British Prime Minister Theresa May announces new Brexit ministers, July, 2016. Kirsty Wigglesworth /Press Association. All rights reserved.A few voices can be heard suggesting that a second EU referendum may be possible at some point before Brexit is set in concrete. Others argue, in return, that this would be undemocratic. Yet it is surely entirely reasonable to argue that Brexit is the biggest, most disruptive and negative event in UK domestic and foreign policy since world war two, and so to want to attempt to change minds.
If strong pro-EU arguments (stronger than in June’s referendum), together with the impact of Brexit, started shifting the polls on Brexit strongly, and if those in favour of a second EU referendum argued that they could achieve a new deal with the EU, there could at least be a case for a second vote.
Yet a second EU referendum looks unlikely for seven main reasons.
1. The Government doesn’t want a second referendum
Theresa May was notionally on the ‘remain’ side but has declared ‘Brexit means Brexit’. May has always been more of a eurosceptic than an EU enthusiast and it is hard to see the circumstances under which she would support a second referendum.
Perhaps, if the coming recession is both deep and wide, with other negative Brexit effects piling up, and public opinion visibly changing to a new and large anti-Brexit view, then May might consider it – but she would divide her party again in the process and the Tory right would never let her forget it.
And whether public opinion would change strongly with no political lead from government or opposition is also unlikely – a Yougov poll one week after the vote suggested little appetite for a new referendum.
So for now, the government says ‘Brexit means Brexit’ and that has knock-on effects.
2. The EU 27 won’t offer any new deal unasked
If the EU offered a new deal, whether on free movement of people or with some other focus, that could be a basis for holding a second referendum. But there is no reason to expect the EU 27 to offer such a deal unasked.
When Ireland and Denmark voted at different points to reject new EU treaties (Maastricht, Nice and Lisbon), their governments wanted to find a solution on the main issues seen as driving the ‘no’ vote in their countries, so that they could hold a second vote. Discussions were held, both on and off the record, between those governments and the other EU heads of government looking for an opt-out or a tweak to the treaties that would justify a second referendum. Then the Irish and Danish governments went back to their publics in a second referendum with their new opt-outs, tweaks and protocols.
But Theresa May is not asking for a new deal and a second referendum. So the EU 27 won’t be offering anything.
3. The opposition is in disarray
With Labour’s survival as a party currently in doubt, the idea of Labour (whoever its leader) creating a convincing, passionate and strategic case for EU membership and a second referendum – a much better, more compelling case than seen in the first referendum – seems unlikely. Jeremy Corbyn has now ruled out a second referendum. Challenger Owen Smith has suggested a vote on the Brexit deal once agreed, but that would be far too late (see point 4.) Tim Farron, for the Lib-Dems, has argued for a general election where pro-EU parties can set out their stalls, but on current trends the Tories would win it. Meanwhile, the SNP is focused on options for keeping Scotland in the EU, including independence, not on re-running the UK EU referendum (although in fact a second UK EU referendum surely is an option for Scotland staying in the EU).
It is probably wishful thinking to imagine that a strong shift in public opinion on the EU will come about if Labour, as the main opposition party, with or without other opposition parties, is not prioritising the case for the EU and a second referendum as its top priority.
It has been suggested that if there is a parliamentary vote on triggering Article 50, the Commons or Lords might reject triggering it until the outline of a new deal is clear or until the EU 27 offer a new deal. Those arguing for this are convinced there is a parliamentary majority against Brexit (which in terms of MPs’ views expressed during the referendum, there is) – and that with a pause the EU might offer a new deal on free movement.
But it is not clear that Tory MPs would now vote against triggering Article 50 or that the Lords could block Article 50 at all or for long.
And the EU 27 have said they will not start exit talks until the UK notifies its intention to withdraw, under Article 50. And, as explained above, there is no reason for the EU 27 to offer any new free movement deal to the UK unasked.
4. Brexit may happen before the UK’s new deal with the EU is clear
A number of people, including politicians, have argued that there should be a second referendum – or a general election – once the UK’s new deal with the EU is clear. This seems reasonable in that the ‘leave’ side, despite protestations to the contrary, did not set out a single, clear view of what Brexit would mean – May’s government is still working on what they think it may mean.
The problem here is timing and how the deal – or rather deals – may be done. Article 50 (of the EU’s Lisbon Treaty) says that a deal must be done within two years, unless that time limit is extended by unanimous agreement, otherwise the member state’s membership automatically lapses.
Given this time limit, it seems likely (as set out in Article 50) that the UK will negotiate at least two deals once Article 50 is triggered (or as many as six according to one in-depth analysis).
One deal, within the two year deadline set by Article 50, will be to sort out the basics of leaving the EU – including dealing with the rights of EU citizens currently in the UK, UK citizens elsewhere in the EU, outstanding budget contributions, the position of UK staff in EU institutions and so on.
The second deal will be the big one, aiming to establish the new trade, foreign policy and security relationship with the EU. The White Paper, expected this autumn, on the UK’s approach to Brexit will presumably set out the UK’s aims for this deal. But it is likely to take several years to negotiate – and indeed the UK may well agree a transitional set up with the EU so that when the UK leaves after two years under Article 50, it doesn’t simply fall back on WTO rules.
Since Article 50’s two years can only be extended by unanimous agreement of all the EU 27 then, quite probably, any second EU referendum would need to happen before the end of the two years or the UK will find itself outside the EU – and would need to apply to re-join if it changed its mind.
