The Neverendum – does out mean out?

A new round has opened up in the debate about the British referendum. The question is: does ‘out’ really mean out?

The British government claims that it does. When he launched his renegotiation strategy, Prime Minister David Cameron said “If we left the European Union, it would be a one-way ticket, not a return.” The prime minister felt compelled to reiterate his claim in the Guardian weekend edition: “Leave means leave”, was the line an aide was tasked to deliver.

But the ‘Out’ campaign is taking a different position. Dominic Cummings, campaign director of Vote Leave, one of the three campaigns vying to become the official ‘Out’ campaign, said “If you vote no, you will force a new government to negotiate a new deal and give you a new vote”.

At first glance, this may seem like a strange position. Isn’t the point of the ‘Out’ campaign to leave the EU rather than having another referendum?

The most plausible explanation for this ploy is that opinion polls continue to show that Europe is not a pressing issue for the British public. A quarter of the people are “Eurosceptic”, and about the same percentage pro-European – but the bulk of the people are undecided and open to persuasion. This means that one of the key battle grounds of the campaign will be about which choice is riskier.

Implying that voting ‘no’ would not necessarily mean taking the leap into the uncertainty of a future outside the EU would take some of the risk out of that vote. Cummings in fact argues: “A no vote is much safer than a yes vote.” The ‘Out’ campaign is counting on the fact that people would be more likely to vote to leaveif it wasn’t necessarily the last word. According to this logic, a ‘no’ at the referendum would merely mark the beginning of a second renegotiation phase. Bernard Jenkin, a conservative MP said at a recent ECFR event: “Legally it is just an advisory referendum – it puts the ball back into the government party’s court.  [It is for them] to decide how to respond to a no-vote”.

It appears that the strategy is having an effect on public opinion. According to a recent YouGov poll, justone in four Brits believes a 'No' vote would indeed result in Britain leaving the EU.  

So what is the legal situation?

The referendum is consultative and not legally binding – so theoretically David Cameron could ignore it or even use it to negotiate better terms. However, holding two referendums would be a terrible idea as the uncertainty is crippling for government decision-making and damaging for British business. Earlierthis month Simon Walker, head of the business lobby group Institute for Directors, argued thata “delay puts a brake on decision-making, investment and the vigour of businesses”.

Moreover, the rest of the EU is already tiring of the British question and wants to avoid a neverendum. Unless Cameron promises that the vote will settle the matter once and for all, they will be much less likely to make any concessions in the renegotiation. 

A leave vote would, therefore, do much more than ‘put the ball back into the government court’. No member state has ever left the European Union, but since the Lisbon treaty came into force there is now for the first time a clear legal route out – article 50 of the Treaty on the European Union, a clause British people will hear much more about in the months ahead.

Article 50 has three central features. Firstly, the timing. Under Article 50 the British government would have to inform other member states of its intention to withdraw from the Union. Once this is done – and David Cameron has made it clear that he would feel politically bound to start the process of leaving once the referendum is concluded – the clock starts ticking. Article 50 allows up to two years before EU treaties shall cease to apply to the State in question.

Second, the way the negotiations would work. Article 50 allows the member states to appoint an official EU negotiator based on a proposal by the European Commission. They would then negotiate a framework for Britain’s future relationship with the EU. This could include market access, free movement of people, and any contributions the UK would make to the EU budget. Once this agreement has been reached, it would have to be voted through the European Council under qualified majority vote as well as being approved by the European Parliament.

The third important feature of article 50 is that if the EU and the British government fail to reach a deal, or if it gets rejected by the member states or parliament, Britain would lose all access to the benefits of the EU after the two years run out, putting it in exactly the same position as any other country that is not part of the club. Thus, Britain’s ability to determine the terms of its exit would decrease as it goes closer to the deadline.

For all these reasons it is misleading to imply that an out vote is just another way of putting pressure on the EU and the government for a better deal. Everyone would want to know that out means out and in means in.