Brexit: Is a second referendum a possibility?

Ian Chapman-Curry: Hello I'm Ian Chapman Curry and I'm a pensions lawyer at Gowling WLG with a fascination for all things Brexit. In this episode I'm joined by Kieran Laird, partner and Head of Constitutional Affairs at Gowling WLG and we are going to be talking about some of the issues surrounding a second referendum.

Kieran this is an issue that just isn't going away and it's becoming embedded into the political discussion around Brexit. What are the main issues around having a second referendum?

Kieran Laird: Just to set the thing in context, the problem is that the more time that passes between the referendum back in 2016 and Brexit actually taking place, the greater the impetus is to hold a second referendum.

People think that to some extent the longer you leave it the more steel the result in 2016 becomes. For example, one of the things people talk about is the changing demographic, if you remember a greater majority of young people voted to remain and a greater proportion of older people voted to leave the EU. Of course, nature takes its course and some of those older people are now no longer with us whereas at the other end we have three years' worth of 18 year olds who have now joined the franchise.

You also have some people who say that the vote in 2016 was based on misinformation put out by different sides so people didn't actually know what they were voting on back then. We have a much clearer idea of what we would be voting on now. You also just have the practical fact that we haven't done Brexit yet and we have not done Brexit because the parties in Westminster haven't been able to approve the deal that the Government negotiated, nor have they been able to agree an alternative way of proceeding. The question is, what do we do about that? And even if a new Tory leader comes in he or she is going to be faced with some of the same issues. Some people say a second referendum is the only way to break that sort of deadlock.

Ian: It's interesting that it's been seen as one of the ways of solving that deadlock. A lot of people would argue the exact opposite, that it's going to fundamentally undermine the faith that was placed in the first referendum which was always going to be "the only vote that you're going to get on this", for at least a generation.

Kieran: Yes that's absolutely right. It's a really interesting point because a lot of different problems arise just from the very concept of a second referendum. Some of the political paralysis that we're seeing is because we have here two fundamentally different versions of democracy. What we have is the idea of a direct democracy where the people are directly involved in political decisions as exhibited in a referendum. We then have what is the more traditional way that politics operates here in the UK, a form of representative democracy where the people elect the MPs and the MEPs then make political decisions on their behalf.

The problem here is that you've had a direct and democratic decision which MPs then in their role as representatives are struggling to give effect to and they are torn between giving effect to the democratic decision of the people or in their role as elected representatives be obliged to some degree to go against that if they think that Brexit would damage the country. You've got that kind of war between two political narratives but then you've got the other idea that people were told this was going to be the one and only referendum. Lots of people voted leave because I don't think political elites listen to them anymore, if we then confront those people with another referendum how much worse is the problem going to get?

Ian: There's stacks of issues around why you might favour a second referendum and why might think that that's not the way to go. But even if we get consensus around the need to have a second referendum, if the political will is there, there's still some legal obstacles to overcome at that stage. What would be the next step for getting a second referendum off the starting blocks?

Kieran: We couldn't just hold a second referendum tomorrow if we officially said we had the political will to do it. There is an Act called the Political Parties Elections and Referendums Act 2000 and that sets a broad framework within which referendums take place, so that sets controls around campaigning and what campaigners can spend in the referendum, as well as controls around donations and around publications. But for each individual referendum you need a new Act of Parliament because that sets the date for the referendum, the question for the referendum and the franchise so you have the broad framework in place but then we would need another Act of Parliament on top of that.

Ian: Which is an interesting point as getting something through Parliament given the difficulties they've had around getting the withdrawal agreement from parliament would be fanciful. At the moment everything to do with Brexit is somewhat on hold pending the results of the Conservative Party leadership election. We have certain dates in the diary that we know such as the new Brexit date is the end of October so if we compressed everything do we have time to run a second referendum after the new Prime Minister is installed?

Kieran: I think the simple answer to that is no. Let's look at it in stages. As we talked about the first thing we need to do is pass an Act of Parliament, now you can do that relevantly quickly sometimes, the Prevention of Terrorism Act back in 2005 was passed in three weeks but I mean the point you made is absolutely right this is not going to be a straight forward piece of legislation.

