Legal and constitutional experts from Oxford University and the University of Westminster say the government must hold a second referendum before the UK can officially leave the European Union.
However, constitutional expert Dr. Peter Catterall says the government will have to be challenged in court to force a second referendum on the eventual contents of a Brexit deal.
Pavlos Eleftheriadis, a fellow at law at Mansfield College Oxford, argued in an article this week that: “A new referendum on the relations between the UK and the EU is almost certainly required under the European Union Act 2011.”
This act requires a referendum under UK law before any change to EU Treaties can be passed — in effect, a change to the UK’s relationship with Europe. It was originally put in place to stop the creation of a European “super state” without the approval of the British people.
While the British public voted to leave the European Union, the exact terms of that exit and Britain’s future relationship with Europe are far from clear and Eleftheriadis thinks a second referendum must be held to approve the final deal.
The view chimes with the forecast of Deutsche Bank, which argued in a note earlier this month that a second referendum will likely happen to approve the eventual EU deal because the Leave vote won on a platform of “Taking back control” — the public will therefore want to have a say.
Dr. Peter Catterall, a constitutional expert at University of Westminster, told Business Insider: “The probability is the government will want to do a second referendum and they will want to make it clearer.
“This is about rule of law. The referendum was held under statute. The outcomes of this also have to be compliant with law, they can’t just be ‘Well, we’ll make it up as we go along.’ There’s probably a need to have a second referendum but other than the reasons stated by Deutsche Bank. There’s actually legal statements that require a second referendum [the 2011 Act].”
Dr. Catterall says the need for a second referendum could weaken Britain’s negotiating position with the EU, saying: “If you keep on having to go back to the country to justify things, nobody can ever negotiate with you.
“One of the things that used to happen in the 19th century is British governments used to say we can’t have treaties with anyone because we then have to go back to Parliament and get it ratified. What’s the point in negotiating a treaty which we then might find we can’t actually ratify?”
Dr. Catterall believes that the Tory party should call a referendum in the Autumn once a new leader is elected “so as to create a negotiating position.”
But he adds: “I think that’s still fraught with difficulties because you’d have to be very, very clear about what the question is and even clearer about what the answer is. And you’d have to be damn sure you’re going to get the answer you want because the risk is you’re going to get another cock up like this one.”
Dr. Catterall says there is a danger that Britain could be trapped in “never-endums” — a series of referendums as the public reject deal after deal that London negotiates with Brussels.
You’d have to be damn sure you’re going to get the answer you want because the risk is you’re going to get another cock up like this one
He says: “The danger is if you go to the public with something that looks like the Norwegian system — a) that’s not what a lot of people voted for a b) why should we go for something that’s worse than what we’ve got at the moment? The governments own advice to itself is that none of these alternatives are any good.”
Dr. Catterall says government could potentially avoid a second referendum by calling a general election. The new Tory leader — set to be either Theresa May or Andrea Leadsom — could set out their negotiating position in their manifesto and the vote would give them a “mandate as to how they operationalise a Brexit, because at the moment they really don’t have one.”
But he adds this is still a far from certain path “given the Tories themselves are internally divided over what a workable scheme looks like.”
Despite the legal grounding for either a second referendum or a general election, Dr. Catterall says: “All of this might well have to tested in the court. You may have noticed government lawyers saying they can use crown prerogative to ram Article 50 through Parliament. I don’t think they can. It looks pretty certain that Mischon [de Reya] is going to test this in the courts [Read more here]. If they can ram it through then they will probably ignore the 2011 act as well.”
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