Could the ballot paper of the referendum on the terms also offer a different Brexit?
London4Europe Committee member and former Home Office senior civil servant Michael Romberg looks at whether the ballot paper in the referendum on the terms should have an option for a different sort of Brexit to the one that had been negotiated. He concludes that the proposal is in practice unworkable.
In principle it would be possible to have three choices on the ballot paper: Remain; the Government’s Brexit plan as negotiated with EU partners; another Brexit plan.
For example, the petition that Parliament debated on 11 December 2017 called for such a three way choice.
It might make holding a referendum more attractive to those Leave campaigners who have worked out that Theresa May's Brexit does not mean their Brexit.
Would a three way choice be fair? Workable? And what would be the effects?
There are also two stage questions, including the Scottish 1997 devolution referendum: (1) should there be a Scottish Parliament? (2) should it have tax powers? But that is problematic if a voter’s hierarchy is for example (1) Parliament with no tax powers (2) no Parliament (3) Parliament with tax powers.
The nature of the third option
The requirement would have to be that the third option should be a worked-up concrete plan, that exists in pretty well the same degree of definition as the Government’s plan and that can be subject to the same degree of scrutiny and assessed to the same extent.
The third option should also not rely unduly on the goodwill of others. It would be reasonable to say that the UK would be a member of the World Trade Organisation (almost all countries are). It would not be reasonable to plan on the basis that it would after all be possible to be full members of the EU Single Market and also control immigration.
It would also need to be sufficiently different from the Government’s Brexit to be worth asking the question.
Who could produce a third option
The government would be one candidate. Civil servants can produce scenarios. But governments tend not to like giving real choices. And Ministers could hardly argue for it given that the Government’s plan is different
Or a campaign body or another political party could produce a proposal. It could not be something that was knocked together during a campaign, but would need careful preparation taking months. Leave of course had decades to put forward a plan for the 2016 referendum but did not do so.
There would need to be a way of assessing whether the plan was coherent and detailed enough to be put to the electorate. It is not easy to see who could undertake such a politically contentious task.
How would one vote
Options include first past the post, single transferable vote (STV) with second preference votes being treated as having the same value as first preference votes, and STV with second preferences being treated as having lower value than first preferences.
There is no obviously right answer. The choice would be criticised as advantaging other options. Whatever system was chosen, voters would have tactical decisions to make as well as deciding what is the right answer.
Moreover, the result might not be seen as conclusive if no one choice had obtained a simple majority at the first pass.
Although in theory it is possible to envisage a three way referendum, it is hard to see that Leave or UKIP (or Labour) could get their act together enough to come up with an alternative plan and work it up in enough detail that it could be assessed fairly. It would also be hard to assess whether they had in fact prepared such a plan, and to work out how to structure the referendum.
So while not impossible I do not think that this option works in practice.
There is a risk that with a two-way choice supporters of a different Brexit would urge voters to support the Brexit on offer with a view to modifying it after implementation. That is a legitimate democratic approach for electors to take – but risky if the different Brexit is contingent on the goodwill of others, and therefore might not be available. However, pointing out that risk will be a matter for the campaign.
If Remain won the referendum on the terms and Leavers believed that some other Brexit would have won then their remedy should be to try to gather support in the country to have another referendum with a different two-way choice. Tiresome, but fair. Democracy did not stop when Leave won a vote and will not stop when Remain wins.
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