The absolute bun fights in Parliament over an awful lot of these issues not least questions around what are we actually asking people on the franchise for example. We know that because there were big fights that were had back in 2015, whenever we were going through the legislation for the 2016 referendum.

It's not only that those issues are going to be controversial but the other thing with passing a legislation is that under the 2000 Act, that sets the broad framework for all of this stuff, the electoral commission has to analyse the referendum question before the bill leaves parliament.

It's quite a legislative process that's ongoing, the draft question gets sent to the electoral commission and what they do is, they conduct quite a bit of research with the public and have consultations with lots of stakeholders around whether or not the question is ambiguous, whether it's misleading or whether it's biased and they will then either state their approval of the draft questions or suggest an alternative.

There's no statutory timeframe saying how long they should take to do this in the 2000 Act but traditionally they've taken between about ten and 12 weeks to do it, so you're talking about ten to 12 weeks possibly for the legislation to pass at least. If you then put another three weeks on top of that to go through the rest of the Parliamentary process you're looking at a around 11 weeks for the legislation, before you get into anything else around the timeline.

After you pass a legislation under the 2000 Act you then have the regulated referendum period. The idea is that during this period the electoral commission designates lead campaigners for each side and the thing about being a lead campaigner is that you get a higher spending limit, you get a free distribution of information to voters, you get campaign broadcasts and grants for certain costs. What happens is that campaigners have four weeks to apply to the electoral commission to get nominated as a lead campaigner, the electoral commission then have two weeks to make a decision, so that's six weeks and then you have four weeks between designation and polling. So you have a six week period for the electoral commission to nominate a lead campaigner and then they get to use that status for four weeks, so that's a ten week period altogether and I mean the electoral commission think that that's too short, they've said in the past that they would prefer to designate lead campaigners before the regulated period or to extend the regulated period to 16 weeks.

If you take all of that together and you have the 11 weeks say to pass the legislation through Parliament you've ten weeks for a regulated period, you've 21 weeks for a referendum. If you have a week in the middle between passing the legislation and commencing the regulated period you get it to about 22 weeks and that's a conclusion that the University College London came to last year and I think that is probably right. I mean you can compress the amount of time the electoral commission takes to look at the question to eight weeks but the idea of squeezing anything else to change in the 2000 Act makes it appear less robust.

Ian: This is one of one of the main questions around the second referendum because it will need to have the highest level of legitimacy and if you try and rush these things through at any stage whether that's riding horse and cart through Parliament or making the period that's available for electioneering shorter then that's going to undermine that legitimacy.

It's interesting hearing you talk about the period for the actual election because if we cast our minds back to 2016, before the election race commenced, you had the whole fight between the two different leading pro-Brexit groups as to which one would ultimately be designated and then you had the actual election campaign and that period of time is when you have the promises on the side of buses, when you have the very fractious Question Time debates and public debates and pretty much every leading figure being rolled out to speak but if people cast their minds back that's what was happening in that period of time, in the run up to the actual vote.

Kieran: That's a really interesting point that you make. I think people forget about that sometimes, it's a weird period for the campaigners as well because in order to get designated as a lead campaigner one of the things that you have to try and show is that you're willing to work with the other campaigners on your side but that you are the one that best exemplifies all of the arguments and is best able to put all of the arguments for your side.

On the one hand you're trying to undercut all of your rivals on whichever side you're on while at the same time trying to convince the Electoral Commission that if you are designated you're going to work very nicely together.

Ian: There's not been much evidence that I've read besides work together as a block, there wasn't the main block for the European elections, there wasn't a pro-Brexit block for the same elections, same in the Peterborough by-election we just don't seem to get groups being willing to put aside other differences to fight on this specific issue it will be interesting if that did come and the fights that might erupt from different sides of the debate.

I think in the end this is when you got campaign groups that were so keen to get figures from the Labour party from different parts of other political parties to try and get across that they have that broad level of support in the run up to the referendum. It will be interesting to see if any one group could actually muster the same sort of thing again. If the timing is really one of the key issues perhaps most politically important to the outcome is the actual question that frames the referendum so what other things would be going in to thinking about what the people are actually asking in a second referendum?

