Monday, 1 June 2015

An EU Neverendum: Should the UK keep voting on its EU membership?


Steve Peers

A recent press story suggested that supporters of the ‘Out’ side in the upcoming referendum are already planning to argue, in the event of an ‘In’ vote, that a further referendum must be held again within a few years. At first sight, it looks as if at least these ‘Out’ supporters expect to lose the referendum, and are planning to be sore losers at that. I wonder if that is a helpful message for them to send – but then it’s not my role to advise the ‘Out’ side on strategy.

But is it intrinsically outrageous to suggest that there should be a further referendum on the issue? The ‘Out’ side can reasonably argue that they are only copying the strategy of pro-EU politicians, who pushed for fresh votes in Denmark and Ireland after three referenda in those states voted down the Treaties of Maastricht, Nice and Lisbon, and repackaged the Constitutional Treaty after it was defeated in the French and Dutch referenda. In principle, that’s a fair point to make: but if the ‘Out’ side are going to make it, they can no longer criticise the pro-EU side for being ‘undemocratic’ when it pushed for repeat referenda. In fact, the anti-EU side already have form on this issue themselves – since they went back to the Czech Constitutional Court to challenge the Lisbon Treaty a second time, when they didn’t like the first court ruling. The judges weren’t impressed.

Repeated referenda are not unheard of in other contexts or countries: Ireland has had several referenda on divorce and abortion, and Quebec has twice voted on separation. Many Scottish nationalists also aspire to a second independence referendum in the foreseeable future. So I don’t think one can simply argue that referenda should never be repeated. But I do think that they should only be held in certain circumstances.

What circumstances are these? In my view, there are two: a significant change in circumstances, and the conditional nature of the vote. These two criteria may well be present at the same time. The first of these criteria justifies having a new vote on the UK’s membership now, given the changes that have occurred since the last vote in 1975: five major Treaty amendments and five enlargements of the EU, leading to much greater ‘immigration’ of EU citizens to the UK. The second Quebec separation vote was justified on the basis of the second criterion: Quebeckers voted ‘no’ to independence in 1980 on the premise that the Canadian constitution would be amended to address their grievances. Two attempts to agree such amendments then failed, and that was the rationale for having another independence vote in 1995. Some Scots argue similarly that promises of greater devolution to Scotland made in the 2014 independence referendum are being broken; and many Scots believe that if the UK votes to leave the EU while Scotland votes to stay, the first criterion would be satisfied.

How do we apply these criteria to the EU referenda? In all the cases where a second referendum was held, there were intervening changes in circumstances. There were Decisions and Declarations by the EU which directly addressed those concerns of the Irish and Danish voters who had voted ‘No’. The Constitutional Treaty was scrapped as such, and replaced by the Lisbon Treaty, which contained most of the same substantive text, but without the ‘constitutional’ trappings of the failed treaty which had outraged the anti-EU side so much at the time.

Applying these rules to the UK’s planned EU referendum, there would be a case for a new vote if there were intervening changes in circumstances, which directly refuted the basis for voting ‘In’.  Equally there would be a case for a fresh vote, if most or all of the case for the ‘In’ side was based on conditional promises of EU reform which then did not take place.

Of course, two can play this game. It must equally follow that in the event of an Out vote, there would be an argument for holding a fresh referendum on the basis of the same two criteria. Article 50 TEU, the ‘withdrawal’ clause, expressly provides that a State can apply to rejoin the EU if it leaves. It’s also arguable that a State can cancel its withdrawal request, although Article 50 is not clear on this point either way. Certainly it’s possible to suspend a withdrawal request de facto, by delaying the withdrawal date indefinitely. (See further my discussion of Article 50 here).

What would this mean in practice? Applying the first criterion, it’s possible that the remaining EU would be upset at the prospect of UK withdrawal so much that it offered a new renegotiation package before it happened. Or imagine that in the longer term, the EU changed profoundly, allowing for more restrictions on the movement of people and a greater number of vetoes for national governments and parliaments. There would then be a good case for holding a vote on rejoining. Applying the second criterion, there would be a case for a second referendum if the conditions set by the Out side were not satisfied in practice: for instance, if there were no satisfactory trade deals with the remaining EU and many third States, or if the UK still had to pay a price in return for trade access (contributions to the EU budget, acceptance of EU regulation, the full free movement of people) which the Out side had claimed that it would not have to pay.
Art credit: M.C. Escher


  1. Just to emphasise this is already the second Brexit referendum. So after this, the next one isn't due until 2055. Oh and personally, I'm voting the same way as last time.

