What Question(s) for a “People’s Vote” Referendum?

The calls for a “People’s Vote” on the government’s proposed Brexit ‘deal’ (if indeed there is one) grow louder, but are especially contentious for the Labour Party, whose membership is more minded to “remain” than the public at large, which still seems fairly evenly split.

But the call for a People’s Vote is not so straightforward, partly now in terms of timing and Parliamentary arithmetic, but above all since it poses the tough question – what question to ask the People to vote on? Or indeed what questions, plural?

For some, the answer seems simple.  Take the economist Simon Wren-Lewis, who in a blog post today (25 September) argues:

“So what should the referendum question be? I do not think No Deal should be an option. No one seriously campaigned for No Deal in the first referendum, and only a minority of Conservative MPs (60?) support it. The obvious question to ask is do you want to accept the WA [Withdrawal Agreement] negotiated or do you want to Remain in the EU.”

Against this, there are those like FT’s Wolfgang Münchau who contend that no satisfactory question can be drafted.  Back in January, he said this:

“In referendums people accept or reject a proposition. “Should Scotland be an independent country?” was a good question. So was “Should the United Kingdom remain a member of the European Union”. They exclude other possibilities, and there are only two choices. But what question would you ask in a second referendum on Brexit? “Do you accept the withdrawal agreement or do you want to stay in the EU?” seems to be a favourite among pro-Remainers, but it offers a false choice. There is a third option not on offer: no deal, no membership.” [FT 21st January 2018, “Brexit ‘Revocateurs’ are wrong to put faith in another referendum”]

The 1997 Scottish Parliament Referendum

In my view, both Wren-Lewis and Münchau have got it wrong.  There is a relatively recent precedent for a two question referendum from Scotland which Mr Münchau does not mention – the 1997 Scottish Parliament referendum.  The second question was dependent on a positive answer to the first:

“Parliament has decided to consult people in Scotland on the Government's proposals for a Scottish Parliament:

 I agree there should be a Scottish Parliament

or

I do not agree there should be a Scottish Parliament

(To be marked by a single (X))”

 And second:

 “Parliament has decided to consult people in Scotland on the Government's proposals for a Scottish Parliament to have tax varying powers:

 I agree that a Scottish Parliament should have tax-varying powers

or

I do not agree that a Scottish Parliament should have tax-varying powers

(To be marked by a single (X))”

 So Münchau’s assumption that, for a “good” referendum, there must be a single question/issue is simply wrong. (The turn-out was 60%).

The political dangers of blocking a ‘no deal’ option

To my mind, Wren-Lewis is more misguided – and politically reckless.  To dismiss all options for ‘leaving’ other than the government’s (by definition contentious) proposal is to play into the hands of the motley crew of the most right-wing neoliberal, nationalist and fascist Brexiteer forces in our country, who would use it relentlessly not just at the time of the referendum, but for ever afterwards, as an example of the establishment trying to ban or censor the authentic voice of the people. It would undoubtedly be very painful to leave without any ‘deal’, and the poorest would indeed suffer more, but to prevent a vote on it would be extremely dangerous.

 I take it for granted that offering three options on one ballot would not work, since no one of the three (government proposed agreement, leave on no deal, remain) may get a majority. For if say ‘remain’ got 48%, and the two ‘leave’ options 26% each, what would happen? And surely we are not going to get into alternative or single transferable votes…

 Back on 30th June 2016 (just over a week after the Referendum) I wrote a blog article for PRIME Economics in which I first put forward my proposed “democratic strategy for the EU negotiations”, which included this:

 “… 5. Require the government to report to Parliament within 20 months on either the draft conclusion of an agreement which can be recommended for approval, or on the state of the negotiations to that point

 6. If there is a draft agreement which Parliament considers satisfactory and approves, then the withdrawal proceeds

7. If there is a draft agreement which Parliament does not consider satisfactory, then a second Referendum should be held before the end of 2 years from the date of giving the Article 50 notification, asking the question whether (a) to accept the terms of the agreement and confirm the withdrawal from the EU, or (b) not to accept the terms negotiated, and to withdraw the notification and remain a Member of the EU.

 8. If there is no draft agreement, then a second Referendum should be held asking the question whether (a) to confirm the withdrawal from the EU notwithstanding that no negotiated agreement has been reached, or (b) to withdraw the notification and remain a Member of the EU.

 9. The above time limits may be extended if the EU’s Council agrees to extend the 2 year period specified for the negotiation.”

[Emphasis added]

 I was therefore thinking, at that time, along the same lines as Simon Wren-Lewis today, before the splits in the Leave camp had become so deep and bitter – and before the negotiations were so ineptly handled by our government.

Which issue to take first?

So back to the present – and I am now convinced that – if a People’s Vote is to go forward, as I hope, then a two-issue ballot is the only sensible - indeed practicable - way forward.  The issue then is to determine which is the first issue, and which the second, dependent one?   You can (a) ask first whether to leave or remain, and if to leave, whether on the government’s proposed basis or not (no-deal Brexit).  Or you can (b) ask whether to accept the government’s proposed basis, and if not, whether to remain, or accept a no-deal Brexit.  I am sure that, politically, the second approach is better, because it puts the issue of “remain” as a very last option, i.e. it is the least challenging to the (very widely perceived) democratic legitimacy of the first Referendum.

