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BREXIT: Why Extending Article 50 Isn't Going to Happen

The Law Behind the the Single Largest Political Experiment of the 21st Century

A Nation Divided (Getty Images 2018)

The Withdrawal Agreement was voted down on January 15, 2019 in the House of Commons by a record margin of 202 to 432, the largest defeat in Parliamentary history. Following this, a no confidence motion tabled by leader of the opposition Jeremy Corbyn failed to unseat Prime Minister Theresa May by a narrow margin of 325 to 306 against, securing (for now) the Conservative Party as the leading force in Parliament for the negotiation of Britain’s exit from the European Union.

While neither the political parties, elections, and Referendums Act of 2001 or The European Union Referendum Act of 2015 make any provision to the referendums legal effect thus determining the result of British referendum on the United Kingdom’s membership to the European union to be merely advisory and non-binding, any Parliamentary favour for non-adherence to the 52 percent majority vote to leave the EU without further referendum poses significant political and legislative challenges. 

Let's explore the challenges the UK might face, how a second referendum might be initiated, and what legislation Parliament could enact to pursue a second referendum on the UK’s membership to the European Union.

Article 50 of the Treaty on the European Union serves as the mechanism by which any member state may withdraw from The EU. Following the result of the 2016 referendum, the British Parliament granted the Prime Minister powers to notify the EU of the United Kingdom’s intention to withdraw from the European Union starting the two-year withdrawal and negotiation process as outlined in Article 50(2) and Article 50(3). 

With the landslide failure of May’s withdrawal agreement and the recent discovery of the Leave Campaign’s breach of electoral spending limits there is growing demand for a second referendum. Despite this, due to the referendums non-binding status, it can be neither ordered to be re-run or declared void by any court, meaning any decision regarding another referendum must be made by the government by passing another referendum act.

Research conducted by the Constitution Unit of UCL found the absolute minimum time between the proposal and implementation of a second referendum must, in the event of a simple binary vote, exceed 22 weeks (with a further six weeks required in a three-option referendum) and with consideration to the time taken to enact the first referendum a timescale in the 40-60 week range is more probable.

As of the date of this paper (21/01/2019), conducting a second referendum before the UK’s scheduled leave date is functionally impossible. Further, despite the willingness of the EU, there is no legal provision for the extension of Article 50 and thus would require the unanimous approval of EU Parliament. Should Parliament face the need to circumvent this, the European Court of Justice have ruled that the UK may revoke their intention to leave the EU, “Unilaterally, in an unequivocal and unconditional manner” followed by a later second initiation of Article 50.

Perhaps the greatest challenge facing a second referendum is the matter of political legitimacy. With the need for legislation, question testing, preparation for the poll, and the regulated referendum period, any attempt by parliament to "rush through" a second referendum risks being met with contempt by the 17,410,742 leave voters, whereas finding a majority in Parliament for a second referendum may prove less of a challenge.

The matter of Brexit is complex and nuanced. As the hour grows closer and the little time that remains for a decision from Parliament ticks away, the fate of the British People hangs in the balance. 

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