Kieran: This is one of the things that's going to mean that we don't get this legislation through Parliament very quickly because there's going to be interminable debates as to what the question is actually going to be that we ask people.

It throws up a really interesting set of choices, thus far in the UK we've only ever had referendums that present two choices as an alternative so should Scotland be independent, yes or no? Should we leave or remain within the EU? The first question is do you have two choices or do you have more than two choices? And then the second question is what would those choices be?

So whenever you're thinking about do we have two choices or do we have more you then you have to unpack that further to say OK well if we have two choices is it a simple yes or no on a particular question, say for example the Government's deal, one of the problems with that is that we end up with a choice between the option on the ballot paper and the status quo and people are usually more likely to vote for the status quo, of course they didn't do that back in 2016 but that's the general sort of theory of the psychology of referendums.

The other problem is with that kind of question that if it's framed as a yes or no on the Government's deal for example, both the Remainers and Leavers would be likely to vote against that for very different reasons. You're less able to actually figure out what the result would mean because you're drawing together very disparate views of people.

An alternative to having just yes or no would be to have sort of two options for proceeding, do you want deal or no deal or do you want deal or remain for example. The problem is that we've become so polarised on these sorts of issues that the Remainers aren't going to want a choice between deal or no deal without remain on the paper. The people who support Brexit but don't like the deal aren't going to want a straight run off between the deal they say is awful and remain because they've been pretty much put in the remain case more than anything else. Having more than two options would mean that no prominent option is excluded but then if you have more than two options you end up with all sorts of other problems.

For example what kind of voting system are we actually using to choose between, say, three options? Is it the first past the post system where just the one with the most votes wins? The problem there is that one could win even if though it doesn't have 50%25 of the vote, so you have that.

If you don't use a first past the post system are you going to use some sort of alternative vote, that would be where you have people rank their preferences, so for example if you have three options, the Government's deal, no deal or remain and you ask people to put 1, 2, 3 beside those in rank order you then count the first preference votes. If one of the options gets more than 50%25 then that wins outright but if it doesn't then you eliminate the least popular option and divide its second preference votes between the other two. The problem there is that whenever you do that there's a chance that the option with the most first preference votes would actually lose, they're going to have less first preference votes but more second preference votes and that seems a little uncomfortable.

Another way of doing it is, and this is an idea that the ex-Attorney General Dominic Grieve put forward, is to have two sets of questions so essentially structuring the referendum into two tiers. For example, you could ask people:

1. first do you want to leave or do you want to remain?; and
2. then ask them the basis they want to leave (assuming they have voted to leave) - would you like to leave with no deal or the Government's current deal?

Another way of doing it would be to say do you accept or reject the Government's deal. If you reject the Government's deal do you want to leave with no deal or do you want to remain? I mean that too has lots of issues associated with it, and you need to try to unpack how people vote tactically in all of these things.

The problem is the result needs to command respect and acceptance so you need to have some sort of defensible way of structuring it and that's even before you come on to the question of what would the options be. There's no real point in having an option on the paper like re-open negotiations with the EU in circumstances where the EU say they're just not going to that. There's lots of MPs that aren't going to want a no deal on the paper because the Commons have said a few times that a majority of MPs aren't for a no deal. There's always a question about whether you put anything on the referendum paper that you can't live with.

You also then have the fact that the Electoral Commission has a statutory role to play in actually assessing whatever question they come up with so they can spend days debating all of this in Parliament, to come up with some very elaborately structured question with lots of fancy ways of trying to tease people's views out, only for the Electoral Commission to say well that's not really clear to the people so we recommend something else. You can see why it's not very straightforward to say we'll have a second referendum because the question is on what?

Ian:

It's far from straightforward and it's interesting even raising the possibility of AV [Alternative Vote] because one of the last nationwide referendums was the wholesale rejection of AV as a possible voting system for UK Parliamentary or certainly England, Wales and Scotland Parliamentary elections. Anything that gets away from a simple binary choice goes back to that legitimacy point, it raises those questions.

Perhaps what we're facing here is that having a direct democratic decision is very difficult when the options available are very complicated and very complicated even for people immersed in the detail to get their heads around all of them so how on earth do you put forward a multitude of possibilities to an electorate in a hope to get something sensible out at the other end.

