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Guest post: An EU referendum Bill – what would it entail?

It is reported that the government’s EU Referendum Bill will be published the day after the Queen’s Speech – see, for example, The Guardian 19 May. This Bill will not be the first Bill to seek a referendum but, this time, it is a government commitment and was a clear manifesto commitment.

‘Private member’ bills appeared in 2013 (James Wharton MP) and 2014 (Robert Neill MP) though neither Bill succeeded in becoming law. The government’s Bill will need to address matters such as the referendum date; the wording of the question to be asked; who is entitled to vote. Open Europe offers a roadmap to the referendum.

The date:

The Prime Minister is, we are told, determined to hold the referendum by the end of 2017 but it might be wise to draft the legislation in a way that allows some flexibility on this. There has to be a period of renegotiation of various aspects of the UK’s relationship with the EU and this may prove to be rather more difficult than is maybe expected at this time. Following the renegotiation there will be a clear necessity to explain what has been achieved to those entitled to vote.

The question:

The wording of the question can be also difficult and if there is any confusion about things then the whole referendum could be a mockery. Both the 2013 and 2014 private member’s bills asked: ‘Do you think that the United Kingdom should be a member of the European Union?’ Whilst it permits a Yes or No answer, I am not sure about that. It just allowed the voter to say what he thought and would not, in my view, either have placed the government under any obligation to implement the outcome or tied government to any specific timetable.

Who may vote?

Who is entitled to vote? The 2014 (Robert Neill) Bill addressed this question in this way:

Those entitled to vote in the referendum are – ‘(a) the persons who, on the date of the referendum, would be entitled to vote as electors at a parliamentary election in any constituency, (b) the persons who, on that date, are disqualified by reason of being peers from voting as electors at parliamentary elections, and (c) Commonwealth citizens who, on the date the referendum, would be entitled to vote in Gibraltar as electors at a European Parliamentary election in the combined electoral region in which Gibraltar is comprised.’

So, who is entitled to vote in parliamentary election? The Electoral Commission website states that to vote in a UK general election a person must be registered to vote and also:

  • be 18 years of age or over on polling day
  • be a British citizen, a qualifying Commonwealth citizen or a citizen of the Republic of Ireland
  • not be subject to any legal incapacity to vote

Additionally, the following cannot vote in a UK general election:

  • members of the House of Lords (although they can vote at elections to local authorities, devolved legislatures and the European Parliament)
  • EU citizens resident in the UK (although they can vote at elections to local authorities, devolved legislatures and the European Parliament)
  • anyone other than British, Irish and qualifying Commonwealth citizens
  • convicted persons detained in pursuance of their sentences (though remand prisoners, unconvicted prisoners and civil prisoners can vote if they are on the electoral register)
  • anyone found guilty within the previous five years of corrupt or illegal practices in connection with an election

That this matter may not be quite so simple (!) see Telegraph – 1.5 million foreigners could get to vote. The article states:

‘Up to 1.5 million foreigners could be given a decisive vote in the referendum on whether Britain should leave the European Union, senior Conservatives fear. Ministers have been confronted in private by Eurosceptic MPs who are concerned that David Cameron could water down his promise to give the British people a say over the UK’s future in Europe because he wants Britain to stay inside the EU. The row centres on a decision over which electoral register is used for the referendum which is due to take place by the end of 2017. The government said it would decide on the franchise for the plebiscite when it publishes the EU Referendum Bill, expected in the coming months. Tory MPs who oppose Britain’s membership of the EU want the referendum to use the General Election voter register, with the addition of allowing peers in the House of Lords to vote. However, they fear that the government could be persuaded instead to use the separate electoral register for local council and European Parliament elections. This allows 1.5 million citizens of other EU countries who are living in Britain to vote in local and European elections.’

On a rather different note – would 16 and 17 year olds be allowed to vote? They could not do so in the recent general election but, interestingly, could do so in the 2014 Scottish Independence referendum.

Anything else?

I would not expect the government’s Bill to address the position following either to Stay In or to Leave. That will depend on matters such as the actual outcome to the renegotiations.

If the vote is for EXIT (or Brexit) – (I do not believe the government actually wants this) – then Article 50 of the Treaty on European Union will apply.

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2 unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

The law blogger ObiterJ writes at Law and Lawyers.