The European Court of Justice’s announcement earlier this week means the odds of stopping Brexit have changed but now new hurdles loom.
The course of Brexit – or of trying to stop it – never runs smooth. This week we saw Theresa May bottle a vote on her deal, John Bercow bottle an effort to force a vote on not having a vote, and Jeremy Corbyn bottle a vote of no-confidence in the government.
And that was just Monday. But that wasn’t the only Brexit-related news on Monday, another significant development will almost certainly turn out to be the culmination of the European Court of Justice case headed by Jolyon Maugham QC.
That decision, handed down on Monday, ruled that the UK does have the right to unilaterally revoke Article 50, provided parliament votes to do so, and its done in a spirit of sincere cooperation.
This changes the odds of stopping Brexit markedly: if the EU’s view that to revoke Article 50 would require the unanimous consent of all 27 other member states, there would be no guarantee the UK could remain in the EU on its existing terms. Countries could have demanded concessions on fishing, or territory (think Gibraltar), or on the UK’s budget rebate.
Those concerns are now gone: if we want to stay in the EU under the deal we had before, we can. That’s a huge hurdle for the People’s Vote cleared – and given the deadlock elsewhere in parliament, it is clear that a second referendum is becoming more viable by the day.
That means it’s time to get real, and to have some serious conversations to work out some of the problems with a referendum. Given the chaos a poorly thought through referendum sought by Leavers has wrought on the country over the last two years, for Remainers to then do the same would be unforgivable. We have seen the consequences, so if we are to hold another vote, we need to do it better.
This will mean facing some uncomfortable choices, and accepting some uncomfortable compromises. It also means clearing a range of technical hurdles – some of which have been discussed in policy documents and reports buried here and there, but which now need to be openly acknowledged and lived with.
The first is that to hold a second referendum, we will need an extension to Article 50. However much we’d like to pretend otherwise, a second vote would be hugely controversial and could easily face legal challenge.
That means it needs to be held in a way that’s above reproach, and that means the process to get to a referendum will take about six months. That need not be a problem: this is the one reason the EU has made it clear it would be happy to consider an extension to Article 50 – so we should admit that we would seek this to hold the vote.
That’s the easy bit out of the way. The hard bit is working out a question, and how to ask it. Anyone who tells you the question for a second referendum is easy has not thought about it enough, and should be ignored as deluded or dangerous. Working out the question is an almost intractably difficult problem.
Perhaps the most obvious question – to those of us inclined to Remain, at least – is a binary option between Theresa May’s deal and not leaving the EU. This has the benefit of simplicity, and handily is also a vote option which appears to lead to an easy and romping victory for Remain.
Case closed? Not so fast. Leaving aside the issue that May’s deal may already be dead, this choice leaves out an option which polls far better than the deal, and neck-and-neck with remaining: no-deal. In a recent poll offering all three options, remain and no-deal each scored just over a third of voters, with May’s deal well behind with around a quarter.
There are very good reasons to keep no-deal off the ballot: it would be an act of spectacular national self-sabotage never seen in living memory, and could spell disaster for millions of people. But it is also an option which many people want – or at least think they want.
Keeping it off the ballot would be seen as an act of deliberate subversion by an elite to prevent the people voting for something which the elite did not want. Even worse, that narrative would be at least partly true. Leaving this option off the ballot would threaten both the actual and perceived legitimacy of the vote – especially if it affected turnout, or attracted a boycott.
If we’re considering Brexits other than May’s deal, we do also have to consider whether the actual alternative options on the table – a Norway-model soft Brexit, or a Canada-style hard Brexit – should go on the ballot, given they are actually viable deals.
This range of options shows why a referendum on a topic like Brexit is a bad idea: unlike many issues put to such votes, it is anything but binary, and when we face a range of nuanced choices, the shortcomings of referendums become all too clear. However, given we already made the mistake of holding one such vote, it may be that another is the only way to stop it.
Given these range of options – and the closeness of some of the polling, and importance of its wording – the system under which a referendum is held could decide the vote.
We could have a three (or four or five) option vote where whichever outcome comes first wins. We could do the same, but allow people to rank the options by preference.
We could have a ‘Leave’ versus ‘Remain’ vote, with a second question on the paper of what to do if we leave. We could even have a ‘Leave’ versus ‘Remain’ vote with a second vote a few weeks later to decide how to leave, if Leave won.
Problematically, the choice of which system we use could easily decide which outcome wins – and none is intrinsically better than any other: some have the benefit of simplicity, others of comprehensiveness. Even a mildly complex ballot will confuse some voters and lead to errors, which can lead to a lack of faith in the outcome. This will be tricky territory.
And then we come to Ofcom: how does the regulator balance timings in such a vote? Does each potential outcome (Remain, Norway, May’s deal, Canada, no-deal) get equal broadcast time? Or does Leave have to share its time among multiple outcomes? The answer to this question may be shaped by the structure of the ballot paper.
But again, to get a straightforward and fair decision that would be above legal challenge and legitimate backlash – beyond those who will cry betrayal at anything that moves – isn’t simple, and we shouldn’t pretend it is.
That’s the short version of the structural questions we face as we try to make the once-distance hope of a People’s Vote into a reality. There’s then the matter of winning the vote.
We will face everything we heard last time, with the additional overtones of betrayal.
It will be an angry and difficult campaign, and winning it will by no means be a done deal: the polls might look good for Remain now, but they looked good for Remain in April 2016, too.
The story Remain told last time did not appeal to a country eight years into a pay freeze (or at least no real wage growth) and six years into austerity. There is little reason to believe those lines will play any better with a nation a decade into a pay freeze and eight years into austerity.
Telling voters they were fooled is unlikely to change their minds, however sincerely we believe that to be true. Saying the vote was stolen – whether by Russia or by someone else – won’t do the job either. We need a story to tell that’s more inspiring and more hopeful than ‘don’t take this risk’.
We don’t have that yet – and that might be the biggest hurdle in our way so far. It would be a hell of a thing to fight so hard for a second vote only to lose it.