Leavers' vote

The UK government has managed to negotiate a deal with the EU that is so bad, it is equally awful to both the winners and losers in 2016. Some achievement.

The deal does look rather close to what the Labour party was asking for until recently. As far as I can understand, Labour's agreed Brexit position is that they still don't actually have one, but they do agree that they want a general election. If they win, they can go from being an opposition with no agreed position on Brexit, to being a government with no agreed position on Brexit.

Perhaps electing a life-long eurosceptic to lead the UK's main pro-EU party, one year ahead of a referendum on EU membership, was a mistake.

Defeat in Parliament, which we're told is inevitable, might provide the opportunity to amend the Northern Irish backstop, if the EU can be convinced that conceding small but crucial changes could prevent no deal – or prevent the EU being lumbered with a truculent and volatile UK for the foreseeable future, an outcome just as bad again for both parties.

Leavers who resisted it at the time should probably have the good grace to thank those Remainers who insisted on a meaningful vote in Parliament. And with the same breath, they should curse the unforgivable stupidity of those same Remainers who insisted we should make no preparations to leave without a deal. As was loudly pointed out at the time, if no deal isn't an option, there'll be no choice but to accept any old deal on offer – which is where we are.

A Leavers' Vote

The most desirable outcome is amendment of the Withdrawal Agreement (as argued here). If the EU won't agree to reasonable amendments to the backstop protocol, or if Parliament won't approve such an amended deal, then there will finally be grounds for a People's Vote – or, to ditch that dismally transparent euphemism, a 'second referendum'.

Leavers should abandon the notion that a second referendum is necessarily a gateway to remaining. Some of their opponents seem to believe that, with unwarranted certainty, and they are probably wrong. A Leavers' Vote is well winnable.

Remain face a stiffer challenge than the one they flunked in 2016, and there's been little sign of any meaningful reflection over why they lost then, and what they should do differently second time around. Leave would, once again, have a big and hard-to-beat message, which they would run again and again – that abandoning our previous decision to leave, and remaining, would be a forced move. We would be staying because the EU had decided, as a matter of policy, to offer intolerable terms of exit, and because the UK government (specifically the Treasury) had deliberately blocked the alternative escape route of leaving without an Article 50 deal. Choosing to remain would mean that our constitutional settlement (which EU membership impacts greatly) and our trading arrangements would be determined, essentially, by duress. That would be an unhappy, unsustainable, and unconscionable state of affairs. No amount of questionable economic forecasting, or indignation at red buses, would turn that into a rational decision.

Grounds for a Leavers' Vote

The grounds for a second referendum are fairly simple. The government can have no grounds for believing, or gambling, that any one of the three available options complies with the mandate issued by the 2016 referendum. To choose any of them would therefore require fresh consent from voters, and to proceed without it would risk overturning a democratic decision made on a large turnout – which is to say, would risk enormous dysfunction. 

We have happily moved beyond the argument that the 2016 referendum result can be disregarded as 'merely advisory' – an argument that was only heard from the losing side after the vote, and not before it when they stood a chance of winning (in which event the result would have been, presumably, binding as all hell).

Those grounds:

1. Remain: This is, at the moment, the only option that has been clearly ruled out by voters.
   
   
2. The deal: What May and Robbins have negotiated falls pitifully short of delivering on control over laws and money. May could take a risk, and gamble that her deal is close enough to what voters demanded that it would satisfy the mandate – but unless she's privy to some fancy insider information, that's not a sensible gamble. The cost of gambling and losing could be a schism between Parliament and the majority of voters.
   
   
3. No deal: It seems likely that few people voted Leave in 2016 in the contemplation that there would be no deal at all. Even if this is not true, a referendum would be the only practical way to leave without a deal viable – Parliament will not countenance leaving with no deal, but could be compelled politically to take that option if a referendum result mandated it.

All three options are new courses of action that, to be taken, would require a new decision from voters. If they are the only options available, a new referendum must follow, provided of course that an extension to Article 50 could be agreed by all EU member states. The EU has said that they would be prepared to extend the Article 50 period in order to allow for an election or referendum, so it is not an impossibility.

