Forum for Debate

SCT’s Forum for Debate provides protagonists on either side of an issue or public debate  –  including think tanks, commentators, academics and campaigners – with an opportunity to set out their well-considered, rational arguments and then allow a limited number of exchanges between them. Rather than then hosting an open forum or blog, the debates are designed to encourage visitors, guided by links provided by the British Library, to seek out further information about the issues and engage in face-to-face debate themselves. The  debates could also provide material around which Speakers’ Corner Committees can organise their own local events.

The latest in the series appears below. Previous debates can be found in the archive.


The UK and the EU – the Case for a Second Referendum

The referendum on the UK’s membership of the European Union produced a clear, though narrow, 52-48% majority in favour of leaving. But since the vote on 23 June 2016, pressure for a second referendum has been building.

Those in favour argue that the first referendum was flawed by disinformation and misunderstanding, that the outcome of the recent general election shows that public opinion is changing and that, while the first vote may have reflected public sentiment on the principle of EU membership, voters must be allowed a final decision when they properly understand the practical consequences of withdrawal.

But opponents agree with the Prime Minister that “Brexit means Brexit”, that the electorate has expressed a settled view and that politicians of all parties and persuasions are bound to respect it. They suggest that a second referendum would be a profoundly undemocratic attempt to reverse a sovereign decision and that, in any event, since Parliament triggered Article 50, the process of the UK’s resignation from the EU is irreversible.

All agree, however, that decisions reached over the next eighteen months on the UK’s relationship with Europe will shape the country’s future for generations to come.

Two eminent lawyers debate whether a second referendum is desirable, necessary, legitimate and lawful.

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Andrew Lodder

One Essex Court

Andrew Lodder is a legal academic and barrister at One Essex Court, where he specialises in complex and high-value commercial litigation and international arbitration.

Andrew studied law at the University of Oxford, where he was a Rhodes Scholar and obtained a Bachelor of Civil Law and a D.Phil in law.

He also has a first-class honours degree in Political Science, specialising in political theory and international relations.

Prior to transferring to the English Bar in 2012, Andrew trained with the State Solicitor’s Office of Western Australia, taught private law at the University of Oxford and practised in New York and London as an associate at Shearman & Sterling LLP.

Andrew was recently named as one of Legal Week's ‘Stars at the Bar' for 2017.

Francis Hoar

Field Court Chambers

Francis Hoar is a barrister at Field Court Chambers and a leading election lawyer and public law specialist.

He is a committee member of Lawyers for Britain which campaigned for a Leave vote in the 2015 referendum.

Francis has published three papers on legal issues arising from the result of the Brexit referendum, including one on EU citizens rights and one proposing an adjudication system for future EU-UK disputes after Brexit.

Francis is best known for the landmark judgment he secured in 2015, voiding the election of Lutfur Rahman as Mayor of Tower Hamlets and finding him and his election agent guilty of substantial election fraud.

He was shortlisted for The Lawyer magazine’s ‘barrister of the year’ award in 2016 and, in May 2015, was The Times Lawyer of the Week.

Proposition

The first referendum did not decide what form Brexit should take - a second should

The 23 June 2016 referendum vote has no significance in English law except for that provided by the European Union Referendum Act 2015, which legislated for a non-binding referendum on whether "the United Kingdom remain a member of the European Union or leave the European Union”.

The advice given to Parliament by 37% of eligible voters on 23 June 2016 was to leave. Parliament had no obligation to act on that advice. But act it did: on 29 March 2017, the UK invoked Article 50 of the Treaty on European Union. Unless the period is extended under Article 50(3) by unanimous agreement or the Article 50 notification is revoked by the UK (the effect of which is untested and contested), the UK will automatically leave the EU at midnight on 30 March 2019.

To allow time for ratification, the Article 50 withdrawal agreement must be concluded by around October 2018. It will include provisions for the financial settlement, citizens’ rights, the Northern Ireland border and for implementing the UK’s withdrawal from the EU. All are matters of considerable public and/or constitutional significance.

