There will soon not be enough time for a further referendum before 29 March 2019

1st December 2017

Here is some downbeat information for those who want a further referendum on Brexit before 29 March 2019, the day on which the United Kingdom leaves the European Union by automatic operation of law (unless something exceptional and not currently in view happens).

There will soon not be enough time to get legislation in place.

A further referendum, like the last one, would require its own legislation.  There would also need to be a period for implementing regulations and (of course) for a campaign.

The legislation for the last referendum was the European Union Referendum Act 2015.

A look at its parliamentary stages shows that it took from May to December 2015 to get through parliament: seven months.

Straightforward implementing regulations were still being passed three months later in March 2016, and there was even an urgent regulation in June 2016.

The implementation and campaign period was a further three to six months before the June 2016 vote.

Taking the 2015 legislation as a precedent, it would require ten to thirteen months between commencing the legislative process and there being a vote.

Now factor that into the time available: a new Bill would need to be presented by April next year for a vote before 29 March 2019.

Of course: the process could be hastened.  But the 2015 legislation was botched even at its (relatively) leisurely pace – the urgent need for voter registration regulations in June 2016 was one example.

Another example of botched legislation – which would have made the Miller litigation and the 2016 Notification Act unnecessary – would have been an explicit provision on whether the vote was binding or not.

Referendum legislation, like most most things to do with Brexit, should not be rushed.

And if the vote is to be on a “deal” then that deal is unlikely to be in final form until after April 2018 – so the legislative process would have to begin without anyone knowing what the referendum would be about in that respect.

There is the possibility that the exit date could be changed and the Article 50 period extended, though this is currently not being proposed on any official level.

But unless there is such an extension, soon time will run out for those who want to reverse Brexit by a referendum.

(My opposition to a further referendum is set out at this FT post.  That opposition is primarily on basic constitutional principle. Not a great fan of referendums.)


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15 thoughts on “There will soon not be enough time for a further referendum before 29 March 2019”

  1. Admittedly there was different parliamentary arithmetic, but in 1997, there were just 133 days from the General Election in May to holding the referendum on devolution in Scotland.

    It was of course, pre-legislative, but it also had two questions (Whether there should be a Scottish Parliament and Whether it should have tax raising powers).

    There was also Princess Diana’s death just before the vote, which obviously necessitated an interruption.

  2. So we would need to stage the vote between Oct/Nov 2018 (when withdrawal agreement needs to be done as per EU27 ratification timetable) and Brexit Day, as a vote on the terms of the Art 50 withdrawal agreement (because obviously no trade agt concluded within Art 50 period), meaning fast-tracked legislation trough parliament in Q2 2018 at the latest realistically or would have to be unanimous agreement to an Art 50 extension?

  3. “Not a great fan of referendums”, the author writes.
    I feel certain that a cultured person like the author will know that “referendum” is a neutre Latin word and hence that its plural is “referenda”.
    Someone may legitimately think that such subtleries are irrelevant in such a serious context as Brexit. And yet, I believe that as the matter is really very serious, form is of paramount importance, form is substance.

    1. “Referenda” is a word people use to sound better educated than they are.

      Referendum is a gerund in Latin and so has no Latin plural. So the plural form would be the English.

      You’re welcome (assuming you are not trolling).

      1. I agree with your explanation but just to be really pedantic, Latin gerunds can have plurals.
        The plural of memorandum (thing to be recorded) is memoranda.
        The plural of agendum (thing to be done) is agenda (nearly always used in the singular in English, meaning list of things to be done).
        The problem with using referenda in the plural is that technically it would mean ‘things to be referred’, i.e. there would be more than one thing to vote on.
        The other problem with it is having to explain all the above, so best to stick to saying referendums!

  4. While you are thinking about referendum legislation, what do you think of this? The funding for Vote Leave was provided under S. 108 of the Political Parties Elections and Referendums Act (note not “referenda”) on the basis that it represented those campaigning for Leave. Does this not mean that they took the money in pursuit of a public purpose? See R v Whitaker [1914] KB 1283: “A public officer is a person undertaking any duty in the discharge of which the public are interested, more clearly so if he is paid out a fund provided by the public.” Thus there may be a question of misfeasance in public office if, say, Vote Leave representatives told lies to persuade the public to vote for those they were campaigning to persuade.

