One party, and one potential (although unlikely) party leader have called for a second referendum once the ‘deal’ for the UK leaving the EU is agreed. While it is laudable for people to want this, and understandable that pro-EU politicians would pin their colours to this mast, I think it is, regretfully, a red herring. Once the UK invokes Article 50 the UK is almost certainly leaving the EU, and a referendum on the final deal would be effectively pointless.
Article 50, par.3 of the Lisbon Treaty is very clear that:
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
So, once Article 50 is invoked, there are 3 possible outcomes:
- An agreement is reached, and the UK leaves the EU at the date at which it has agreed it will enter into force.
- An agreement is not reached within 2 years of invoking Article 50, and the treaties simply cease to apply to the UK. i.e., it has left.
- An agreement is not reached within 2 years of invoking Article 50, but the other 27 Member States agree unanimously to extend the 2 year period.
Let’s say that an agreement is reached within 2 years of invoking the treaty (which in itself is desperately unlikely). The UK would then have to tell the Council that it was agreed in principle, but could not be formally agreed until a referendum was held on it. We then have two possible outcomes. The referendum vote is for the deal and the UK leaves on the date it enters into force (a), or the referendum result rejects the deal. If the latter happens, then either (b) or (c) would apply
If (b) applies, then the UK simply leaves the EU without a deal. What about (c)? I think it is fair to say that it is extremely unlikely that, having had the UK put the EU and its Member States through 3 -4 years of uncertainty, massive financial and economic cost, and tortuous negotiations, that the 27 will be in the mood for throwing the UK a bone and extending the negotiating period. Why would they? They are already clear signs that the EU is accepting Brexit and trying to move forward with the EU. Why would they condemn themselves to more uncertainty and tortuous negotiations to help a country that has rejected them.
That’s on an EU-wide level. You also have the issue of individual Member States and groups of Member States. By then, Sarkozy may well be in power in France, having run partly on an anti-UK ticket. Merkel, the UK’s biggest advocate in the EU may well be gone. Spain will not be looking to play nicely now that they don’t have to respect internal EU niceties with the UK over Gibraltar. If the Eastern Member States feel they are being cajoled towards a deal that limits free movement for their citizens they will not agree to extend the time limit so it can be done.
That leaves two other possibilities. Firstly, there could be a referendum before the deal is finalised. This would be suicide for whichever government did it, as they would have no mandate either way if the deal changed. Secondly, there could be a referendum that included a “stop this insanity and remain in the EU” option.
If the Remain result won, then the UK would be in the position of having to try to withdraw their Article 50 notification. Legal opinion is split right down the middle on this. I’m not saying it’s not possible, but there would have to be agreement among all Member States that the process should be halted while the legality of this was sorted out, possibly through European courts if there were any legal challenges to it. So, hedging our bets on being able to do this is exceptionally risky. And why would any other Member State want to agree to this anyway. The UK has rejected the EU, pissed them about and then (probably) been absolute arses to negotiate with. Sarkozy (or any French President for that matter) would not want to go back to Paris and tell the people of France that it’s fine now, the UK have decided to stay and we’ve agreed.
The 27 would accept a PM telling them that Article 50 will not be invoked, if it is done in the next year. In return, the UK will have to put it’s tail between its legs and beg forgiveness for the shitstorm it caused, but this, and the 10 years or so of getting nothing it wants in the EU is still the least bad option on the table.
Once Article 50 is invoked, the UK is leaving the EU, and all of our efforts should be dedicated to making sure this does not happen.