Should Britain have a referendum on the final Brexit deal?

    •  Started 09/01/2018

Brexit means Brexit. It’s all very clear. Until you start drilling down into the details. Did 52% of voters in the 2016 referendum vote to leave the EU Single Market? Did they vote to leave the Customs Union? Did they vote to rejoin EFTA? Did they vote to create a hard border with Ireland? Was it a vote in favour of the Norway option? Or the Canada model? Was it for “no deal” and a return to trading under WTO rules?

At the best of times, interpreting referendum results and translating them into actual policy is a pretty thankless task. Political campaigns are always coalitions of different interest groups, so maintaining a fuzzy definition of the final outcome can help keep the coalition together. However, it also means that some of the people who voted in favour of Brexit are inevitably going to be disappointed with the result, no matter what it is.




What do our readers think? We had a comment sent in from Alex, who thinks the UK needs a second referendum on the terms of the final Brexit deal. He believes this would be the most democratic way to proceed. Is he right?

To get a reaction we spoke to Pavlos Eleftheriadis, a Professor of Public Law and a Fellow of Mansfield College at the University of Oxford who teaches Constitutional Law, European Union law and the philosophy of law. Professor Eleftheriadis is also a barrister in England and Wales and practises in EU and public law. What would he say to Alex?

I totally agree with Alex, for two reasons. One is that the referendum campaign itself had very inaccurate descriptions of what Brexit would be like. They were very optimistic, and I don’t think they were correct. For example, they said that Britain would have 350 million pounds per week returned from the EU that it could spend on the NHS, which was highly inaccurate. That’s the first problem.

The second problem is that precisely because it’s so difficult to describe what the future relationship might be, no campaign could have done it correctly. So, we voted against what we had, but it wasn’t possible to vote “for” anything in the future, because there are (broadly) four different possibilities: no deal, the Switzerland deal, the Canada deal, and the Norway deal. They are all quite different, and of course the public hasn’t voted on any of them. The referendum result told us that most people were dissatisfied with the status quo in 2016. But, of course, politics is about what you want to do, not what you don’t what to do. And we haven’t yet decided what we want to do.

We also had a comment from Rémi, who believes that once the Article 50 process has been triggered, the UK must inevitably leave. Is he right? If Britain wants to change its mind, will it have to reapply for EU membership? Or is it legally possible to unilaterally revoke Article 50 before the two-year time limit is up?

There is disagreement among lawyers on this, but I think the unanimous view is that if all the other Member States of the EU want the UK to stay, they can do it. Article 50 says that the notification has a two-year deadline which can be extended if there is unanimity. Well, if it can be extended by unanimity, it can be stopped by unanimity. I think most lawyers agree with that.

The question is: Can the Article 50 two-year deadline be stopped unilaterally? Can the UK say: Right, I’ve changed my mind, we’re staying. And I think many people, including myself, believe this can indeed be done – it’s lawful. Because Article 50 says you notify your “intention”, but you don’t notify your decision. And that’s perfectly reasonable because you will only be able to make a decision once you know the terms of the future relationship. So, your intention means that you start negotiating – which is what we’ve done. And Article 50 says you must do it in two years, otherwise it could go on for far too long. So, it disciplines the parties. That’s the meaning of the two-year deadline.

So, my view is that if the UK changed its mind, especially if it had another referendum or a parliamentary vote (any constitutional method would be acceptable) then the Article 50 process can be stopped and the UK can stay in the European Union.

Finally, we had a comment from Coralee arguing that another referendum would be a betrayal of democracy. She believes it would be like saying: “Vote again until you give us the right answer”. Is she right?

Well, Parliament always revisits issues. It’s the democratic way of deciding things: We open the issues, we debate them, and we can change our minds. That’s why we vote every four years, because we change our minds. We vote Conservative one year, then four years later we vote Labour, or vice-versa. That’s how democracy works, and I don’t see why it should be different for referenda.

The question today would be very different, because if the second referendum happens then it won’t be about whether we like the status quo or not – which was the 2016 question. It will be the question: Do we like the new Brexit deal that has been negotiated? Do we want that future? Or do we prefer the status quo?

Remember, many people who voted to leave in 2016 thought that Britain could stay in the Single Market so that the car industry, for example, can have these parts moving back and forth without tariffs or red tape. Clearly if many of these people knew the consequences they would have changed their mind.

So, for me, the two questions are very different. That’s why the British government needs to be very careful about this. To be properly democratic, the choice needs to be: The new Brexit deal, or remain. They are now talking about something else: The new deal, or no deal, which would be a disaster for everyone.

Should Britain hold a second referendum on Brexit? Would a second referendum undermine democracy? And is it even possible? Let us know your thoughts and comments in the form below and we’ll take them to policymakers and experts for their reactions!