Although the withdrawal agreement will take into account "the framework for [the UK’s] future relationship with the Union”, it will not be a trade agreement. That can only be entered into after the UK has left the EU and, in any case, is vanishingly unlikely to be concluded by 29 March 2019 (despite what voters were told and what David Davis has claimed).

So, if a second referendum is held before the UK leaves the EU (as opposed to a subsequent referendum to re-join), it will probably have to be on the withdrawal agreement and the post-Brexit relationship it envisages, not on a future Free Trade Agreement that will not yet have been negotiated and will likely not be concluded for years.

By October 2018, though, we ought to know at least the terms of the withdrawal agreement and the relationship the UK will enjoy with the EU for the immediate future. A referendum on whether to accept those terms could take place in parallel or staged with EU27 ratification steps between October 2018 and 29 March 2019.

Clearly, the public would know considerably more about what Brexit is to look like at that stage than they did on 23 June 2016. The question for this debate is whether the people ought to be consulted on those terms, as they were on whether to exit in the first place.

On balance, I think they should, either in a second referendum or at a general election. The 23 June 2016 vote was not a majority vote for whatever terms of exit the UK can negotiate with the EU27, however adverse.

Indeed, no concrete alternative to remaining was ever put forward; the public was offered a bewildering variety of potential resettlements of the UK’s relationship with the EU, from a bespoke deal with most of the benefits of membership and few of the costs, to the European Economic Area/European Free Trade Association option, to becoming the only major economy to trade solely on Wold Trade Organisation terms, which is what will happen in the event of no deal.

There was no majority for any particular future relationship and many of the potential options the public was offered and benefits they were promised have since been foreclosed by the Government’s insistence on leaving the single market and customs union (neither of which was decided by the referendum).

If one accepts the democratic logic of asking the public the referendum question in the first place (and I do not), the same logic applies to the withdrawal agreement and the future relationship envisaged by it.

Indeed, that logic applies even more forcefully as the deal realistically on offer now differs markedly from the promises made to voters prior to 23 June 2016. The public ought therefore to have their say on whether the UK should leave the EU on the terms agreed with the EU27 or remain in the EU after all.

Proposition

The British people have made their decision - Parliament must implement it

While Britain remains a representative democracy, referendums have become a feature of its constitutional settlement. Since 1973, thirteen have been held across the UK or in a particular nation or region and, since 2000, each has been subject to a particular statutory process (under the Political Parties, Elections and Referendums Act).

Each of the three cross-UK referendums concerned important constitutional questions unresolvable through the usual Parliamentary process. In 1975 and 2016, the leaderships of all the major parties supported remaining in the EEC or EU and in 2011 neither of the two largest parties supported proposals for the Alternative Vote electoral system.

In each case – and particularly through its overwhelming support for the EU Referendum Act – Parliament asked the people directly because they would not otherwise have had a choice.

And, while Parliament had no legal obligation to do so, the leaders of each major political party undertook, without qualification, to respect and implement their decision.

There was no misconception in June 2016: the British people were asked whether they wished to leave the European Union and the answer was unequivocal. Their vote followed an exhaustive national debate in which EU membership was the predominant focus of political discussion. The fairness and integrity of the process was overseen by the Electoral Commission and protected by laws regulating, amongst other things, spending, donations and the appointment of lead campaigners.

Some complain that the official Leave campaign was deceitful. Whether it was or not (and regardless of the assertions made in the Treasury report relied upon by the Remain campaign, themselves said to be misleading or untrue), this is no basis for questioning the legitimacy of the referendum or the result. A feature of an open democratic process is the opportunity to combat assertion with argument and evidence and each of the claims made by the Leave campaign were disputed loudly and frequently in the press, on the radio and on television.

Speech may only void an election in law if it contains threats to be carried out if a person votes one way or lies about the personal character of a candidate. In the first case, a person has not cast a free vote at all; in the second, the assertion about a candidate is impossible for the electorate to correct through reasonable enquiry.  In neither are allegations made that are easily contradicted in debate.

Yet the decision of 23 June 2016 was also unconditional. Parliament’s authorisation of a UK wide referendum was exceptional and the decision it entrusted to the people a limited one of principle. The referendum was held on the understanding – frequently exposed during the debate – that the relationship between the UK and the EU was to be negotiated and agreed between them and that the process of negotiation was entrusted by the people to the government by necessary virtue of the decision to leave the EU.

