Public Law analysis: Kieran Laird, principal associate at Gowling WLG, explores the important unanswered questions surrounding the UK's departure from the EU and explains that legally there is no bar to a second referendum on EU membership.

Before the EU referendum, there was a great deal of speculation around the possibility of a second referendum. Is this option still (legally) on the table?

Interest in the notion of a second referendum has certainly not abated following 23 June 2016. A debate was held in the House of Lords on 7 July 2016 on a question put forward by Baroness King of Bow asking the government if it had made an assessment of the case for holding a second referendum. There will also be debate in the Commons on the day it returns from summer recess (5 September 2016) following a petition which has been used as a vehicle to call for a second referendum and was signed by 4.1 million people (and several automated bots, leading to the removal of 77,000 signatures). In addition, Owen Smith has stated as part of his bid for the Labour leadership that he supports another referendum.

Legally there is no bar to a second referendum. This is because the government is not constrained by the result of the referendum on 23 June 2016. When passing the European Union Referendum Act 2015 (EURA 2015), Parliament decided that the result of the referendum on 23 June 2016 is not legally binding.

In the Conservative manifesto prior to the 2015 general election-and at numerous points during the passage of EURA 2015 and the referendum campaign-the government made clear that the result of the referendum would be respected. However, such statements have no force in law and the courts would be unwilling to hold the government to them (see Caroline Lucas MP v Security Service [2015] UKIPTrib 14_79-CH, [2015] All ER (D) 104 (Oct)). The government can therefore hold a second referendum, which, depending on the form it takes, could potentially overturn the result of the first.

It should be noted that although there is no legal restriction on a second referendum, nor is there any legal requirement for one to be held, there have been some suggestions that a further referendum may be required under the European Union Act 2011 (EUA 2011). These are not persuasive, however, as EUA 2011 requires referendums on proposals to amend or replace the EU Treaties only in the context of the UK's continued membership of the EU.

With no legal bar and no legal requirement, whether a second referendum is held will be an entirely political question.

What would be the arguments for and against the idea of another referendum?

There are four forms that a second referendum could take, each with its own advantages and disadvantages.

The first option is that advocated by those who wish the same question to be put to voters again on the basis of the slim nature of the majority for leave, as against the importance of the constitutional issues at stake and the suggestion that leave voters were misled by statements made by representatives of the 'Leave' campaign. This seems unattractive as it seems like an attempt to undo an inconvenient result by going back and asking for the 'right answer'. It would be different were there to be some real and significant change in circumstances in the short time since 23 June 2016, which would suggest that the result is not still valid. There has not been any such change, however.

A second option is that floated by Dominic Cummings and Boris Johnson who previously suggested that a leave vote could be used by the UK to negotiate better terms of continued membership with the EU, which could then be put to voters in a further referendum. There are two issues with that position:

  • firstly, the majority of voters on 23 June 2016 expressed a preference to leave the EU. They did not vote for a renegotiation of the UK's terms of membership as that was not the question on the ballot paper. To read a mandate for renegotiation into the result would risk going against the expressed wishes of voters.
  • secondly, EU leaders have been clear-both before and after the referendum-that there will be no renegotiation of the deal secured by Mr Cameron prior to the referendum. The public statements from Brussels and other Member States, as well as the UK government's explicit gearing up for Brexit, make a renegotiation look increasingly unlikely.

A third option for a further referendum would be to ask voters to express a preference between the broad options for the UK's relationship with the EU following Brexit, such as:

  • joining the European Economic Area
  • opting for a Canada-like free-trade agreement with the EU, or
  • relying on the World Trade Organisation's (WTO) rules

The result could then be considered by the government prior to the commencement of negotiations. Given the complexities of the various options, the information given to voters would need to be very clear in order to allow choices to be made between them. Expectations would also need to be very carefully managed by making clear the advisory nature of such a referendum as the government would need a free hand to change its position as negotiations developed.

As an alternative, the final option would be to have a further referendum on the deal negotiated by the government once it is finalised. This is the option that seems to have the greatest currency at present. It formed the basis for debate in the House of Lords on 7 July 2016 and is the option advocated by Smith. However, careful thought needs to be given to what would be presented to voters as the alternative position should they reject the deal.

In similar vein to the Cummings and Johnson option, could such a rejection be used as leverage to gain a better deal? It is difficult to see what incentive the remaining EU Member States would have to grant anything further-if no better terms were offered following the rejection of David Cameron's settlement to keep the UK in the EU, why would better terms be offered following a rejection of the terms on which we leave? It may be remembered that in July 2015 Greek voters rejected a bail out deal in the hope of securing a better one, only for the original deal to be signed seven days later once the Greek government realised that it had no leverage to overcome the intransigence of the EU institutions.

This poses the important question of what happens if the voters rejected the deal with no prospect of a better one, and it is here that legal considerations re-enter the picture. Article 50 of the Treaty on European Union (TEU)-which sets out the process for leaving the EU-contains a two-year timeframe within which to negotiate a deal. Although that timeframe can be extended, there is no requirement under Article 50 TEU for a deal to be done and if voters reject what is on the table, or time runs out, the UK will simply exit the EU without anything in place. This means that we would revert to trading with the EU on the WTO's most favoured nation tariffs.