The proposed issues for the People’s Vote

 So here at last (drum-roll) is my new proposal for the double-issue People’s Vote Referendum, with the second being dependent on a majority “do not agree” in the first:

 Question 1:  Parliament has decided to consult the people of the United Kingdom on whether, on the basis of the government’s proposed arrangements, to confirm the UK’s withdrawal from the EU on 29th March 2019:

 I agree that the United Kingdom should withdraw from the European Union on 29th March 2019 on the basis of the government’s proposed arrangements

Or

I do not agree that the United Kingdom should withdraw from the European Union on 29th March 2019 on the basis of the government’s proposed arrangements.

 (To be marked by a single (X))

 ————————-

Question 2: This question only applies if a majority of those voting on  Question 1 vote “No” (that is, a majority DO NOT AGREE to withdraw from the European Union on the basis of the government’s proposed arrangements):

The United Kingdom should in any event withdraw from the European Union on 29th March 2019

Or

The United Kingdom should now withdraw its notice of intention to leave the European Union, and continue as a member state

 To be marked by a single (X))

 These questions stick closely to the wording of Article 50 of the Treaty on European Union, which set out the “leaving” process. This includes:

 “the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”.

 So referring to the arrangements rather than the agreement gives more flexibility, given that there may at the time of the Referendum legislation - and indeed the Referendum - there might be no draft agreement, simply proposed arrangements…

 In relation to the second question/issue, I have used the term “in any event” rather than “without an agreement” for the first option, as it covers more eventualities, including the possibility of a slightly different set of agreed arrangements between Referendum and actually leaving. It therefore affords more wriggle room for last minute discussions, within the principle of leaving “in any event”.

 I also used the word “continue” rather than “remain” as EU member as I suggest it is psychologically better in terms of swing voters not to use the (now emotionally loaded) word “Remain”!   Although slightly more complex, I have kept closer to the Article 50 terminology in referring to withdrawing the notice of “intention” as everything legally hinges on the change of intention – as would be evidenced by the Referendum itself, if a majority so votes.

 The “withdrawal of notice of intention” legal issue

I am in favour of a People’s Vote as I am convinced that Brexit will not only be damaging economically (especially in a no or minimal deal scenario) but also politically, making it far more likely that the UK will be chained by right-wing Brexiteers into a future status of subservience to the most reactionary sections of US capital, and its political representation. 

I am also against the EEA / Norway option, which largely relegates the UK to a “rule-taker” role.  And finally, I believe the UK’s existing Treaty opt-outs from the duty to join the euro, and from the worst of the excessive deficits procedure, are essential to maintain. This means there is no good way back after 31st March – unless the EU and UK were to agree to extend the Article 50 notice period (of which no sign).  So even an extended transitional period is of no longer term benefit, as we will have left the EU. The Referendum must therefore take place by March next year (the Scottish Parliament Referendum was held just 6 weeks after Royal Assent to the enabling Act), and the notice of intention to withdraw from the EU must be rescinded before 29th March 2019.

But there is one big uncertainty over the People’s Vote strategy (apart from the practical issue of Parliamentary agreement and timing).  This is the continuing uncertainty over whether the ECJ will accept that a notice (notification) under Art 50 can be withdrawn once given.  There must of course be clear evidence of a genuine change of intention – which it is precisely the purpose of the 2nd Referendum to furnish. 

Now, Article 50 does not explicitly say it can be withdrawn, but since it refers to giving notification of intention to withdraw, not notice of withdrawal, this naturally poses the question – what if the intention clearly changes?  And on the other hand, how to protect the EU from being “gamed” by a tactical use of an alleged change of intention, for negotiating purposes?

There are some “remainers” who simply assert that the UK can withdraw its notification of intent – but as yet there is no legal decision on the point, and it is arguable either way.  Jurists like Jean-Claude Piris, who was Director General of the legal service to the EU Council of Ministers, argue that you can withdraw the notice.  Others argue that it can only be done if the EU27 unanimously agree.  And we read that only last week, a Scottish judge referred the issue to the European Court of Justice (see this short FT report).

So we need to acknowledge the “worst case” risk  – the people vote down government’s proposed arrangements, the people vote to withdraw Art 50 notification, then this withdrawal of notice is held not to be valid and UK falls out of the EU at the end of March in the most utter disarray…

 My own view is that the ECJ will uphold the right to withdraw notice if but only if there is the clearest of evidence of a change of heart (and thus of intention) of the UK.  And if - the biggest ‘if’ - the continued membership of the UK within the EU is seen by the judges as being in the interests of the EU itself.

And that, dear reader, is “a riddle, wrapped in a mystery, inside an enigma”. But for sure the key is the judges’ interpretation of the EU’s long-term supranational interest. [1]

Footnote

[1]  quote and reference here from Winston Churchill's famous radio broadcast in October 1939: "I cannot forecast to you the action of Russia. It is a riddle, wrapped in a mystery, inside an enigma; but perhaps there is a key. That key is Russian national interest."