Steve Peers
A recent news report suggested that individuals campaigning for the UK to leave the European Union in the upcoming referendum are prepared to demand a second referendum if the outcome is to remain. On the surface, this appears to indicate that these “Leave” supporters anticipate defeat and are planning to contest the result. It’s unclear if this is a strategic message for them to promote, but offering strategic advice to the “Leave” campaign is not my objective.
However, is the idea of a second referendum inherently unreasonable? Those in favor of leaving the EU could argue they are merely mirroring the tactics of pro-EU politicians. These politicians advocated for additional votes in Denmark and Ireland after those countries initially rejected the Maastricht, Nice, and Lisbon Treaties. They also repackaged the Constitutional Treaty following its rejection in French and Dutch referenda. In principle, this is a valid comparison; however, if the “Leave” campaign intends to draw this parallel, they can no longer criticize the pro-EU side for being “undemocratic” in seeking repeat referenda. In fact, the anti-EU side has already employed this strategy themselves when they unsuccessfully challenged the Lisbon Treaty a second time in the Czech Constitutional Court.
Holding multiple referenda is not unprecedented in other situations or countries. Ireland has had several on divorce and abortion, and Quebec has voted on secession twice. Many Scottish nationalists also hope for another independence referendum in the future. So, arguing against repeat referenda altogether is difficult. I believe they should be held only under specific circumstances.
What are those circumstances? In my opinion, there are two: a significant change in circumstances and the conditional nature of the initial vote. These criteria might exist simultaneously. The first justifies the current vote on UK membership considering the changes since the last vote in 1975: five major EU treaty revisions and five enlargements, increasing the influx of EU citizens into the UK. The second Quebec secession vote was justified based on the second criterion: Quebeckers voted against independence in 1980 under the condition that the Canadian constitution would be amended to address their concerns. When two attempts to agree on such amendments failed, it provided the rationale for another independence vote in 1995. Some Scots similarly argue that promises for increased devolution made during the 2014 independence referendum are being broken. Many believe that if the UK votes to leave the EU while Scotland votes to remain, the first criterion for a new referendum would be met.
How do these criteria apply to the EU referenda? In all instances where a second referendum occurred, intervening changes had transpired. The EU issued Decisions and Declarations directly addressing the concerns of Irish and Danish voters who initially voted “No.” The Constitutional Treaty, which had angered the anti-EU faction, was replaced by the Lisbon Treaty, which retained most of the content but removed the “constitutional” aspects.
Applying these rules to the UK’s planned EU referendum, a new vote would be justifiable if intervening changes directly contradicted the basis for an “In” vote. A fresh vote would also be warranted if the “In” campaign relied on conditional promises of EU reform that failed to materialize.
Of course, both sides can utilize this approach. If the outcome is to leave, a new referendum could be argued for based on the same two criteria. Article 50 of the Treaty on European Union, the withdrawal clause, explicitly allows a state to reapply for membership. While not explicitly stated, it can also be argued that a state could revoke its withdrawal request. Suspending the request indefinitely by delaying the withdrawal date is undoubtedly possible. (For further information, see my analysis of Article 50 here).
What would this mean practically? Applying the first criterion, the remaining EU members, dismayed by the UK’s potential withdrawal, might offer a new negotiation package. Alternatively, imagine a future where the EU undergoes significant changes, allowing for tighter restrictions on the movement of people and more veto power for national governments and parliaments. This scenario would create a strong case for holding a vote on rejoining. Applying the second criterion, a second referendum would be valid if the conditions set by the “Leave” side were not met. For instance, if no satisfactory trade agreements with the remaining EU and other nations materialized or if the UK still had to contribute to the EU budget, accept EU regulations, and allow the free movement of people - conditions the “Leave” campaign claimed would not be necessary.
Art credit: M.C. Escher