Kieran: It gets even more complicated where some people try and suggest that some of the options that should be on the paper relate to our future trading deal with the EU. Some people are talking about whether we should ask people if they want a 'Norway option' or if they want a sort of 'Switzerland option' or do they want an option around CETA-plus [i.e. the Comprehensive Economic and Trade Agreement between the EU and Canada] and all that kind of stuff and that kind of conflates the question on whether or not you want to leave with a deal or no deal, the question about how you manage withdrawal in the first place with the question of what would then follow in terms of our future trading relationship with the EU.

Ian: And also something that's not necessarily in the control of the voters making that decision.

Kieran: Absolutely, yes. I mean what's the point?

Ian: You don't necessarily get to join EFTA [the European Free Trade Association] just because you want to re-join EFTA. The complexities around that are just phenomenal and one of the other complexities, not just the question, which really is key to what decision might be asked [of the people] but the other aspect of it is who is actually going to be asked the questions? So who would be the franchise? Would we be just going to the same group of people as the 2016 referendum or are people talking about a different franchise for this referendum?

Kieran: The one that we used in 2016, the basis for it was the Parliamentary election franchise so that's UK, Irish and Commonwealth citizens over 18 years old, resident in the UK and entitled to vote together with UK citizens who have been living abroad for less than 15 years.

So we start with the Parliamentary franchise, that was the basis for who voted in 2016 but there was a couple of tweaks made to that. For example they allowed Lords, members of the House of Lords, to vote in 2016, they are not in the Parliamentary franchise and they also allowed Irish and Commonwealth citizens resident in Gibraltar to vote. So, it wasn't just as simple as saying "OK we will go to the Parliamentary franchise" that was actually correct.

That led then to a challenge by a WWII veteran Mr Chandler who took this all the way to Supreme Court saying that, his particular challenge was in relation to not allowing UK citizens resident in the EU who wouldn't be eligible to vote because they'd been away for more than 15 years. He said excluding those people actually breaks EU requirements around free movement and his whole thing was that they have a real stake in this because obviously Brexit impacts us ex-pats in the EU just as much if not more than UK citizens living in the UK. However the Supreme Court rejected that challenge, so I don't think you're going to see the extension of the vote to the ex-pats who've been living abroad for more than 15 years.

A trickier one is possibly whether you extend the vote to 16 and 17 year olds. We do that in Scotland for example, but we don't do it in the rest of the UK. I think you sort of hinted that in your question, the idea that if you do change the franchise from 2016 then you just allow people to say "well if remain wins, for example, it won because of some procedural jiggery pokery, the referendum has been fixed in some way because you've changed the franchise". It would seem more legitimate to just stick with the franchise that we had in 2016.

Ian: I think the interest is that there will be strong arguments for a wider group, there were strong arguments at the time of the 2016 referendum that people aged 16 and 17 would be, over the course of their lifetimes, most affected and so should be brought into the scope but it seems difficult to surmount those legitimacy arguments by having something that's radically different on the franchise point.

Kieran: I was going to say the other problem with that of course is the fact that the young people were more likely to vote remain.

Ian:Of course.

Kieran: Lots of the Remainers want the franchise extended to 16 and 17 year olds whereas people who are more in favour of Brexit don't. I don't think it's even possible to have much of a mutual debate on this issue because it's presented as a way to jig the referendum for a remain result.

Ian: It's very difficult to have anything that is neutral in terms of the franchise or the question, which does lead nicely on to the final point which is the thankless task the Electoral Commission has in trying to be the umpire on any potential second referendum. So are there any other factors that would need to be brought into account from the Electoral Commission's point of view?

Kieran: Yes, so the Electoral Commission has traditionally always complained about its powers to oversee referendums and elections and donations to political parties. I suppose that's not surprising because you know they're given their powers by Parliament and MPs are possibly not the best people to be voting on giving the Electoral Commission more powers to fine them so surprisingly the Electoral Commission feels that it doesn't have enough powers and it's probably not going to get anymore.

