to be on the ballot paper.
A further debate would arise about the franchise: should 16–17 year-olds and EU citizens in the UK be involved this time? Including either of those groups could have swung the result last time. In a knife-edge vote the franchise matters.
Referendums have become a more common part of the British political process. However, there is still a lack of agreed conventions and rules about how and when they should be used. Before a second Brexit referendum is contemplated, all these issues must first be considered and resolved.