It was entrusted alive to risk: of an unsatisfactory deal or none at all; that agreement would not be reached with the remaining EU member states; or that the UK would automatically leave the EU two years after notification (under Article 50 of the Treaty on European Union), with or without an agreement.

Against this background, there has been no change to the status quo since 2016.  The EU has not changed, fundamentally or at all; there has been no significant passage of time, still less the 41 years between the EEC and EU referendums, and there has since been a general election at which over 85 per cent of MPs were elected on manifestos committing them to respect the result of the referendum.

A referendum asking the same question again has no legal or political justification.  It would represent the refusal by the political leadership to accept the result, an unspoken assertion that the answer given was wrong and an attempt to undo a decision entrusted by Parliament to the electorate.

Response

Francis defends the EU referendum against the charge that it was illegitimate. That is no part of my case for a referendum on the Article 50 withdrawal agreement, which is premised neither on the illegitimacy of the first referendum nor on an argument for it to be re-run.

As I have explained, the first referendum asked the public whether they wanted to retain the UK’s existing relationship with the EU but proposed no concrete alternative. It left open the possibility that, to paraphrase Churchill, the people believed EU membership to be the worst except for all the other alternatives.

Imagine instead that the referendum question had been “Should the UK keep or abolish the monarchy?” and that the public had returned a narrow vote for abolition. Parliament could debate alternatives, like a directly elected president or an appointed governor. But it would be nonsense to suggest the people had chosen one of these, and entirely legitimate to ask the public to approve a new constitutional arrangement in a subsequent referendum or retain the status quo. The same is true of the EU referendum.

As Francis implicitly acknowledges, the UK does not have much history of constitutional change by referendum. Now that it is belatedly taking this path, what ought to matter is whether a significant change to the constitution or fundamental rights is proposed. As I have explained, the Article 50 withdrawal agreement will likely involve at least three such changes: to the Irish border, the reciprocal rights of EU and UK citizens and to fundamental aspects of the future relationship with the EU.

It would be perfectly legitimate for a government to hold a referendum on a major change in any one of these areas, let alone all three at once. Indeed, if polls show a clear majority of the public against the proposed withdrawal agreement in October 2018, it would be difficult to justify any other path.

Response

The ‘democratic logic’ of a referendum on the principle of EU membership demands a referendum on the withdrawal agreement.  Why?  Referendums supplement but do not replace representative democracy: in this instance because the policy of the major political parties made it impossible for the question of EU membership to be resolved in a general election.

Parliament, through the undertakings of the bulk of MPs, agreed to implement the instruction it was given by majority vote.  If it can delegate its sovereignty to the EU, it can do so to the electorate (and those abstaining in the referendum surrendered their right to be counted).  That withdrawal would entail negotiating an uncertain final settlement was, necessarily, one of the most prominent features of the debate.

Is a second referendum necessary to allow the public ‘to have their say on whether the UK should leave the EU on the terms agreed with the EU27 or remain in the EU after all’?  To remain in the EU, even though withdrawal is automatic, barring a unanimous vote by the EU27 to extend the two-year period?

Were that period not extended, would the referendum authorise an application for membership?  What if the EU27 offered to amend the Treaty on European Union to allow the UK to retract notification, but only if it resumed membership without previous opt-outs, including the requirement of Euro membership and the rebate?  Would a referendum rejecting a withdrawal agreement legitimise acceptance of such an offer?

Since Article 50 notification, there is no status quo.  The process of withdrawal may not be reversed without the agreement of the EU27 and such agreement will be on their terms.  The prospect of a second referendum would de-stabilise the Brexit negotiations and make a sensible agreement less likely.  It would benefit only those whose objective is to prevent Brexit at any cost - its obvious intention.

Conclusion

Francis suggests that it was “impossible” for the question of EU membership to be resolved in a general election, apparently simply because both major parties supported continued membership. The reverse is true: this is a representative democracy and the UK’s EU membership has been settled for more than forty years by general elections that have returned a preponderance of elected representatives in favour.

