Brexit: Is A Second Referendum A Possibility?

The possibility of having a second referendum has become embedded into the political discussion around Brexit. In this special Brexit podcast, Kieran Laird and Ian Chapman Curry discuss the issues surrounding having a second referendum and whether it is a realistic possibility as we approach 31 October.

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...