NI and a ‘Peoples Vote’: three questions to be addressed

The title of the recent typically forensic and authoritative Brexit piece by RTÉs Tony Connolly “Dramatic Brexit week leaves us none the wiser” neatly sums up where we find ourselves (almost) at the end of 2018, as regards the future process.

Many twists and turns may remain in the run up to (and indeed beyond) what is currently ‘exit day’ on the 29 March 2019, including the Westminster ‘Meaningful Vote’ currently set for January. The proposal for a second referendum or ‘Peoples Vote’ has gained considerable traction in recent weeks, with a view to it being potentially the last option still standing once other processes prove inconclusive. It is now supported by three of NI’s four ‘remain’ parties (Alliance, Greens and SDLP). This post deals with three questions that the prospect of a second referendum brings forward namely:

• The ‘territorial question’ over NI and Scotland or a ‘UK wide’ vote
• Constitutional consequences of having ‘no deal’ on the ballot paper
• Political consequences of not having ‘no deal’ on the ballot paper

The ‘territorial question’ over NI and Scotland or a ‘UK wide’ vote

One of the constitutional problems of the outworking of the 2016 referendum was the ‘territorial question’ as to whether it was compatible with the UK’s constitutionally pluralist framework (most notably that provided for by the GFA and devolution settlements) to treat all of its constituent parts in the same manner on the basis of whatever the simple majority was on a UK wide basis.

In more flippant terms to paraphrase Margaret Thatcher, could NI and Scotland – who voted remain – simply be treated as being as English as Finchley, or should the implementation of the vote have required specific arrangements for each jurisdiction? Notably the current UK-EU draft Withdrawal Agreement (notwithstanding its many ‘rights deficits’) does ultimately provide for a form of ‘special status’ for NI’s ‘unique’ situation most notably in the economic sphere. This is set out as necessary to avoid a ‘hard border’, to protect north-south cooperation, and avoid incompatibility with the GFA. No similar provision is of course made for Scotland.

This ‘territorial question’ derives both from the of Brexit process as it does outcomes. As readers may recall procedurally the UK Executive had originally sought to trigger Article 50 through a Donald Trump-style Executive Order. As CAJ and others argued in the UK Supreme Court in the Agnew and others case, it was contended that to the contrary not only did triggering BREXIT require legislation through the UK Parliament, it also required the seeking of legislative consent of the devolved institutions.[i] The Supreme Court ultimately decided that firstly it was a constitutional and legal requirement for Article 50 to be triggered via an Act of Parliament. It also ruled that it was a well-established constitutional convention to seek legislative consent from the devolved legislatures but curiously under the UK framework it was not unlawful for this not to be done. In simple terms it could be said that government was acting ‘unconstitutionally’ but that did not breach domestic law and the Courts would not intervene.

This situation would arise again with the outworking of any second referendum, whose implementation (unless it resulted in Remain) would also ultimately change devolved powers. Could we therefore have a second referendum that was to be taken forward in a manner that is outwith the UKs own constitutional framework? In the alternative would government set out at the outset how the outworking of a vote would be applied in the devolved context.[ii] In the run up to the first referendum the British Government expressly rejected an SNP attempt to build in a devolved lock to its provisions, it seems unlikely they would take a different approach.[iii]

Beyond the procedural a second question then arises as to whether a question being put in a referendum would by its nature have an ‘unconstitutional’ outworking – for example by an option being incompatible with the UK’s treaty based obligations including the GFA. This brings us to the question of having ‘no deal’ on the ballot paper.

Constitutional consequences of having ‘no deal’ on the ballot paper

Some opinion polls have placed a ‘no deal’ Brexit and a crash out on WTO terms as a favoured option of many of the British electorate. The post-November Withdrawal deal discourse has also laid bare the economic project of the hard Brexiteers as one requiring a ‘no deal’ or something close to it. This is as it is the only way of taking forward the economic model of an entirely deregulated economy outwith any EU rules that allows the ‘freedom’ to strike ‘lucrative’ free trade deals around the planet, that is the desire of hard Brexiteers. Their rejection of the current draft Withdrawal Agreement is grounded in it not providing for that.

It would be remiss not to state that in all my years of meeting delegations from the Americas and elsewhere with experience of such free trade deals is that they may be ‘lucrative’ for people like Jacob Rees-Mogg, but tend to involve a bonfire of workers rights and a regressive socio-economic race to the bottom for everyone else. However, among this and other economic options the question has to be asked as to the constitutionality of a no deal, insofar as it would be in direct conflict with the UK’s treaty commitments, including the GFA. In addition to other barriers a no deal scenario also involves by its nature a hard border in Ireland. This has been interpreted, including by the State Parties to same, as being incompatible with the GFA. Indeed, the current ‘backstop’ is entirely predicated on this approach.[iv]

It is the case that many of the hard Brexiteers are unlikely to be concerned that a no deal undermines the GFA. Indeed, the DUP have actively opposed the GFA and would be happy to dismantle many of its provisions. Equally many within the English nationalist wing of the hard Brexiteers are at best indifferent if not also hostile to the GFA. The question for the UK Government and Parliament however is if they could legitimately include an option on the ballot paper that by its nature is incompatible with the GFA?

Political consequences of not having ‘no deal’ on the ballot paper

The final question posed in this blog however relates to the consequences of not having ‘no deal’ on the ballot paper, and in particular if there is a straight choice between ‘remain’ and the current Withdrawal Agreement.

This month has involved significant historical reflection on the anniversary of the 1918 UK General Election, and the implications of the vote in Ireland and the UK response to it. The conflictive sense of grievance from Irish nationalists over subsequent events, cannot be understated and is still being contested. Any comparison between the events of a century ago and a second Brexit referendum may stop there. But it would be remiss not to consider the sense of grievance within Brexiteer English/British nationalists who would argue for some time to come that Brexit was ‘stolen’ from them by the removal of the no deal option. This constituency includes powerful sections of the establishment with ample access to resources. It would be prudent to at least plan to deal with such consequences rather than, as perhaps was the case with the original referendum, simply wishing them away. An alternative view is that anything other than a hard ‘no deal’ Brexit is going to lead to cries of betrayal from Brexiteers regardless of the process by which it is reached.

The attraction of a second referendum in the absence of any other seeming way out of the intractable constitutional crisis Brexit has generated may be evident. Yet there are a number of complex questions to be addressed as regards the consequences of such a process that are best considered from the outset.

Notes:

[i] The question of legislative consent arises as the triggering of Article 50, and associated legislation will ultimately lead, among other matters, to changes to the roles of devolved Ministers and the powers of the NI and Welsh Assemblies and Scottish Parliament.

[ii] Whilst the UK Government could paradoxically have ‘sought’ legislative consent but ignored the refusal to give it in the original triggering of Article 50 and technically be abiding by constitutional convention, it appeared averse to doing so, partly as the political costs of asking then ignoring may expose and in the long term render untenable, such a weak process.

[iii] SNP bid for ‘quadruple lock’ on EU referendum vote rejected BBC News 16 June 2015

[iv] Article 3(1) “This Protocol sets out arrangements necessary to address the unique circumstances on the island of Ireland, maintain the necessary conditions for continued North-South cooperation, avoid a hard border and protect the 1998 Agreement in all its dimensions” and that the Backstop is only to be replaced by something that “establishes alternative arrangements for ensuring the absence of a hard border on the island of Ireland on a permanent footing” (preamble, Protocol);