Those wanting a second referendum on the deal would have to explain why it would make sense to hold a referendum on a deal where the two sides’ opening positions were known but perhaps little more. They would need to be clear on whether the alternative to saying yes to the not-yet-agreed ‘deal’ would be staying in the EU – or would other options be possible, a Norway deal for instance. The deal David Cameron agreed in February is no longer on the table, so would the UK, while negotiating its Brexit deal also open talks with the EU on reviving the Cameron deal or aim to agree a new one?
If Theresa May is still prime minister when Article 50’s two year deadline expires, it is highly unlikely she would want to hold a referendum or negotiate a new EU membership deal, so the pro-second referendum proponents would need to explain how they would get round this.
5. The EU 27 may not agree a new UK-in-the-EU deal
The complex, detailed negotiations on Brexit are going to take up much EU political and diplomatic attention over the next several years. The EU 27 will at the same time be pushing forward with attempts to limit the damage of Brexit and re-launch the EU project while dealing with existing challenges from Ukraine to the eurozone to the refugee crisis.
If the UK did have a Prime Minister, as the Article 50 talks concluded, who wanted to hold a second referendum, would the EU 27 go along with this, having painstakingly negotiated the basic exit deal and part of the new overarching deal?
This is at best an open question. If Theresa May was currently asking Merkel, Hollande and others, behind closed doors, for some more flexibility on free movement, they would at least be interested (as with Ireland and Denmark) in talking about ways to reverse the Brexit vote.
But would Brussels go along with the UK, having negotiated over two years the first part of an exit deal, if it asked to pause, renegotiate the UK’s terms for staying in after all, and hold a referendum on it all. They might. But in two to three years’ time, the EU may have moved on, set in motion policies that wouldn’t have gone ahead if the UK were staying in, and already absorbed the main damaging impacts of Brexit.
6. And it may not be possible to withdraw Article 50 notification
Article 50 is silent on the question of whether a member state can withdraw its notification that it is going to leave the EU. This at least leaves open the possibility that the UK could hold a second EU referendum and then unilaterally withdraw notification and remain a member state (on its existing terms of membership).
But there will surely be different legal views on whether withdrawing notification is possible or not. And the views of the EU 27, in the end, are likely to be paramount. Depending when and why the UK withdrew its notification, the EU 27 may concur or not. A big row between the UK and the EU 27 over whether the UK can remain a member state would not set the stage for a successful second EU referendum.
7. Scotland may hold an indyref2
Nicola Sturgeon has said that she will explore all options for Scotland to stay in the EU and the single market – and persuaded the Scottish Parliament, for now, to back her. Options being considered range from independence to Scotland staying fully in the EU and the UK while the rest of the UK leaves (known as the ‘reverse Greenland’ option) or at least Scotland staying fully in the single market even if the rest of the UK does not.
The SNP may decide the only answer is independence – though opinion polls are mixed on whether the ‘leave’ vote has changed opinion on independence clearly towards stronger support for independence – the most recent poll suggested the opposite.
The SNP is well aware that if it wants to remain in the EU, rather than leave and re-join, it would need to hold a second independence referendum in 2017, allowing time to negotiate the terms of it leaving the UK, before the UK leaves the EU.
So there is a possibility that a second independence referendum could be held while the Article 50 talks are ongoing, perhaps even as early as next year. If Scotland voted ‘yes’ to independence, then that process is unlikely to be paused just because the UK decides to hold a second EU referendum (although some on the Unionist side might well argue it should be). If Scotland is not part of a second EU referendum, through going independent, then the struggle to achieve a ‘remain’ vote in a second referendum will be ever more uphill.
Any chance of a second EU referendum?
The chances of a second EU referendum look slight unless there is a major change of heart by Theresa May which is highly unlikely. So if the government stays firmly focused on Brexit negotiations, is there any conceivable route to a second referendum?
If the opposition parties were united in arguing for a second referendum, and prioritised making strong, sustained arguments as to why Brexit is, and will be, very damaging to the UK, then that would be a start. These arguments would need to be big picture and strategic, ranging from foreign policy to security to immigration to the economy – and much more coherent, and passionate, than in the June referendum. They would also need to make the case for how the EU needs to change in the face of its current mounting challenges.
Rather than David Cameron’s semi-opted out deal for the UK, the opposition would need to argue for the UK as a leading, high influence, fully engaged EU member state. And the opposition would need to focus, as a priority, on each and every indicator of the damage Brexit is already doing and looks like doing in the future.
These pro-EU arguments by united opposition parties would need to shift opinion substantially, and quickly, if pressure was to mount on the Tory government for a possible second referendum before Article 50’s two years are up. That also means a second referendum would need to be held long before any overarching deal covering trade, foreign policy, security, education, research and more was done.
And, assuming Article 50 is triggered by early next year, the opposition would need to obtain clear legal advice that the UK can withdraw that notification and so stay in the EU (if there was a second EU referendum and the vote was to remain).
The political conditions and approach that would be needed for a second referendum currently do not exist. Labour’s leader is against a second referendum and the Labour party is in disarray. The Tory government is currently unlikely to give the idea any attention at all. Scotland’s government is taking another route while the LibDems, arguing for a general election, are still reeling from last year’s general election wipe out. And debate, to the extent it exists, is focused mainly on how much single access the UK may get and how much control on immigration, rather than on the UK’s retreat from solidarity, partnership, voice, influence and the multiple connecting ties of the EU.
The conclusion on whether a second EU referendum is likely is stark: in current political circumstances, the building blocks for a second EU referendum do not exist while the impediments to such a route are real and large. Whatever Brexit means, for now there is no route back.
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