  2. Worth pointing out:
    - we don't have regular (even one) referendum on membership of the UN, NATO, WTO, etc
    - the cases where Ireland and Denmark voted, at their own suggestion, a second time after gaining concessions or clarifications, were cases where every other member country had voted in favour, so a minority of one country blocking it would have caused a problem in terms of respecting the democratic choice of the overwhelming majority

  3. I think you have missed the main point about a call for a second referendum - that being - this one is not fair.

    The call has always been for a free and fair referendum, Cameron is not offering that, in fact he is doing everything he can to ensure we vote to remain in.

    The question on the paper is not actually the real question because that involves a so called renegotiation, which will form a major part of the governments campaign. Also it ignores the reality that the EU is already following its agenda to ever closer union. (I note we have exchanged views on this before, I do not believe we will be allowed further referendum to control this deeper integration)

    The government should not be campaigning at all, yet as we see it is going to use public money to campaign right up until referendum day. Apart form government and EU spending because of the rules the Yes side will once again be allowed to outspend the NO side by a very big margin, in 1975 that was by a factor of 10 to 1.

    The EU calls for further referendum because the people got it wrong first time and democracy cannot be allowed to stand in the way, the difference is those wanting to leave the EU are calling for one because this one will not be fair.

    1. I agree that the funding should be fair, I would hope that the Election Commission issues guidance as to how to apply the law (the Referendums Act 2000) and that this is followed. But I don't think it's inherently unfair that Cameron calls for an 'In' vote (if that's what he does). Would you expect the Prime Minister to be neutral? The content of the renegotiation (when and if it's completed) is obviously going to be part of the debate over whether to stay In or not; that's hardly 'unfair' in itself either. The UK's own law requires a referendum regarding any Treaty amendment that transfers powers from the UK to the EU, or adoption of the euro or Schengen; there's no way that the Conservative party would allow that to be weakened (and the Labour party support it too). So the idea that 'ever closer union' in any significant sense would be foisted on the UK is scaremongering by the 'Out' side. Finally, the 'EU' itself is not (or at least not yet) calling for a second vote (unlike some on the 'Out' side); my discussion of that point in this blog post is just personal speculation. It's fascinating that you criticise the 'EU' for wanting a second referendum as being undemocratic, having called for a second referendum yourself. Aren't you the one anticipating that the 'people got it wrong first time'? Indeed well before any country held a second referendum on any EU treaty amendment, the 'Out' side that lost the 1975 referendum were arguing (well before the later significant changes in the EU) that the 67% vote of the British people should be overturned by a parliamentary 'majority' elected by maybe 40% of the public, who would also be voting on many other issues when selecting a government. It seems you believe that anything the 'Out' side do is necessary democratic, while anything the 'In' side is inherently undemocratic, even when those two things are essentially identical.

    2. I personally am not asking for a second referendum, I was responding to the arguments offered in your post, I do try not to personalise my comments as I find that gets in the way of reasoned debate.
      I compared the motivation for the EU demand for second referendums and the call now from some in the out camp. One is making the people vote a second time because the EU did not like the answer and is thus anti-democratic, as the elites in control refuse to accept the will of the people, whom they would much prefer were not asked in the first place. The other is asking for a free and fair referendum and saying unless there is it will not settle the matter. Would you not agree that it would be anti democratic to deny a free and fair referendum.
      Perhaps if the question was - do you accept the re-negotiation package - you might have a point but it is not. The Government already has the power to either remain in or to leave the EU, so why ask the people if you are then going to use all the power of government to gerrymander the answer. The other point is the government will be using public money thus massively adding to the pot for the Yes side.
      As I said I note your point about the present referendum lock however unlike you I do not think it will do anything meaningful. I say this because its trigger is in the hands of the government of the day who will be the ones to decide if they think the transfer of powers is relevant. I also point to the transfer of powers that have already happened since 1975 without any government thinking it should ask the people. I also understand that as the government put the referendum lock in place it can also remove it and would quite likely take a yes vote as evidence that the people want to remain in the EU and are happy for closer political union.
      I think we usually get the truth from our European cousins, they understand fully that Cameron is using this referendum to close down the debate, I believe the phrase used was to 'dock' Britain permanently to Europe.

