Debate Pack for the Westminster Hall debate on Monday 11 December at 4.30pm considering e-petitions 200004, 187570, 193282 and 200311 relating to a referendum on the deal for the UK’s exit from the European Union. The debate has been initiated by the Petitions Committee and will be led by Susan Elan Jones MP.
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Referendums in the UK
Although there has been a regulatory framework for referendums since 2000, each referendum held still requires primary legislation to allow for a national referendum to be held.
The general rules for the conduct of national referendums in the UK are set out in the Political Parties, Elections and Referendums Act 2000, often referred to as PPERA. It gives the Electoral Commission certain responsibilities in relation to referendums held under the terms of PPERA and makes general provisions to ensure the fair conduct of referendums.
More general information on referendums is available in Library briefing CBP 07692, Referendums.
To hold a referendum on the Brexit deal agreed between the UK Government and the EU, Parliament would be required to pass primary legislation to provide for the detailed rules governing the conduct of that referendum.
An Act would need to apply the required elements of electoral law for the poll and count to occur. The legislation would also set the terms of the question and the franchise to be used.
The Act to allow for the 2016 referendum on the UK’s membership of the EU was passed in 2015. The Parliament website has details of the European Union Referendum Act 2015, including background papers and debates on the passage of the Bill.
Timing of a referendum
The current timetable envisages a final Brexit deal in autumn 2018 with a Parliamentary vote on the deal in ‘late 2018’ (see Library briefing 7960, Brexit timeline: events leading to the UK’s exit from the European Union). The European Parliament is also expected to vote on a deal in late 2018, with the UK expected to leave the EU at the end of March 2019.
If the British public were allowed a vote on the final deal this might be expected to happen in late 2018 or early 2019.
The Electoral Commission recommends that detailed rules for the conduct of a poll (either new or amending rules) should be in place at least 6 months before polling day.
Legislation would need to be introduced with enough time to go through its Parliamentary stages and for the Electoral Commission to assess the question to be asked (see below).
What question to ask?
The question to ask is for the Government to decide when bringing forward the legislation allowing for the referendum. However, the Electoral Commission has a statutory role in assessing any question to be used in a national referendum. The Commission reports on the way the proposed referendum question is worded to make sure it is easy for voters to understand.
E-petition 200004 wants the Government to hold a referendum with three options:
- To revoke the UK’s Article 50 process and keep the UK in the EU;
- To reject the final deal and leave the EU without a deal;
- To accept the deal and leave the EU. Some argued that multi-part questions confuse voters. Others advocated a multi-part question where a two-option question would not accurately reflect a multi-part debate, thus making the outcome inaccurate.
- Despite the disagreement on the issue of multipart questions, the Committee found that there was unanimous agreement that referendum questions should be worded in accordance with the broad principles outlined by the Electoral Commission:
- The House of Lords Constitution Committee examined referendums in the first session of the 2010-15 Parliament. Its report, Referendums in the United Kingdom, noted that in the evidence it had received there was disagreement as to whether multi-option questions were appropriate.
- We recommend that the presumption should be in favour of questions posing only two options for voters but recognise that there may be occasions when multi-option questions are preferable. We look to the Electoral Commission to assess the merits of multi-option questions in their referendum question assessment exercise. (See the paragraphs 148-159 of the Constitution Committee report).
Would a referendum be binding?
The European Union Referendum Act 2015 did not contain a provision to implement the result of the referendum. It meant that the result of the referendum was not legally binding on the Government. However, the Government made clear that it would respect the result of the poll.
The Cabinet Office published a document in February 2016, The process for withdrawing from the European Union which stated:
- The result of the referendum on the UK’s membership of the European Union will be final. The Government would have a democratic duty to give effect to the electorate’s decision. The Prime Minister made clear to the House of Commons that “if the British people vote to leave, there is only one way to bring that about, namely to trigger Article 50 of the Treaties and begin the process of exit, and the British people would rightly expect that to start straight away”.
If a second referendum was to be binding it would require a provision within the Act allowing for the referendum. This was the case in the 2011 referendum on the proposal to change the way we elect Members of the House of Commons.
The Parliamentary Voting System and Constituencies Act 2011, which made provisions for holding a referendum on whether we should change from the First Past the Post system of elections to the House of Commons to the Alternative Vote (AV) system, explicitly made the result binding. Section 8 of the Act stated that in the event of a ‘yes’ vote to change the systems of election, then the provisions to allow for AV elections contained in the Act should be implemented. In the event of a ‘no’ vote then the provisions on AV were to be repealed.
Calls for a second referendum
In the House of Commons, Geraint Davies MP’s Private Member’s Bill, Terms of Withdrawal from EU (Referendum) Bill 2016-17, required “the holding of a referendum to endorse the United Kingdom and Gibraltar exit package proposed by HM Government for withdrawal from the EU, or to decide to remain a member, prior to the UK giving notice under Article 50 of the Treaty on European Union; and for connected purposes”. The order for the bill’s second reading was scheduled for Friday 12 May 2017, but as Parliament was dissolved for the General Election, the Bill fell.
But since the triggering of Article 50 and the start of negotiations, calls for another referendum have linked the vote to a withdrawal agreement agreed between the EU and the UK, and a choice between the deal – or no deal – and the status quo.
Government and Parliament views
The Prime Minister made clear in the Commons on 9 October that there would be no second referendum.
An Economic Survey of the UK published on 17 October by the Organisation for Economic Co-operation and Development (OECD) stated: “In case Brexit gets reversed by political decision (change of majority, new referendum, etc.), the positive impact on growth would be significant”. But the Treasury insisted there would be no second referendum.
The Labour Leader Jeremy Corbyn has said there is no need for a second referendum but for a good Brexit negotiation and a “meaningful vote in Parliament”. But recent reports suggest that he would not rule out a second referendum.
The Liberal Democrats and the Greens are in favour of a second EU referendum – offering a choice between the deal achieved in a withdrawal agreement and staying in the EU.
Polls since the referendum last year have concluded both for and against another EU referendum. In a recent Survation report for the Mail on Sunday, 50% of voters wanted a second referendum on Brexit after reports emerged that the UK’s exit bill could be up to £50 billion. 28% said they did not want to leave if remaining was still possible, while 33% said another vote was unnecessary and 16% were undecided. For more poll results on this topic, see WhatUKthinks polls.