Referendum and Referendumber

[steepholm]

I have a question about the proposal for a second Brexit referendum - as backed by many, including I think the LibDems and well-known Brocialist Owen Smith.

The question isn't about the principle. As I've mentioned here before, personally I'm against it on democratic grounds. (Yes, the Leave campaign lied, but then so did the Remain campaign - remember George Osborne's emergency budget? Nick Clegg lied about tuition fees, David Cameron lied about being green and not mucking around with the school system, Tony Blair lied about - well, take your pick. That didn't make their governments unconstitutional.)

No, my question is about procedure. As I understand it, the idea is that the British people should be given a vote on whether they accept the terms that have been negotiated for Brexit by the Government. But substantive negotiations won't even begin until after Article 50 has been triggered, and once that has happened there's no way (as I understand it) to untrigger it. The clock is ticking inexorably down an exit two years later.

Of course, it might be that the rest of the EU would be willing to have the UK back and to waive Article 50, but it would be under no obligation to do so on the same terms, surely, with the whole panoply of opt-outs and rebates that the UK has enjoyed until now? Would a UK that changed its mind be allowed to stay out of the Euro, for example? Or wouldn't it more resemble that moment in The Merchant of Venice, when Shylock realises he's not going to get away with taking his pound of flesh:

SHYLOCK: Give me my principal, and let me go.
...
PORTIA: He hath refused it in the open court:
He shall have merely justice and his bond.

In short, aren't people calling for a post-negotiation second referendum misunderstanding the legal position entirely? Or is that me?

Comments

[ron-broxted.livejournal.com]

Legal position? We voted leave. We leave. Why isn't Art 50 "triggered" now?

[steepholm.livejournal.com]

Because the Government doesn't know what it wants (other than to "call back yesterday, bid time return", since I'm in a Shakespeare quoting mood).

[nwhyte]

The referendum itself does not trigger Article 50. A formal notification of the UK's intent to leave must be sent by the UK government to the rest of the EU. That hasn't happened yet.

[ron-broxted.livejournal.com]

Grabs govt by lapels "Send 2 million Polacks back". that formal enough for you?

[heleninwales.livejournal.com]

There seems to be general agreement that EU citizens currently living in the UK will be allowed to remain, Even arch-Brexiteer Farage is agreed on that. So tough luck on getting your wish with regard to repatriation of all the Poles. Also, do you just want to send back the Polish people or would all people from the EU such as Italians, Dutch, French etc. also be sent back if you had your wish?

(Edited to correct silly mistake due to typing while tired.)

[steepholm.livejournal.com]

Okay, you crossed a line there, if not before. That last comment is barred.

[ron-broxted.livejournal.com]

Your blogge, your rules. I'd go into more details however, since embarking on a huge case of police perjury I have a (half) West Indian ex plod reading all my comments. How queer!

[nwhyte]

As with most Brexit topics, this has been widely discussed over here.

There's no Treaty provision for withdrawing an Article 50 notification. But there is little doubt that if the Council decided that such a notification had been withdrawn, that would be sufficient in procedural terms. It's not clear if that would require unanimity or just a qualified majority, but I think it's unlikely to matter.

Politically, as things stand right now, if the subject came up there would be a unanimous decision to forgive and forget from the other 27. It depends a bit on how the negotiations work out, but I find it difficult to imagine a situation where there is both a realistic chance of a Remain victory in a second referendum and a realistic chance that the Council (or even any single member state) would then vote to force out a UK that has changed its mind and voted to stay after all.

If a second referendum delivers a Remain vote and is accepted by the EU, all existing opt-outs would remain in place. What has been lost Is the extra deal that Cameron negotiated in the spring.

[steepholm.livejournal.com]

Thanks - I was hoping you might stop by!

[kalimac.livejournal.com]

It's not a legal problem, it's a political one. One of two things is going on here, possibly both:

1) Even apart from this, it's clear that the UK negotiators are somehow convinced that they can persuade the EU to reveal its terms before formal negotiation (i.e. triggered by Art. 50) starts, even though the EU's attitude is that there's nothing to talk about until then. How they expect to get around this isn't clear. Boris's winning personality?

2) The second referendum question won't be "Do we accept these terms?" It will be a simple do-over asking "No, really, did you mean that?"

[nwhyte]

On the first point, I have been grimly amused by British officials whining that the EU won't reveal its negotiating hand in advance. Why, it's almost as if the foreigners were working for their own best interests rather than Britain's - the scoundrels!

[steepholm.livejournal.com]

Once Article 50 is triggered it becomes a legal as well as a political one. The power to give effect to a Referendum then passes from being a right of the UK government to being a gift of the Council. Perhaps, as nwhyte implies, they would be happy enough to grant that gift without strings, but that doesn't seem certain to me, especially if things go acrimoniously in the negotiations, as is all too likely.

[kalimac.livejournal.com]

But since under both scenari the second referendum occurs without triggering Art. 50, the legal question is moot.

[nwhyte]

What???

I missed the point where we were discussing two different scenarios, let alone that there could be a second referendum without Article 50 being triggered.

I thought steepholm was pretty clear in her original post that she envisages a scenario where 20-23 months into Article 50 negotiations, a referendum is called on whether to accept the negotiated deal or to stay in the EU on something resembling the current terms.

If on the other hand the government decides not to trigger Article 50 at all and to stay in the EU on current terms, I doubt that they could win a referendum on that; I think they'd have to call an election on the issue. (Which I expect they wold win.)

