BREXIT: Will There Be A Second Vote?

Disclaimer - this is purely the opinion of an English / US trained lawyer who advises and trains government and private sector clients around the world. The opinions and analysis here are solely my own. **Again, this is not advocating a position, but is in answer to a number of questions posed to me.**

Q: Will there be a second "vote"? -
A: Very likely yes. But this is separate from whether there will be a second referendum. I will explain.

The Act that authorized the referendum was clear that the referendum was non-binding and advisory. As Parliament is (in theory) 'supreme' then there has to be enabling legislation that will start the withdrawal as the UK Courts have repeatedly stated that the European Communities Act, 1972 (ECA) needs to be repealed, which takes action by Parliament, to repatriate sovereignty. Essentially, starting at the beginning, the ECA, has to be repealed and then move forward with other acts and precedents.

Could Cameron or another Prime Minister "go it alone" and give Treaty of Lisbon Article 50 notice? They could try, but Article 50 itself refers to withdrawal: "in accordance with its own constitutional requirements" - and those seem to have been established quite clearly by the UK courts to be repeal of the ECA. Therefore, action outside of that could be deemed ultra vires or outside the scope of his power. "Uncharted waters".

Technically, Parliament could vote to remain - although it is highly likely that the Conservative government will put into effect a "three line whip" that tells their MPs that they must vote for withdrawal regardless of their personal views - this could be defied. The effect of such a "rebellion" would definitely be interesting to say the least.

The next possibility is re-negotiation prior to the invocation of Article 50 of the Treaty of Lisbon. The EU leadership want the UK to invoke Article 50 now, but even the Brexiteers want to wait a while to set up a negotiating team. Why the delay?

Cynics would say that Boris Johnson (a leader of the Brexit campaign) has had as his first priority becoming Prime Minister over and above leaving the EU. He is aware that Cameron failed to get the concessions he wanted from the EU. Concessions that would have met many of the demands of those seeking Brexit and would have led to a strong remain vote -- primarily he sought concessions dealing with immigration / currency and slowing the move to greater social / political integration.

Those close to Boris Johnson have articulated that he believes Cameron could not gain big concessions because few EU leaders believed the UK would vote to leave (no nation has ever invoked Article 50 before -- Greenland left, but Greenland is a dependency of Denmark and not an independent nation). Well, the EU leaders, and leaders of nations in the EU believe now.

Further, if economic instability continues (likely while uncertainty reigns) and impacts other EU nations it is *possible* that the UK could now negotiate and win more concessions if, and only if, they agree to hold a second referendum on the "new deal", and some of the senior Brexit campaigners agree to endorse "remain". Here, however, one must overcome the issue that no one (read EU leaders and leaders of EU nation states) likes to negotiate at the figurative "point of a gun", and so that would be very difficult. But, again, potential or actual recession and fragility in markets could lead to those people feeling they have to and, hence, to a second UK referendum.

Next -- the UK operates under the "Fixed Term Parliaments Act, 2011" -- that locks in the life of parliaments at 5 years (before that Act, the government could call an election at any time) -- There is however proviso that if 60% of MPs vote to prorogue Parliament then an election could be called (for the Conservative Party this would be like Turkeys voting for early Thanksgiving) but again the economic situation could (stress could) lead to this.

If an early election was called and a party, or parties, ran on a manifesto of remaining in the EU and they became the government (or coalition government) then they could vote to stay in citing the election trumping the referendum. Here one could possibly see Labour (likely not under Corbyn who has always been lukewarm on EU) and SNP coalition (although SNP have a stronger chance at independence if the UK stays on course to leave -- see below). If Article 50 (which sets hard timetable of 2 years to leave EU) had already been triggered the question remains whether a new government could withdraw that "notice" -- Article 50 is silent on that and so again...uncharted waters all around and no firm plans as to next moves.

This creates uncertainty and as long as the uncertainty remains there will continue to be economic upheaval and problems. Perhaps a major reason why many who voted "leave" are now saying they did not know what it would mean and reports are coming in of people wanting to "change their votes" -- but that's like saying you want to change your bet after the horse race is over!

Now a few other points:

*Many who voted for Brexit believed (and were led to believe) there was a cohesive plan to withdraw. However, the last couple of days have shown there is not. It seems no one can agree on what type of arrangement with the EU that they want for the UK.

The dominant view is one of an EEA (European Economic Area) model -- akin to Norway -- Now many Brexit leaders say UK is different from Norway and will get a better deal, but noises from around the EU suggest that no one is in the mood to grant special dispensations -- not for punitive reasons but to stop others trying to "get a better deal" by threatening to leave.

Here is the kicker -- the EEA model requires that Free Movement of Persons remain in effect -- hence the "restrictions on immigration" promised by many would not happen. In this event the UK "points based system" would be out of the window and the UK would be left with immigration from the EU but without any seat at any table to vote on or veto EU policies (the "worst of all worlds" as some have put it).

The models on the table, so people say, are EEA // Swiss Model // a UK bespoke model and a WTO leveraged model (the latter being the weakest). It is also to be seen whether EU leaders would allow a "special model" for the UK that gave them lots of benefits of trade agreements and none of the "downside", as that could be seen as rewarding the UK for leaving -- something most analysts agree that many would be reluctant to do.

I should also add here that there were unclean hands on both sides of the debate. People had legitimate concerns on both sides -- yet epithets like "racist" and "xenophobe" were thrown around at people most of whom were acting in good faith and who had legitimate concerns -- failing to recognize those concerns and listen to them was a mistake.

On the other side some were called "socialists" or "traitors" to the island nation of the UK -- again, this was wrong as they were people acting in good faith.