  5. On the other hand, it took eight days from Alexis Tsipras announcing there would be a referendum on an EU deal to that referendum taking place

  6. I too am not a fan of referendums on constitutional grounds which Is why I have no time for the view that the Government is obliged to follow the “will of the people” with respect to the Brexit referendum. Apart from totally ignoring the views of 48% of the vote in a gross distortion of the meaning of democracy, the referendum was not binding and carried no legal obligation. Yes, I know it has obvious political effects but leadership, from whatever party is in power, requires the courage, integrity, and wisdom(CIW) to do what is necessary, not what is popular. (Something like the wise parent saying no to the child). This is a fundamental principle of our representative parliamentary system. If the UK had the CIW to ask for the Article 50 date to be extended so that its voters could be consulted again then it could do so with no legal impediment. Such a “consultation” need not be another referendum; perhaps a fresh election followed by a free vote of the House. Whether the EU would agree this favour to Britain and miss the opportunity to get rid of the British once and for all is another question. No doubt it would extract its pound of flesh in the consequent negotiations.

    1. There is a difficulty in asking for the Article 50 date to be extended even if all the other 27 countries agree. This is that there will be European Parliament elections in 2019. In 2014 these were held over the period 22nd-25th May. The 29th March date is about as late as it can be to avoid wasting money on preparations for the European Parliament elections in the UK.

  7. As luck would have it, there is already a bill going through Parliament that could be used as a vehicle for this. Simply introduce new provisions at the start, providing for a referendum on the final deal (wording to be agreed after we know what the deal is, along the lines of “leave the EU on these terms OR remain in the EU”, just as the Electoral Commission finalised the wording for the 2016 referendum). Most of the provisions would simply enable regulations to be made for the process, as with the AV and 2016 referendums.

    You then add a clause saying that all of the provisions dealing with repeal of the 1972 Act and the Henry VIII powers (i.e., the Bill as it stands now) come into force if the result of the post-deal referendum is to leave. And another new part authorising the withdrawal of the art.50 notice if the result is to reject the deal.

    There’s certainly time to add all that to the Bill.

  8. David said:

    And if the vote is to be on a “deal” then that deal is unlikely to be in final form until after April 2018 – so the legislative process would have to begin without anyone knowing what the referendum would be about in that respect.

    Not understanding what the referendum would actually mean didn’t stop it the last time…

  9. This second referendum stuff really is nuts with a nut topping and a side order of extra nuts. If the first referendum was advisory (and the government always maintained it wasn’t) then there was no need for the government to listen to it and there is no need for a second referendum to overturn it, and if it wasn’t advisory then the decision is done and dusted.

    Once parliament votes 6:1 for a referendum and then ignores it where do you think that leaves democracy in this country? What happens to the consent of the people bit that is the underpinning of a law abiding and peaceful society? There is no going back to some pre-referendum period and pretending this never happened; if you overturn this you are opening a political Pandora’s Box.

    What cheeses me off most here is one group of society sitting in judgement on another, setting themselves up as judge and jury on my right to vote and finding reasons why their vote should count but my vote should not. Deciding unilaterally that I didn’t know what I was voting for whereas they did; that I am gullible and easily fooled whereas they are objective and rational individuals who can tell truth from fiction; that I didn’t understand the consequences of my vote but they did. Seriously, some people should just stop before they do themselves and the politics of the country more damage.

  10. I can’t see any way out at the moment. None of the following looks particularly likely before we lurch into a cliff-edge “hard” exit without any agreement, causing damage to the UK and the EU:
    * a second referendum ending with a “remain” vote
    * another general election won by “remain” parties
    * the UK leaving the EU but joining the EEA or EFTA
    * agreeing a suite of Swiss-style bilateral arrangements before we leave
    * agreeing a Canada-style free trade agreement before we leave
    * agreeing a Turkey-style common customs agreement before we leave
    * agreeing a Ukraine-style (dis)association agreement before we leave
    * any other arrangement that lets us trade with the EU freely and without customs barriers, but which does not involve accepting the four freedoms, and the role of the ECJ, and EU budget contributions

    As we are the UK (waves Union Flag and sings Rule Britannia) we expect to get our own bespoke arrangement (crafted by hand on Savile Row no doubt) but that will necessarily take more time than picking or adapting something “off the shelf”.

    I’m not even sure we will have agreed a destination, which will make any kind of transitional arrangements or implementation phase tricky.

    Brexit means Brexit, all right, but what does Brexit mean?

    Can’t we just join the EEA as a temporary transitional measure, and sort out the details at a leisurely pace over the next decade or two?

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