[kalimac.livejournal.com]

I think she's incorrect about that scenario being what the proponents of a second referendum have in mind, you see. All the talk about trying to get terms out of the EU before triggering Art. 50 is for the purpose of knowing what will happen if they do trigger it, and by implication for deciding whether or not to do so, which in turn implies a referendum for giving political cover to the decision to change their minds.

The second point I made, about the do-over, is simply that: "Do we really want to go through with this at all?"

Whether it would be politically feasible to do either of these without a GE is another question: I'm speaking of the minds of the 2nd-referendum proponents here, not of reality; they're already divorced enough from reality in regards to negotiating with the EU. But if there is a GE on this issue, then what would the sides be? Tories Brexit, Labour Remain? Labour Brexit, Tories Remain? Both parties muddled? I'm having trouble envisaging any of these.

[nwhyte]

I really don't know which second-referendum proponents you are talking about. The government's position is clear: Brexit, no second referendum. The Lib Dems and a fair number in Labour and the pro-EU Tories are also clear: let's have a second referendum once the Article 50 terms are clear. There were indeed a number of people immediately after the vote who just wanted a do-over, as you say, but I haven't seen anyone sticking to that position once the shock wore off. Who do you have in mind?

[steepholm.livejournal.com]

Oh, but I think they have to trigger Art. 50 in order to have new terms to present - for without negotiation there will be no new terms, and without triggering Art. 50 there will be no negotiation. I don't see how anyone could argue in this climate for simply redoing the referendum because the public gave the "wrong" answer. Or rather, the only way I could see that happening is if the triggering of Art. 50 were delayed long enough that a case could be made that the decision of last June had somehow "expired" and needed to be renewed or rejected in a new vote. If things dragged on for a couple of years I suppose that's possible - but unlikely. (Also unlikely - but less so - is the possibility that Art. 50 simply won't be triggered, that it will be kicked down the road and thence into the long grass. However, I don't suppose the rest of the EU would wear that.)

[kalimac.livejournal.com]

They do have to trigger Art. 50 to have terms, but they don't want to do it that way. That was my first point. That's because they know that once the trigger is pulled, there's no legal or political room for a referendum. Hence, if they want a second referendum, they have to do that first. Which is one of the reasons they want the terms now.

If this impasse isn't resolved one way or another, then the ball won't be kicked into the long grass: the ball will just sit there and the long grass will grow around it.

[nwhyte]

Still puzzled as to who "they" are.

[kalimac.livejournal.com]

"They" are the people advocating a second referendum based on the terms the UK would get for exit. Why, who did you think we were talking about?

The last I heard, these people (the people advocating a second referendum based on the terms the UK would get for exit, in case that's still not clear) were pushing for it before the invocation of Article 50, because they knew that, once Article 50 was invoked, the process would be unstoppable. Are you claiming that they have subsequently forgotten this? ("This" being the knowledge that, once Article 50 is invoked, the process would be unstoppable, in case my pronouns are still not clear.)

Meanwhile, for the people actually tasked with negotiating the exit, I see two possible reasons for the hesitation to pull the Article 50 trigger and for trying to eke the terms out of the EU before beginning the formal negotiations attendant thereupon:
1) Concern that the two year limit doesn't leave long enough to negotiate the terms;
2) Concern over whether exit really is a good idea and/or whether the people, on consideration, really want it. The latter of these, and possibly the former, would imply the second referendum under discussion.
Am I missing anything?

[nwhyte]

Am I missing anything?

Well, yes. The people who I have seen recently advocating a second referendum based on the terms the UK would get for exit are fully aware that those terms won't be available until after Article 50 has been triggered and the subsequent negotiations reveal what the deal is likely to be. If you have seen others taking a different view, please specify. I'll specify from my side:

Owen Smith, Labour Party leadership challenger: "will vote in Parliament to block any attempt to invoke Article 50 until Theresa May commits to a second referendum or a general election on whatever the EU exit deal emerges at the end of the process", ie after Article 50 has been invoked.
Tim Farron, Lib Dem leader: "with the specifics of Brexit still to be determined, the British people deserved to be consulted again when the deal became clear".
Caroline Lucas, Green Party leader: "And once the principles of any new deal have been set out, we want them put to a second referendum".

Nobody (apart from maybe the most deluded British government officials) thinks the "deal" can take shape unless Article 50 has been triggered and negotiations have been conducted. There is therefore no viable strategy of trying to get precise terms out of the EU before Article 50 has been triggered (though the likely parameters are already visible to anyone who cares to read European rather than British newspapers). Donald Tusk, the President of the European Council, who will actually chair the talks, made this clear (again) last week: "for this – and especially for the start of the negotiations – we need the formal notification, I mean triggering article 50 ... This is the position shared by all 27 member states."

At the same time, it is accepted by almost everyone (as steepholm and I were discussing above) that Article 50 is not unstoppable; that the UK could change its mind about leaving at quite a late stage in proceedings (it's up to the UK how that decision is made), and that the other EU member states would probably accept that change of mind - nobody wants to throw the UK out against their will - unless the negotiations have been truly horrible and the atmosphere thoroughly poisoned. (Which of course can't be excluded as a possible outcome.)

I have not so far heard anyone from the UK Government since the referendum stating either that two year limit isn't long enough or that exit really isn't a good idea (of course I agree with both statements myself). This government is as leaky as a sieve, and if anyone senior really is thinking along those lines, we would heave heard about it by now.

[heliopausa.livejournal.com]

The Merchant of Venice scenario sounds very likely to me. :(