Option 1: Remain vs. Leave redux

If there is consistent and credible evidence of a change of popular opinion against Brexit, such that asking voters to choose again between leaving and remaining would not be otiose and waste of time when there is none to spare, then the 2016 question should be put to voters again, but only if the following conditions were met: 

1. Remain can only be on the ballot if it is known a) that A50 can be revoked and b) what conditions if any the EU would impose on the UK following revocation, especially regarding the UK's exemptions; and
   
   
2. It is clearly understood that, in the event of a leave vote, it would be left to Parliament to decide whether to leave with May's deal or with no deal; if the present situation recurred and Parliament rejected both May's deal and no deal, then a further referendum would follow so voters could make the decision whether to leave with the/no deal.

There are all sorts of questions about procedure – would any A50 extension leave enough time for two referendums? Could Parliament and the Electoral Commission pre-prepare for the potential second referendum in scenario 2 at the same time as preparing for the first, or would the legislation and Commission approval have to wait until the outcome of the first remain/leave vote – and if so, would the A50 extension period leave enough time for this.

Option 2: Remain off the ballot

If, on the other hand, there is no consistent and credible evidence that a leave/remain ballot would deliver a different decision to the one voters made in 2016, then voters should be asked simply if they wish to leave with May's deal or no deal. 

There would be difficulties. It is possible some EU member states would not be prepared to extend A50 for the sake of a referendum that did not, or might not, allow for the possibility of remaining. Similarly, the benefit of an extension for the UK would be that it would allow time for the preparations for no deal that are necessary to make it a halfway-viable option – however it is likely that some member states (or one predictable member state at least) would be unwilling to allow the UK that benefit, as the EU would then sacrifice the enormous leverage it has as a result of the UK's lack of preparation for no deal.

The 'People's Vote'

If the UK left with May's deal, then there should be an understanding that Parliament could vote at a later date on whether to hold the 'People's Vote' that some Remainers have been demanding – that is, a further vote held when voters are in possession of the facts about future trade with the EU, which wasn't the case in 2016 and wouldn't be the case in the scenarios above. In accordance with that stated purpose of the People’s Vote (emphasis on stated), such a vote would have to be held when we know the facts – i.e. after trade negotiations between the UK and EU have concluded, and the legally binding terms of the deal are on paper. 

By that point, of course, we will have left the EU. The People's Vote would therefore have to be a choice between accepting the trade deal negotiated between the parties, or rejoining the EU as a new member state, as provided by Article 50. EU membership would be an option, but remaining would not.

It was always the case, since the Lisbon Treaty was agreed, that voting 'with all the facts' could only be done after we had left. Under the terms of Article 50, the trade deal can only be negotiated once the member state leaves and becomes a third country, which makes perfect sense. The EU couldn't conclude a new trade treaty with one of its own members – that's what the founding EU treaties are for. Until conclusion of the new treaty, A50 allows only for a non-binding political declaration of what the parties plan to agree in the future.

So the proposition of People's Voters that we could have a second referendum where Remain is on the ballot and where we know the terms of the future deal was always a non-starter (see here for my thoughts on why the arguments for PV were always broken-backed). But Remainers will of course be free to agitate for a vote to rejoin.

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A future referendum or two might finally, after much misguided agitation for one, be justified. It might even get us out of this mess. But it would also be divisive – and maybe, depending on the EU’s position, impossible.

The viability of another referendum is not, however, a reason why we should have one. Now that a further referendum is justified and viable, its usefulness is as a threatened outcome – if the government does not do everything it can to amend the Northern Ireland protocol, to make it consistent with the 2016 vote (and with the national interest), then it must face up to the inevitable consequence of another popular vote, and all of its difficulties.

There is, in legal theory at least, the possibility of using the ‘referendum lock’ of the European Union Act 2011 to force the government to hold and win a referendum as a condition of increasing the power of an EU competence. The legal arguments about whether the Act can be used in the Brexit context, having been drafted with treaty amendment in mind rather than exit from the treaties altogether, are fairly diverting, and it is interesting that both Leavers and Remainers have flirted with using the Act to force the government’s hand. However, the Act cannot serve to impose pressure on the government, as the power to repeal the Act is also in the government’s hands, by virtue of the European Union (Withdrawal) Act 2018.