The "swamp of indiscretion known as social media" did nothing but fan the flames and each side became more entrenched and more convinced of the bad faith of the "others" -- this was wrong and was manipulated by some for gain; that was as disgraceful as the lies both sides were guilty of telling.

*Scotland and NI: Both of these nations voted remain (and parts of devolution and even the Good Friday Agreement have a basis / link to EU law). Sturgeon of the SNP and McGuinness (Deputy Chief Minister of NI) are now making, what many see as legitimate, calls for votes to leave the UK. Sturgeon is requesting a second referendum so that Scotland can leave the UK and remain in the EU. McGuinness wants an Ireland wide referendum on re-unification as Eire is in the EU and NI wants the benefits -- this could fracture the UK, or could lead to further unrest in NI.

Sturgeon suggested (pre-referendum) what is known as the "Four Nation Lock" -- that is that in order for the UK to leave the EU there must be majorities for leave in all 4 nations of the UK (England, Wales, Scotland and NI) -- Cameron rejected this, some believe it was because of arrogance caused by the "not invented here bias" (not my idea, so not good) or because pollsters said remain would win -- relying on pollsters has not been where the smart money has been for several years now.

For NI - it should be noted that leaving the EU was not one of the "Good Friday Agreement" triggers for a referendum. However, again, what happens with the economy could be a factor -- again I use the phrase "uncharted waters".

**ADDENDUM -- I had not mentioned this before but, in light of questions, would be remiss not to note that there is a very good (though not conclusive) argument that the statutes devolving power to Scotland and NI reference EU law and it being ingrained in the UK -- and potentially give veto power to their national assemblies, unless Westminster rolls back the powers granted by those statutes -- again, not conclusive, but something that is again...(you guessed it)...uncharted water!

*Financial Centers: London is one of the leading financial centers in the world. In recent years this has been bolstered by the fact that you have an English speaking, common law jurisdiction with full and free access to the EU.

Memos went out (I am careful here for legal reasons) about potential moves to Eire or to Scotland, if the latter break away and stay in the EU, by many of the major finance companies. That would deal a massive blow to the UK economy that has become increasingly reliant on finance and banking. Again uncharted waters.

*Intelligence Sharing: It is hard to believe, especially in light of recent events that intelligence sharing would stop or be reduced, but again, we cannot be sure. After the Charlie Hebdo attacks, intra-EU intelligence sharing increased (leaving aside ECRIS, European Arrest Warrants and other valuable tools). One of the great strengths of the UK is their membership of "Five Eyes" - a group that also includes the US, Canada, Australia and New Zealand - recognized as one of the most powerful intelligence groups in the world. Regardless of your views on surveillance or the conduct of any particular nation, it is hard to argue that the EU will want to turn their collective back on access to some of the information obtained through the UK's membership in this group. So another factor for the upcoming negotiations (whenever they may occur).

There is much, much more to this situation and many more arguments both for and against, but these are just a few thoughts, answers and a short analysis.

Many in the UK and even here in the US believed this vote is solely about "reclaiming sovereignty" -- that is a superficial analysis and not supported by the actual facts and the law. 43 years ago (and longer) the UK started pouring European Brandy onto their economic cake -- it has soaked in and touched every area. What the Brexit campaign sold was removing that Brandy and keeping the cake.

The EU was originally created to be, and at its core remains a trading bloc -- either you are in, or you are in the EEA, or you are outside. If you are outside you will likely pay and therefore likely charge tariffs and you must negotiate very long and drawn out deals. If you want to be part of the EEA you have to accept Free Movement and so lose control of immigration policy to a large degree (something people were not told in advance) but you have no vote on policies. If you are in you have to accept free movement but you at least have some say in policies -- although all economists and business people freely admit that the EU needs serious reform.

Now we have entered uncharted waters and the seas thus far have been choppy --- financial and currency markets have been hit and will continue to be volatile until there is an action plan. Why? Because the UK economy was the 5th largest in the world (although in two days it has slipped behind France) -- even small economies being hit hard has a knock on effect on confidence around the world. Alas, humans are not the rational actors that economists paint them to be (hence the growth of the field of Behavioral Economics to look at how truly irrational we are).

Will there be another vote? Practically, if the withdrawal moves forward or backwards, there really has to be one in Parliament to give effect to (or overrule) the result of the referendum. For a Prime Minister to act alone could be ultra vires and make this matter even trickier; acting alone would be the Prime Minister overruling the ECA (a statute passed by Parliament) via exercise of prerogative power - a work creator for lawyers to be sure. Although I am sure some lawyers and scholars will disagree with each other on this and write a lot of opinions anyway.

As for "other votes": There would also have to be votes in the other member nation states of the EU, where required, in their legislatures to ratify any deal made by the EU with the UK should the leave vote be acted upon. There will also be votes at the EU level on any deal reached with the UK -- so, again, there will be more votes -- And what happens if the EU or member nations refuse to ratify a deal? At the end of the two years *after* Article 50 notice the UK is out "deal or no deal." And after that if they wish to re-enter then a new application must commence and requirements must be met, including accepting the Euro as currency (unless a deal is made to the contrary). So, some may be on the look out for signs that read "Negotiators Wanted".

Will there be another referendum? See above and wait and see.

We are entering uncharted waters -- money is being made either way, but that does not help the folks on the street who voted in or out who are now worried. What they need is rapid and decisive action. It seems clear from their reaction, in many cases manifested by silence or a "not so fast" expression, that the Brexit leaders did not truly expect to win, and so unfortunately rapid and decisive action seems to be on hold!