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16th November 2018

BREXIT - Another Referendum?

The clamour for a ‘People’s vote’ has been getting louder. Leaving aside the political questions - whether a ‘Referendum’ should play a significant part in a representative Parliamentary democracy, and whether there is a case for another one now - it is not simply a matter of issuing ballot papers. There would be proper process to follow.
The starting point is that if a decision to hold another Referendum was made, it would require a new Act of the UK Parliament – a piece of primary legislation, which will need to pass both Houses of Parliament. In that process, as with the 2016 Referendum detailed attention would need to be given not just to the number and character of questions to be put on the ballot paper, but the significance to be attached to the outcome of the poll. Generally, Referendums are only advisory, in the sense that it is left for Parliament to decide what to do with the outcome and pass any relevant law to give it effect (the 2011 ‘Alternative Vote’ Referendum Act being distinguishable on that front). The constitutional part that a ‘People’s Vote’ might play a second time around, would inevitably excite much debate.

The Political Parties, Elections and Referendums Act 2000 is the piece of legislation that governs UK referendums and sets out the part which the Electoral Commission (a body of people without political affiliation, appointed by the Sovereign) has to play in the arrangements. Its role includes considering and opining on the intelligibility of the questions to be put on the ballot paper and deciding who might be authorised to participate in the process of making the case for each outcome. Time also needs to be provided for the case for each outcome to be presented to the people of course as well as the administrative aspects of the exercise.

When scheduling a date for a Referendum therefore, allowance has to be made for the whole process. It takes time. We know this; we have been there before. Memories are short however.

If this was a course on which a Government now decided to embark (Mrs May has made it clear that her Government would not do so and it is highly emotive and controversial as we know), someone would also have to knock on Mr Tusk’s door at the EU Council of Ministers, to start the process of asking the other 27 Member States for their agreement to extend the Article 50 notice period to ensure that the UK is not in a position of having to re-apply for membership. We are waiting on a decision on of the CJEU on whether an Article 50 Notification could be unilaterally withdrawn and if the notice period expired at the end of March 2019, having to re-apply would be very messy indeed. Oh yes, I should add that the European Union (Withdrawal) Act 2018 would need amending as well.

If there are any straightforward dimensions to the Brexit story, I have yet to find them.


Dominic Hopkins is head of Disputes and Litigation at Hewitsons and an Associate Member of the UK Constitutional Law Association. For more information please contact Dominic Hopkins on 01604 233233 or click here to email Dominic.
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