For example, it has a maximum fine of £20,000 which, whenever you compare it to the others so its regulators and whenever you think about the importance of the job that they're doing, doesn't seem to be that high. You also have the other problem that their regulatory framework isn't particularly well set up to deal with the rise of online campaigning and this is an issue that's arisen throughout western democracy, where you have lots of misinformation, fake news as it's called, lots of attempts to try and woo voters one way or the other through digital lanes.

The problem is that all of that kind of stuff has a potentially distorting effect but the Electoral Commission aren't really equipped to deal with it and it's an interesting question do we want tech companies for example to be making judgments in the boundaries of democratic free speech. It would be much more comfortable if we actually sort of had a coherent legislative framework for the Electoral Commission has the power to develop its own framework to make those sorts of decisions.

Ian: We are already seeing the tech companies unilaterally take certain decisions, I don't know if you've seen clips on YouTube recently but if they come from the BBC or ABC in Australia or any other public broadcaster they now have a grey strip under the video saying this comes from publically or state funded sources and you can see that the intention might have been to highlight things coming from Russia Today or Voice of America but it feels a little odd that they highlight the British Broadcasting Corporation but don't for example highlight Channel 4 but that is because YouTube itself has taken this decision and it's not one that necessarily people in the UK, if they were making those decisions, they would probably come to a slightly different conclusion.

Kieran: No absolutely, I mean there was some criticism of the BBC you will remember back in 2016 because they were trying to be very even handed and the criticism then was that they were giving an equal platform to robust arguments in terms of statistical backing for example against more spurious claims that some would say didn't have any backing. The BBC kind of had them presented on par with each other and some people said they shouldn't have done that they should have done a bit more and actually pick apart some of the claims that were made. That's why we now see the BBC doing its own sort of fact checking exercise where it does try and be a little more interrogative of some of the claims that are being made.

I mean it's interesting that you say that those sort of things on YouTube are labelled in terms of where they come from because of course that's one of the Electoral Commission's problems. With lots of the stuff online it's not obvious where it comes from. There was a body called the Independent Commission of Referendums which issued a report last July and one of the recommendations that they made in this space was that there should be greater transparency in terms of where some of the material online is actually originating from since.

For example, print ads and broadcast ads have to have imprints on them, they have to indicate the source for the material and the idea being that we should extend that requirement to online campaigning, online ads and materials. The other thing that they suggested was then putting all of these online campaign materials into a searchable repository that said when it was posted, who it was posted by, to whom it was targeted and how much was spent on it.

Ian: That's interesting because the print and broadcast requirements are so rigid, especially in the UK where you have party political broadcasts and other than party political broadcasts you don't have adverts in the same way that you might have in the United States.

Even on the print side, you don't get third party actors putting in print adverts without it being fairly clear where those come from. It just feels like on the digital platforms it's more of a wild west scenario but there's just no control or regulation and if it falls on the Electoral Commission to do that it's not set up or resourced or given the powers to do that in any way so then you do fall back on what each of the individual tech companies is willing to do to actually challenge any of this stuff.

Whatever the politicians or Electoral Commission do, the next issue will be a couple of steps down the line, you get the feeling that they're always going to be a couple steps behind the next stage of this information and just waiting for the videos where they have convincingly got someone saying something that they didn't actually say because they've managed to map the person saying something, that's going to be an interesting one.

Kieran: Absolutely, I mean I think in the regulation of every sector you always have this cat and mouse game where, you know, the regulator is always playing catch up to some extent and regulated entities are always thinking what they can we do outside of that regulated space and then the regulator has to again legislate for that where it doesn't like what's being done. Or put in place certain regulatory structures but that drives unwanted behaviours.

Ian: Well that's the interesting thing when you get these sort of unintended consequences. But that is plenty to think about in terms of the potential for a second referendum, there are a huge range of issues that would even need to be considered before it even became a viable option and there's certainly no sign at the moment that it's been put forward in the short or medium term to be an option.

Thank you Kieran for joining us on that.

Thanks for joining us on this Brexit podcast. If there's anything else you'd like us to cover, if there are any issues or aspects of Brexit that you are finding difficult to get your head around or perplexing and you'd like us to unpack them let us know.