Why the People’s Vote is not ‘the answer’

By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School)

Momentum seems to be building for a people’s vote. I argue here that there are a number of legal and political issues which need to be addressed before it is possible to decide whether a people’s vote is indeed ‘the answer’ to the mad Brexit riddle. My conclusion is that it is not.

The most common plea is for a people’s vote ‘on the final Brexit deal negotiated by the UK Government’. But, there are also calls for a people’s vote ‘if the Brexit deal is rejected by Parliament’. Scratch a little below the surface, and it becomes apparent that many of those who are now calling for a people’s vote are either uncertain, or perhaps deliberately vague, about the circumstances in which a people’s vote should be held. They are also uncertain, or again perhaps deliberately vague, about the nature of the question to be put to the people, the timing of the people’s vote, and indeed the consequences which should flow from such a vote. There are, as the Leave campaign should be able to testify, pros and cons for campaign groups who take this sort of stance. A vague plan might elicit support from a wide range of people. But then, it might turn out not to be able to deliver that which people were hoping for.

Calls for a people’s vote come from a variety of sources. The most enthusiastic voices are the ‘remainers’. They tend to see a people’s vote as an opportunity – perhaps the last opportunity – to stop Brexit, and to enable the public to vote not, as in June 2016, on the abstract idea of leave, but instead on the Government’s concrete Brexit plans. They are confident that while there was a small majority for Brexit in 2016, there would not, given what we now know, be a majority for any of the Government’s possible plans, or indeed for a ‘no deal’ Brexit. Recent polls support their claim. They have been joined by a number of other groups, who argue that there is a tactical political advantage to be gained (for the Government and the Labour Party) in backing a people’s vote.

As we all know, Article 50 was triggered in March 2017. In the absence of an agreement with the EU, the UK will, by operation of law, crash out of the EU with no deal in March 2019. If a withdrawal agreement is reached, we seem destined for a transition period, lasting until at least December 2020. There will be a non-binding political declaration on the future relationship accompanying the withdrawal agreement; but it is likely to be very vague. This is a first problem for the people’s vote campaign. It does not seem likely that we will have a clear sense of what our future relationship with the EU will look like at the time the people are asked to vote. The claim that ‘this time, we will at least know what we are voting for’, rings hollow.

The key question to be settled, by November, presumably well ahead of any possible people’s vote, is whether Theresa May’s Government will be able to reach agreement with the EU on the terms of the UK’s withdrawal. There are a number of possibilities.

Let us first assume that there is an agreement with the EU. The EU (Withdrawal) Act provides that it must then be endorsed in Parliament. Campaigners have argued for a people’s vote in this scenario; some, on the assumption that the deal is endorsed by Parliament, others, on the assumption that it is not. The question to be put to the people is whether or not to approve the deal. For some, the alternative is to leave without a deal. For others, it is reverting to membership of the EU. A three-option vote is possible, but brings many complications. The political stakes associated with the framing of the question would be huge.

The second scenario is that there is ‘no deal’. If there is ‘no deal’, many predict chaos. Here again, we might see a people’s vote. In this case, there will be no deal to vote on. The binary choice would appear to be between no deal, and revoking (or seeking to revoke) the Article 50 notification.

Already, it should be clear that there are substantial uncertainties about the people’s vote. What complicates things further is the simple fact that legislation is needed in order to provide for a people’s vote. A range of political considerations follows, which seem, to me at least, to indicate clearly that Parliament is extremely unlikely to endorse a people’s vote. I would very much welcome a discussion on the politics.

Let’s examine the above scenarios. In the first, there is a withdrawal agreement with the EU. There is also some aspirational language in the political declaration on the future relationship. Parliament endorses the deal. Why would it then call for a people’s vote? A majority in Parliament will have endorsed the deal. There is no reason for the Government, and its supporters, to put the successful deal to a people’s vote. And I can’t see how the Parliamentary minority opposed to the deal, which wishes to challenge the deal, could overcome the arithmetic, and succeed in passing legislation which puts the deal to a popular vote. The call for a people’s vote seems to rely on there being a number of MPs who are prepared to endorse a deal subject to a people’s vote, which they would not be prepared to endorse absent a people’s vote. That position is possible, but I doubt it is one to which many MPs subscribe. In this case, my conclusion is that, very much against the odds, the Government’s Brexit strategy will have been a success. The will of Parliament would simply be done.

If, in the alternative, Parliament rejects the Government’s deal, we would be in a very different place. We would, in fact, be in much the same situation as we would be in if the Government was not able to reach a deal with the EU. In both these cases, the Government would have failed in its Brexit mission; to reach an agreement with the EU and to get it through Parliament. Theresa May’s government would, to put it mildly, face intense criticism. The ERG wing of the Conservative Party would, presumably, urge her towards ‘no deal’ (or perhaps, towards a ‘harder’ version of the Brexit deal articulated by the Government). The Labour Party would, presumably, call for a general election. They may, together with some Conservatives, try to articulate a ‘softer’ Brexit deal, which, they might argue, would be accepted by Parliament and the EU. And, there are some, perhaps many, within both main parties, who would join with the smaller parties (and incidentally, with me) to argue that, as Brexit will have failed, we should (seek to) revoke the Article 50 notification and remain within the EU.

How would a people’s vote work here? I find it difficult to see why a majority in Parliament would be prepared to put the ‘failed deal’ to the popular vote. For that to happen, it would need the support of a number of MPs who have rejected the deal, but who would ultimately be prepared to accept it if it proved to have sufficient popular support. Again, this position is possible in theory, but not likely in practice. It is, I think, more likely that the ‘failed deal’ would not be put to the public. Thus, as in the case where there is no deal with the EU, the choice to be put to the people would be ‘no deal’ or remain. But, it is, to my mind, far from clear that the political scenario can, or should, be reduced to that binary question. More than that, it is also unlikely that Parliament would choose to put that binary question to the people. There would be intense pressure to seek to find a ‘better deal’, and various calls for both a Conservative Party leadership election and a general election.

Thus, in each of the scenarios considered above – that there is a deal endorsed by Parliament, that there is a deal rejected by Parliament, and that the Government does not reach an agreement with the EU – it is unlikely that the people’s vote will either be called upon, or be needed, to solve the Brexit riddle.

The core problem – which the people’s vote cannot address – is that the rival groups (the Government, the ERG and the Labour Party, among others) have yet to set out their Brexit visions. For many who are opposed to the Government’s stance, appeals for a people’s vote are, it seems, only serving to distract attention from the fact that they have yet to proffer substantive solutions. What is especially frustrating, is that there is no shortage of plausible outcomes to the Brexit riddle – from remain, through EEA, and Canada (plus), to no deal. Their merits have been much debated, but they have not been embraced by the main parties. Calls for a people’s vote are a dangerous distraction from the urgent task of preparing alternatives to ‘no deal’.

One such alternative is, of course, remaining within the EU. Those seeking that outcome should, in my view, be making the case for remain, arguing that the failure of the Government to reach a deal with the EU which attracts Parliamentary support, represents a failure of Brexit, which demands an end to the Article 50 withdrawal process. That case can and should be made without the need for a people’s vote.

This article originally appeared on the London School of Economics and Political Science website.