That said, it has been no part of my case to contest Parliament’s decision to put EU membership to a plebiscite or to discredit the public’s answer.

Rather, I take the view that it matters what question was asked and answered: a narrow majority has advised the government that it wishes the UK to leave the EU. However, the public was not asked and has not chosen any alternative arrangement or offered a view of any of the other significant questions thrown up by the Article 50 withdrawal agreement.

If a majority of Parliament and/or a majority of the public opposes leaving the EU on the terms actually available, it makes not a lick of sense to contend that the UK is bound to do so because of the public’s earlier vote on 23 June 2016. There is no legal or democratic principle that demands that the UK must exit the EU come what may. It is plainly open to the public and the polity to decide otherwise.

In response, Francis queries whether the Article 50 notification can be reversed. The legal position is unclear but there are respectable arguments that it can be unilaterally revoked from no less than Lord Kerr (who authored Article 50) and the House of Lords’ legal counsel.

More importantly, however, the EU27 and its chief Brexit negotiator Michel Barnier have repeatedly made clear that a revocation would be accepted. A recent draft resolution indicated that the only conditions would be to ensure that revocation not be used as a “procedural device or abused in an attempt to improve the actual terms of the United Kingdom’s membership”. The practical reality is that retaining the UK’s existing terms of membership is an open alternative to Brexit and assurances of that could be demanded before holding any referendum.

In closing, treating the 23 June 2016 vote as requiring, or even authorising, the government to exit the EU on bad or catastrophic terms, particularly if those terms are opposed by the majority of UK citizens, is neither legally sound nor democratically legitimate.

In the event that the Article 50 withdrawal agreement does not command Parliamentary or public support, a second referendum on whether to exit the EU on the terms available or to remain a member would be both democratically legitimate and a pragmatic way to respect those who voted to leave by requiring a similar hurdle for the UK to remain in the EU.

Conclusion

Andrew argues that the democratic logic of asking the (first) referendum question applies to the withdrawal agreement and that referendums ‘ought’ to be held not only before a ‘significant’ change to the constitution but also on ‘fundamental rights’, Britain’s future relationship with the EU and the Northern Irish border.

Yet there is a clear distinction between membership of the EU and these issues. None is constitutional in nature - not the rights of non-citizens in the UK and British citizens outside it, not electronic (or any) customs barriers in Northern Ireland and not a treaty with the EU other than membership. Any agreement with the EU will be under international law without the requirement in domestic law (alien to normal treaties) that it may not depart from the UK’s international obligations under the treaty. Even compliance with the European Economic Area agreement is an obligation (of non-EU EEA member states) only under international law.

The EU referendum was justified for one reason: that Britain had surrendered sovereignty to the EEC/EU for 42 years without the electorate once having the opportunity to reverse or end that process either through a general election (in which a major party pledged withdrawal) or a referendum. Moreover, a mere decade ago both the largest parties committed to a referendum on the EU Constitution which was in substance later ratified by Parliament (through the Lisbon Treaty) without one.

The terms of the withdrawal agreement, important though they are, fall far outside that justification: they would not be constitutional; they would affect sovereignty only in so far as the UK maintained its international obligations (falling into the same category as membership of NATO or the World Trade Organisation); the electorate has endorsed the Lancaster House principles (which both parties to the confidence and supply agreement supported) at a general election; and there has been no substantial passage of time.

Moreover, as I have argued, a commitment to hold a second referendum would be a grave strategic error during the Brexit negotiations; and it would lead to the choice of endorsing the draft withdrawal agreement or a humiliating request to withdraw the Article 50 notification on the EU’s terms.

The (implicit) comparison with the Australian referendum on the monarchy is inapt. That was an entirely internal constitutional change unaffected by an ongoing negotiation with other members of a supra-national organisation. Besides, Australia requires any constitutional change (including the form of any proposed republican constitution) to be approved by referendum.

The limited use of referendums should be maintained as an exceptional measure used to determine constitutional issues of principle. The country has determined the principle. It is up to the government to negotiate and Parliament to ratify the terms of withdrawal.

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