    3. I didn't personalise my comments, I just addressed you directly when answering your points. Just as your initial comment started by saying 'you have missed the point'.
      I agree that we ought to have a 'free and fair referendum' but it's far from clear as it stands that we won't have one. As I said, there are rules on referendum spending in the 2000 Act, do you think that these rules are inadequate or that they won't be enforced, or what exactly? We haven't even had the Electoral Commission advice on them yet.
      UKIP has been picking up votes at every level and there are more 'Out' Tory MPs than before, so it's hard for me to see evidence of a conspiracy theory that suppresses those who want to leave the EU.
      It's a bit odd to criticise the EU for lying and suppressing democracy then claim it's telling the truth whenever a quote from Juncker fits your agenda.
      I don't see why the question should be 'do you accept the renegotiation package'. Some might vote 'no' because they preferred the EU as it was before, some because they think Cameron should have asked for more, some because they want a straight 'Out'. If the 'Out' side then claimed that all the 'No' votes were votes to leave the EU, that's far more biased than anything actually planned for the Referendum.
      The trigger for the application of the European Union Act 2011 is not just up to the government, there can be a judicial review of its decisions. The 'government' can't remove the referendum lock, only Parliament can. How likely is a Tory majority to do that? Labour and the LibDems (don't know about the SNP) support the lock too. I would be happy to entrench it in a written 'higher law' constitution, but that's not on the agenda. As with previous Treaty amendments we can expect the 'Out' side to bring challenges. Back in 2001 William Hague said we would be tricked into joining the euro, how did that prediction pan out?
      It does look to me is that you dismiss the public vote whenever it goes in a way which you don't like and call for repeated referenda in those cases - exactly what you accuse the EU of doing. In each of the 'second vote' cases there was a decision or declaration or Treaty revision which changed what people were voting on. And again, the 'EU' is not suggesting that the UK hold a second referendum; all this is only my personal musings on when *both *sides (I try to apply the same criteria to each of them equally) could legitimately ask for one.

    4. Maybe I am playing devils' advocate here, but I have just read both of your opinions. I am an OUT voter, but not because of any propaganda from either side. My reasons are selfish and personal, primarily, but this has led me to take a wider view and nothing can persuade me to vote IN. Re: The above debate between yourself and the good gentleman, I think neither of you are being objective. I understand your (SP) arguments from a legal standpoint. As is common knowledge regarding the Irish, when they eventually voted YES, the promises made to them were broken. Richard Corbett argues that one member voting against the majority would upset the "democratic choice of the overwhelming majority". That in itself tells its' own story. We are allowed to follow the will of our sovereign nations' people, or we are not. To me, in my humble opinion, this does not give any sort of clarity, and only strengthens the belief (rightly or wrongly) that the EU is some kind of dictatorship that has supreme power over member states. In situations such as the Irish issue, people need total clarity as to who is in control. If the EU is in total control, then it should be made apparent to every member state and they should then decide if they wish to give up their sovereignty. If the member state is to retain its' sovereignty, then that member state should not have to go along with any legislature that its' electorate does not vote for. For me, that is the conundrum of the EU plan. The problem with the majority vote as mentioned by Richard Corbett, is a fundamental one. Whether we like it or not their are inherent cultural and historic differences between the nations of the EU. In some ideological utopia (as the Greens would want) then we would all be the same albeit with little cultural differences. Even the tiniest issue is viewed upon differently between an Eastern European and a Scandinavian. However much people like to think that even the tiniest difference can be overcome, it is in fact much more difficult in reality. But, I have digressed.
      I totally agree that Cameron should be allowed to voice his opinion, but he should not be allowed to attempt to sway the vote in any way. His manifesto said that he would give a referendum. It did not say he would give a referendum on the basis of his party voting to stay in. Whether the europhiles like it or not, the GE was people voting for policies that affect the UK and not the EU. It is ridiculous to suggest that the average voter knew that the GE would be about the EU (I know you have not done this). I do not think it is scaremongering to suggest that the EU, may in the future, push towards greater integration, and in the event of that, then it is correct for the British people to have another referendum. Equally if the vote was for OUT, it is not unreasonable to have another referendum after 5 years to rejoin the EU. The world changes at a rapid pace and to wait another generation to vote either way is absolute stupidity.

    5. Thanks, Nicusha.
      First of all, I think it's common knowledge that the promises made to the Irish were NOT broken. In the case of Nice, the main promise was that the EU would not form an army. And it hasn't. In the case of Lisbon, the EU promised to limit the number of Commissioners and to add a Protocol to the Treaties. They did both.
      Secondly, I don't agree with Richard Corbett on this, when it comes to Treaty amendments I think each Member State should be seen as separately exercising national democratic legitimacy.
      Thirdly, I agree in principle with the argument based on national democratic rule you are making, but I think that it has conundrums of its own. States have to make agreements to address joint concerns; outside the EU there will be agreements between executives subject to less democratic scrutiny, and the UK would de jure or de facto have to accept EU rules which it had no role in forming.
      Finally, it's not realistic to say that the Prime Minister shouldn't be allowed to 'sway the vote', of course he is going to try to convince voters of his opinion. He's not trying to force all Tory MPs to back an 'In' vote, just the ministers. I think it would be fairer to let ministers support the Out side if they wish. It may well backfire or he might do a U-turn. But that's a matter of internal Conservative party politics, not the EU's decision. The 1975 Labour government let ministers make their own decision.