Would the choice at the referendum therefore be between the deal on the table and the WTO's rules? The only alternative would be for voters to choose between the deal on offer and the prospect of staying within the EU.

If voters rejected a deal could the UK legally halt the withdrawal process under Article 50 TEU and remain in the EU?

Under Article 50 TEU, a Member State that wishes to withdraw from the EU first makes a decision to that effect and then notifies that decision to the European Council. That notification acts as the starting gun for the process of negotiating terms of exit and the withdrawing a Member State's ongoing relationship with the EU. The withdrawing Member State then leaves the EU either when the deal it has negotiated takes effect, or two years after the date of the notice (or any extended period)-whichever is earlier.

Article 50 TEU does not explicitly address the possibility that, having issued a notice and initiated the process of withdrawal, a Member State could cancel that notice before it had left the EU. It is certainly arguable from the construction of Article 50 TEU and the position in international law that a Member State's right to change its mind before it has left can be implied.

However, in the absence of an express provision allowing for a change of heart, such an interpretation by implication could never safely form a basis for action-the UK should not trigger Article 50 TEU on the basis that it could later change its mind. If all other Member States consented to a reversal out of withdrawal there is unlikely to be any problem, but in the absence of consent the matter could end up before the Court of Justice of the European Union. If that happens the outcome would be difficult to predict given the flexible approach to interpretation taken by that court.

Even if, in law, the UK can unilaterally halt the Article 50 TEU process, the political ramifications of doing so would be immense. It would be extraordinary for the UK to force the EU institutions and the other 27 Member States to undertake intense negotiations spanning a period of years only to announce at the end of it all that it wished to go back to the way things were at the beginning. It is difficult to envisage the other Member States being happy to carry on as if the intervening years of negotiations had simply never happened-particularly if those negotiations prove tense-and it is all the more difficult to see how the UK could go back to the position of influence it enjoyed in shaping EU policy. If consent was forthcoming, it is likely to be offered only on the basis of concessions on the UK side, such as the loss of the rebate.

In this scenario we could therefore be in the position that if we had voted to remain on 23 June 2016 we would have improved our position in the EU through the deal negotiated by David Cameron but having voted to leave and rejected the deal negotiated under Article 50 TEU we ended up remaining on worse terms than previously.

On the basis that there is no legal bar to a second referendum, what legal steps would be required for one to take place?

Any form of second referendum will require fresh legislation to be passed by Parliament as EURA 2015 made provision only for the referendum held on 23 June 2016. This does of course mean that there will need to be political support for the idea. Thus far, this seems to be lacking on the government side.

In its response to the petition signed by over 4.1 million people the government repeated David Cameron's statement that 23 June 2016 was 'a once in a generation vote'.

In her response on behalf of the government during the debate in the Lords on the case for a second referendum on a final deal, Baroness Anelay pointed out some of the problems mentioned above. Previously, in her concluding remarks to the more general debate on the referendum result held on 5 and 6 July 2016, she reiterated David Cameron's assertion that there should not be a second referendum because that would break faith with the decision made by the public on 23 June 2016.

However, it is not Mr Cameron's views that now matter, but those of Mrs May. In her speech on 11 July 2016, setting out her case for the Tory leadership, Theresa May stated that 'Brexit means Brexit'-there would be 'no attempts to remain inside the EU' and 'no second referendum'. Upon taking up the reins as Prime Minister, she has quickly translated these sentiments into action with the creation of a fully-fledged department headed by the new Secretary of State for Exiting the European Union, David Davis and a new Department for International Trade headed by Liam Fox. Two new ministries premised on the idea of Brexit is surely a strong indication of the new Prime Minister's intent to see it through.

The government's current position is that it can use the royal prerogative to trigger the process of withdrawal under Article 50 TEU without recourse to Parliament. Its power to do so is currently the subject of litigation, which seeks to establish that the decision to trigger lies with Parliament. Entrusting the decision to Parliament will leave the pro-EU majority of MPs with a potentially difficult choice-to either vote in line with their view of what is best for the UK (as the Supreme Court has indicated that they should (Moohan v Lord Advocate [2014] UKSC 67, [2014] All ER (D) 186 (Dec))) or give effect to the view expressed by their constituents.

In the face of the choice between conscience and re-election, the option of putting the matter back in the hands of the people through a second referendum may seem attractive.

Notwithstanding the government's response to the recent petition-and the fact that it was framed before the 23 June 2016 and actually called for amendments to be made to the rules governing the referendum which has already taken place-the number of signatures has led the Petition Committee to schedule a debate on 5 September 2016. That debate-which will take place at a suitable remove from heated initial responses to the leave result-will be an interesting test of the possibility of a second referendum in whatever form that may take.

This article was first published on Lexis®PSL Public Law analysis on 27 July 2016. Click for a free trial of Lexis®PSL.