    6. I don't think I did accuse the EU of lying, in fact it is usually quite open about its intentions, it is written quite clearly in the treaties that its aspirations are for ever closer union of the people. Also its leaders are quite open and honest about what is intended, from Walter Hallstein`s “The abolition of the nation is the European idea” to M. Jean Monnet "We are determined to unify Europe and to unify it quickly. With the Schuman Plan and the European Army we have laid the foundations on which we shall build the United States of Europe-free, strong, peaceful and prosperous”. To Jean-Claude Juncker comment about Cameron's intentions.

      The lying is evident from our own leaders and those who support the EU in this country, those who still try to insist the EU is some sort of trading organisation that has gone a bit to far. Not content to argue for the project for its own sake as did Monnet, they continually need to lie about it, to pretend it is something it is not, that a bit of tinkering around the edges will sort everything out.

      That it is anti democratic is clear, its forefathers believed in a technocratic style of government and built it that way, it could never have reached this level, if democracy had been allowed to interfere.

      The point about the referendum lock is it in the power of the government not the people, the reason I do not trust it is based on the evidence of history.

      You make an interesting point with regard to the question, I would suggest that there is no option for the EU in its present form because the EU is not a fully formed organisation. It is being forced to change by internal pressures to do with the Euro and external pressures concerned with its foreign policy, already we are hearing calls for an EU Army and a joint response to the Mediterranean immigrant problem.

      I feel the question should reflect the reality of the EU, what it is and what it intends to become and not the lie that somehow David Cameron can change the whole direction of the project just for us.

      I feel I have explained the difference between the EU demanding a new referendum and the call now, from some, for a fair referendum. I do not see an equivalence one is the power forcing its will on the people, the other is a cry for fairness from the powerful and making the point that unless the referendum is fair it will not settle the issue.

    7. Thanks for your reply. I am fully aware that it is natural for Cameron to sway the vote. I suppose my main issue against that is that when Mr. Farage was touted as the leader of the OUT vote (I am against that even though I am a UKIP member), the consensus amongst the press and politicians was it should not be about party politics, and therefore it would be incorrect that Mr. Farage should lead the OUT vote. This is why, many people (with whom I have spoken) are viewing Cameron as being duplicitous in this respect. It may not be the case, but as any rational person knows the truth is not always represented properly. From an objective viewpoint I think Cameron has made a faux pas in advocating scrapping the purdah, and in respect of scrapping the cap on campaign funding. This also applies to "ordering" his ministers to support the IN campaign. In a rational, and logical, debate a person relays the facts, and arguments, and then allows the audience (in this case the electorate) to decide for themselves. By appearing to sway, or influence the vote, it may appear to be underhand, especially at the present time with the FIFA corruption scandal. I think that Cameron would have been better to create a level playing field and let the IN and OUT arguments speak for themselves. All he appears to have done is make any IN argument weaker.

    8. Nicusha, the press is reporting that Cameron has done a U-turn already on the ministers' point. I think the concern about Farage leading the Out vote is a concern from the Tory and non-aligned part of the Out side that he might deter more voters than he attracts, the so-called Farage paradox. I'm not sure that this really exists; just because the 'In' vote appears to go up as UKIP gets more popular, does not necessarily mean that the latter causes the former. By the way I think that Cameron might well repel some voters away from the 'In' side.
      Ken, again you quote selectively, ie the most swivel-eyed Euro-federalists. (And while the founding fathers were technocratic most federalists today support some type of EU-level democracy). I could just as easily quote the looniest social media ranters ('the EU is worse than the Nazis' etc) and claim that there's only one type of 'Out' voter. That's silly - there's a whole spectrum of reasons and arguments for voting 'in' as well as 'out', most of them not extreme at all.
      To some extent it comes down to a difference of view as to what the EU and UK would agree after Brexit: if I thought the UK could get 100% of its probable negotiating objectives (full free movement of goods, services, capital; limited free movement of people; no payment to EU budget; opt-out from any regulation we don't like without affecting trade access) I would support it too. But if the EU won't give us things as a member, why would it give them to us as a non-member? It's easy to criticise the EU but less easy to paint a convincing picture of a probable better alternative.
      It's a fact that the referendum lock can only be changed by parliament and the Tory party MPs will hardly vote to amend that, no matter how many times you say the 'government' will decide.

    9. Thanks again. My final point. I am against Nigel Farage as the OUT leader for one reason and one reason only. The fact that the biased media (they are all biased both ways) is that they will attempt to vilify him as being a racist and insular thinking. Whatever people think of Mr. Farage, it cannot be disputed that he is a powerful orator and statesman who says what he thinks and believes in, rather than just trying to appease the masses. In other words a rarity in modern day politics. If people took more time to listen to his message they may understand him better. He is also, whether anybody likes it or not, the best placed person with an understanding of the machinations of the EU. However we live in a society of wannabee celebs, reality TV, facebook etc. which leads to the average Joe blindly following what is popular (see the racist bigot Jeremy Clarksons' popularity for instance). I also do not think that if the vote is to stay in, that the issue of EU membership will go away. In fact UKIP will gain from an IN vote. The issue that the majority are afraid to mention (because of being PC) is one of immigration. I am not going to write an essay of why this has directly affected me, but it is beginning to effect more and more people on a daily basis. And that is only EU migrants I am talking about. I will not be persuaded, either, that if the EU did not exist, with open borders and free movement that the med crisis would be so endemic. There are numerous websites informing these migrants the easiest way to get into Europe, which countries to head for, where there are no border controls etc. I accept that western intervention in Syria, Iraq, Libya has helped escalate this crisis, but the simple fact is that if Italy and Greece were totally sovereign states with no EU open borders then this crisis would not exist on such a scale. This is not the place to voice my opinions on solutions to this crisis. Whilst our government, past and present, along with the EU maintain lax border controls, the issue of migration, both EU and non EU, will not go away. I am certain you understand the arguments about immigration. This is the real issue regarding the EU referendum, whether we like it or not. As Mr. Farage told in his address to the European parliament, there will be a rise in nationalism and violence eventually. I for one do not wish to witness that, but sadly it is the inevitable outcome. Unless this tiny island can take back control of our borders we are only heading one way.

    10. Honestly, I think that most of the people who don't like Nigel Farage simply disagree with what he has said or the way in which he's said it, and vice versa for his supporters. We see so much of him that most people have seen or read his comments unmediated by the media, and can make up their own minds. I can point to counter-examples like the media overstating UKIP results in the 2014 local elections (UKIP only won control of its first council in 2015). And being an MEP doesn't make him the single expert on the subject of the EU. Other MEPs have served as long or longer than he has, and have a different perspective.

      As for the impact of EU open borders on asylum, the last large surge was in the early 1990s during the Yugoslav civil war, before the Schengen system was even in place (Schengen became operational in 1995, the war ended in 1994). So it's hard to see how EU policy (rather than the situation in origin and transit countries) is causing the problem. Look at the Rohingya people fleeing Burma despite Australia's famously tough policy and the clear lack of any country willing to rescue them in the sea.

  4. I had missed the press story that Cameron wants to alter the funding rules for the EU Referendum, probably you were both referring to that? I do disagree strongly with changing the rules for any particular referendum, because that's bound to look unfair. Press story here:

  5. Steve thanks, I was quoting those two to indicate I did not think the EU lied about its intentions, you seemed to think I thought that.

    However I do not base my arguments simply on the words of the founding fathers as you can trace the same sentiments right though to the present day. But more than that the EU is being constructed to be a technocratic organisation, there is however presently a power struggle at the centre as some of the nation states try to hold onto their power base. Debating the EU is difficult when we are constantly meeting a total denial of the reality, it is as if one is looking at a totally different organisation also most arguments for the EU are not actually arguments for the political organisation but for the single market.

    Cameron intends to use the referendum to keep us in, he said so himself, and Junker confirmed it last week. So his negotiation is for home consumption not intended to archive anything that is important. Most of what he has so far mentioned he can get already without EU approval and we do not need opt outs from treaty obligations if we are not members of the EU.

    I think the main point about the initial EU exit is a return of political control to Westminster, whilst at the same time protecting trade and our interests which probably means EFTA and the EEA which in turn means accepting free movement of people as well as goods and services. You are right though we do need to paint a picture for a future ex EU. This is achievable but nobody is making the case, there is not one but several different scenarios being touted by different organisations.

    On the initial neverendum point perhaps this from Professor Vernon Bogander might help clarify why some are suggesting another referendum.

    One Purpose of a referendum is to secure legitimacy where parliament alone cannot secure that legitimacy. For that legitimacy to be secured the losers have to feel the fight was fairly conducted.

    1. I see that the Elections Commission has today offered advice on a number of points in order to keep the referendum fair. I hope its advice is followed because I agree entirely that the referendum has to be conducted fairly: