How to deliver a second Referendum

Here’s what Boris Johnson wrote back in February:

There is only one way to get the change we need, and that is to vote to go, because all EU history shows that they only really listen to a population when it says No.

He may have had in mind the second Irish referendum on the Lisbon treaty which followed after the Irish voted ‘no’ in the first – and secured further concessions from the other Member States.

“Say ‘no’ for a better ‘yes'” isn’t bad as a negotiating ploy. But it’s not much of a campaigning slogan. The Leave camp ditched it for ‘Take Back Control’.

And the rest is recent history.

It wasn’t only Boris who saw the attractions of a second referendum. So did Nigel Farage. Speaking to the Mirror he said this:

“In a 52-48 referendum this would be unfinished business by a long way. If the remain campaign win two-thirds to one-third that ends it.”

It’s fair to say he meant a 52-48 win for Remain rather than that very vote for Leave. But, you may think, what’s sauce for the Goose…

But could we have a second referendum after a Leave vote? And what might it take to bring such a thing about?

Let me begin my task by clearing away a little undergrowth.

The referendum result creates a democratic imperative for the UK to depart but, as the great legal blogger David Allen Green has set out here, it doesn’t create a legal one. The legal one follows not from the referendum result but from our decision to trigger the exit procedure in Article 50 (which I turn to below). Some have mooted that our Parliament could simply ignore the referendum result. Although that may be right in legal theory I don’t, myself, consider it a practical likelihood. But, what democracy has commanded shall be done it can also command to be undone. Or, to put the matter less grandly, a second vote, this time for Remain, would undo the democratic imperative of the first.

So I see a refreshed democratic mandate as key.

How might such a thing be delivered?

I can see two routes.

First, were we to have an early General Election fought by one party on an explicit Remain platform and were that party to prevail it would, I think, amount to a ‘refreshed democratic mandate’. The electorate would have spoken such that the result of the Referendum would be superseded.

Second, even without such a General Election, Parliament might decide that circumstances had changed sufficiently, as in Ireland, to put the proposition to the electorate again.

What would make these routes more or less likely?

The General Election route requires that three things happen.

First, there would need to be a General Election. The Fixed Term Parliament Act 2011 requires that (absent a no-confidence motion in the Government) the motion for an early general election achieve a two-thirds majority in the House of Commons. But if the Government took the view that such was desirable – and several Brexiteers have already mooted such a thing – it is unlikely that the Labour Party would stand in its way.

Second, one or other side would have to stand on an explicit Remain platform. That would not be the Conservative Party. And such also seems inconceivable under Labour’s present leadership. Writing to Labour members on the 24th of June Jeremy Corbyn said this:

After yesterday’s European referendum, politicians of all parties must listen to and respect the vote. Millions of voters have rejected a political establishment that has left them behind. Communities that have been hardest hit by government cuts and economic failure have voted against the status quo.

This is not the language of a Leader who wishes to Remain. But Jeremy Corbyn is to face a leadership challenge and the overwhelming majority of the Parliamentary Labour Party – and indeed its voters – support Remaining. Were a new Labour leader to be selected, Tim Farron’s pitch for a pro-EU social democratic coalition might fall on fertile ground. And, of course, Nicola Sturgeon has made plain her intention to keep Scotland in the EU.

And, third, that Remain platform would need to win. You will have your own views about the likelihood of that prospect. But Luke Baker has referred to the possibility of Buyers’ Remorse about Leaving. Not even a day in there is much anecdotal evidence of this. And if the Project Fear predictions of the poor, derided “experts” come to pass it is possible that the population might come to welcome an opportunity to Remain.

The other possible route to a second Referendum is much simpler. Again, it has three steps.

First, it would require a recognition on the part of the EU that the concerns of the local electorate be met with concessions. The public could, I think, only sensibly be confronted with the In/Out question afresh if the circumstances had changed since last it was asked. This was, in effect, Boris Johnson’s “Say ‘no’ for a better ‘yes'” strategy. This has, in fact, happened on three occasions: Ireland (twice: Lisbon and Nice) and Denmark (once: Maastricht).

Second, there must be a desire on the part of the Government of the day to deliver a second referendum. This will in large part be contingent on whether the public’s attitude to the prospect of Leaving sweetens or sours: Buyers’ Remorse again.

An EU contemplating an existential crisis of its own in consequence of the UK’s likely departure – perhaps facing demands from other Member States for referendums of their own – might increase the pressure on our Government by dangling concessions directly in front of the UK public. You might even think that this was Wolfgang Schäuble’s intention when he talked of the UK having “associate member” status. You might also read into Boris Johnson’s comments of Friday morning a desire to keep this door open:

In voting to leave the EU it’s vital to stress that there’s no need for haste, and as the Prime Minister has just said nothing will change in the short term except work will begin on how to extricate this country from the supranational system. As the Prime Minister has said there is no need to invoke Article 50.

Any or all of these circumstances could create huge public pressure for the question to be put afresh. Pressure no sensible Government could ignore.

Third, a renewed Referendum would have to be won. But, as this rather elegant piece by Ece Özlem Atikcan explains, they do tend to be.

Of course, had we left in the meantime, all of this would be academic. And the timing is important. Too soon and we may not have time to see Buyers’ Remorse. Too late and it may be difficult to derail the process. Again, a close reading of Mr Johnson’s comments suggest a sensitivity to the possibility of a golden moment.

If you assume this golden moment arises before we have triggered Article 50 (and, for reasons I don’t want to get sidetracked by why I regard as hollow the threat to treat the Referendum result as triggering Article 50), we can simply ignore such conditions as it imposes. But what if you assume that, under pressure from an EU with problems of its own to resolve, we have already triggered the process?

Were you to read Article 50 as you might a piece of domestic law, you would note it has no reverse gear. Once you start the process, you’re on the way to the exit door. This is a point that David Allen Green has made here. But for myself I have little doubt that the process can be abandoned once started. As a general proposition, in my experience, EU law bends much more to pragmatism than does English law. This was also a point made by Professor Derrick Wyatt QC in his oral evidence to the House of Lords Select Committee on the European Union. And Sir David Edward, former judge of the European Court of Justice, giving oral evidence on the same day said:

It is absolutely clear that you cannot be forced to go through with it if you do not want to.

Perhaps we might all feel differently if Article 50 stated explicitly that a member state, having triggered the Article 50 process, cannot abandon it. But it doesn’t; it’s just silent on the issue.

So. Let me sum up.

Form your own view, but I think Buyers’ remorse is likely. I think the electorate will come quickly to appreciate that the ‘look behind you’ of the Remain campaign did not warn of an approaching pantomime villain. Rather, there is a very real likelihood of a very meaningful deterioration in the lives of a great many people. The fruits of victory may quickly turn to ashes in the mouths of Brexiteers. It is, I think, likely that the EU will seek to engage the UK public directly – and I very much hope they do. And, although here I speculate, I do sense an ongoing ambivalence on the part of Boris Johnson to the creature he has delivered. Where lies his place in history on delivering a disaster to a country he loves? Mix these ingredients together and you have the recipe for a refreshed democratic mandate for Remain.



92 thoughts on “How to deliver a second Referendum

  1. I nodded at this point (and its kin) in my blog post. It seems to me that the practical effect of a disagreement will be that the European Court will need to get involved: written argument, oral argument, opinion, judgment… It will all take quite a lot of time…

  2. True. But if UK were to behave in this bizarre and disrespectful way, it would also create a lot of resentment, which wouldn’t bode well either in exit or in we-didn’t-mean-it-please-can-we-stay negotiations.

  3. what might be a problem is that this first brexit result will have already set in motion a contagion effect across other EU countries, (polls in france suggest strong leave sentiment). by the time we put all this into effect and reverse the decision we might be rats climbing back on board a sinking ship, the sinking of which brexit had a large part in causing/accelerating.

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  6. Time taken to resolve any Article 50 dispute wouldn’t necessarily extend the 2 year deadline.

    Meanwhile (a separate point) I wonder whether brexiteers have factored in the transitional / forestalling effect on immigration of pre-announcing a clamp down 2 + years in advance.

  7. In the event of the pro-Blairs ousting Corbyn there will be so many people, like me, leaving the Labour Party and punishing the remaining Bliars so hard that they will be reduced to the same level of representation as the Liberals. Perhaps the time has come for a new Progressive Party that incorporates the Greens and rejects neoliberalism and austerity.

  8. I fear we may have to go through a lot of pain, and then after one or two General Elections, it may be possible for a party to win government on a platform of seeking re-entry to the EU. But will they have us back?

  9. Not necessarily so, not necessarily not.

  10. “Some have mooted that our Parliament could simply ignore the referendum result. Although that may be right in legal theory I don’t, myself, consider it a practical likelihood.”

    But could parliament use the “EU Referendum Rules triggering a 2nd EU Referendum” petition (currently at 2.6 million) and re-define the rules after the fact? If a truly huge number of people signed that petition, could parliament ignore it?

  11. regarding the bill to set up the referendum —

    In report on the bill, the Lords Constitution Committee said that parliamentary rules and timetables could cause the legislation to fail. It also warned that even if the bill becomes law, any referendum could be subject to court challenges.
    Daily Telegraph 02 Jan 2014

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  14. I think it becomes a political force at about 10m. Below that, it’s noise…

  15. If the EU were to revert to a Common Market then a 2nd referendum could be won. However, would they start the process of “ever closer political union” all over again?

  16. To Geoff Lloyd 25 June at 8.18

    I have read Article 4(3) that you helpfully quoted and it seems clear to me that its use in the way suggested to force an early formal withdrawal by our government would be contrary to its intended application and the normal meaning of words. You could of course build a case, but it is the sort of thing that gets lawyers, and politicians, a bad name amongst ordinary people.

    It seems clear to me that the UK has staged a formal event in the referendum that makes it extremely likely we shall be withdrawing from the EU but at present it is neither a constitutional nor a political inevitability. Given Cameron’s decision, which he was fully entitled to make, things will probably not be clear before October. The attempt by senior EU figures to impose an early activation of Article 50 on the UK seems to me a clear piece of attempted political bullying and interference in the UK’s constitutional arrangements that is outside their proper powers.

    Fortunately there are saner counsels at the EU – ‘But a European Council spokesman reiterated on Saturday that triggering Article 50 was a formal act which must be “done by the British government to the European Council”.’

    The important EU persons attempted bullying is an attempt to put the preservation of the political interest they have adopted ahead of proper procedure or the wider interests of European societies. It is the sort of thing that makes me wonder whether I was right to vote ‘Remain’ – or whether in the longer term, given the new moods coming to the surface amongst electorates, the Eu will survive.

    I doubt whether EU figures are any worse in this respect that senior politicians in power in our own or other countries, but the wider scope of the EU, its complexity and the lack of precedent make the dangers greater in that sphere than the domestic one. It is there that, in my view, the EU’s ‘democratic deficit’ is most acute. It may meddle in too much detail, but I do not think its formal structure is particularly undemocratic, and in some respects I think the wider range of interests operating within the EU arena makes it more democratic, and, indirectly, accountable, than our famed, vote-them-out, first-past-the-post democracy. As always it is the stage on which the powerful people are enabled to strut their stuff that one needs to keep an eye on.

  17. I agree, and one way to fend off an attempt to accelerate UK withdrawal is for the PM to do a bit of clarifying at the European Council next week and indicate that – as you say – this is not yet an inevitability.

  18. Irrespective of the legal technicalities, why is that the democratic process cannot be followed? Some ins would have reservations if they won and some out now feel the same. However, a vote has been cast and it surely should be carried into effect. Aren’t we going to look foolish and the left tyrannical if they force a volte face through hectoring and acting rather like a spoilt child?

  19. Surely the time for another vote is when theexit negotiations are completed and we all know exactly what out looks like. So far this has been blurred by all sorts of talk along the lines of “They, the EU, would be foolish to be mean to us” When we actually know the terms another vote would make sense because this time around no one knew what what the alternatives really were. Further more there were a lot of lies in the campaign, some of which we have already seen unravelling.
    What we need is an honest government committed to leaving who will say at the end of the process, this is what we relations with Europe will look like. That will take two years at least, by which time we will also know if our economy has managed to survive. We will kmow how much of the city of London will be moving to Frankfurt, how much former EU money can actually be sent to the NHS etc. etc.

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  21. Reblogged this on An Unexpected Item in the Blogging Area and commented:
    Interesting article, and reflective of my own predictions. I am not sure I am comfortable with it: but I have always believed that this is Realpolitik. Not nice, not polite

  22. Agree with almost all of this, and it is most useful But:

    Your quote from Sir David Edward refers, does it not, to going through with the triggering of Art 50, not with going through to the end of the whole Art 50 process.

    While Art 50 is indeed silent on applying a reverse gear, it is quite explicit on how the process ends “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”. This deadline can be extended, presumably indefinitely if that’s what everyone wants to do, but only by unanimity among the 27.
    The UK position, given that it would be facing a deadline for an exit that it was getting cold feet about, (possible with no agreement at all) would be exceedingly weak. The rebate would never survive. Nor would a host of other opt outs, possible even including the one on Euro membership. Selling that in a 2nd referendum – ‘please vote for a worse position in the EU than we had before’ – may be a challenge.
    To me it’s clear that once Art 50 is triggered the game is up, so it is vital that the UK has its ducks in a row and knows exactly what it does and does not want to do before it takes that step.

  23. What Professor Derrick Wyatt says is: “The reason I think it is possible in law to change the country’s mind before withdrawal is that there is nothing in the wording to say that you cannot. It is in accord with the general aims of the treaties that people stay in rather than rush out of the exit door.”

    Baroness Scott asks: “I want to return to the question of a Government changing their mind. Setting aside the politics of it, in law do you both agree with the position that there is no provision in the treaty to change your mind? You can rejoin afterwards but it is silent on the question of changing your mind. Could you give us your perspective on that?” and responding Sir David says: “It is absolutely clear that you cannot be forced to go through with it if you do not want to: for example, if there is a change of Government.”

    So (leaving aside my own reasoning) I think they are both fairly clear that you can withdraw even after the Article 50 button has been pressed so long as you are not at the two year limit (or the operative date of a withdrawal agreement).

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  26. That is very interesting. Thank you, I hadn’t been aware of that interpretation.
    But I also note he goes on to make some important points about how the talks may go if we tried to withdraw from the Art 50 process:

    Sir David Edward: “Right; I have put you to all this trouble; we have negotiated for two years and now I do not actually like the terms you are offering so I want to go back to zero”. My hunch is that many of them might say, “Right, back to zero. No more opt-outs”. That is a pure hunch; it would entirely depend on the politics of the situation at the time. I do not think there would be enthusiasm for letting you back with all the existing opt-outs….

    Sir David Edward: I am saying that they might say, “We will let you change your mind, but there will be no more opt-outs”.
    Earl of Caithness: At the end of the day they have a veto.
    Sir David Edward: It is political…

    Sir David Edward: I began by saying it is a matter of politics. I do not think that the politics are as easy as saying, “The negotiations are over and we are back where we started”.
    The Chairman: As if nothing had ever happened, as it were.
    Sir David Edward: Yes, as if nothing had happened.

    You are optimistic about their desire to keep us in if at all possible. I am less so. I am also deeply pessimistic about trying to sell a 2nd referendum to the British people on worse terms that we currently enjoyed.

  27. Those are political assessments, of course. And room for reasonable people to disagree. But on the legal point…

    I absolutely agree there needs to be the perception of a better deal. Of course, the EU may also regret this outcome and there will be difficult schools of thought there too. Merkel has been rather conciliatory…

  28. I wonder if you have a view on whether the PM can invoke Article 50 through the use of prerogative powers and whether this would be consistent with EU law, including the Lisbon treaty?

    Article 50/2 appears to limit the right of invocation (of Art. 50) to a Member State that has “decided to withdraw”. ie Only a member reaching such a decision may invoke Article 50. So what does that mean?

    According to Art.50/1 that depends upon which country, referring to “accordance with it’s own constitutional requirements.”

    Therefore, the question in hand is whether or not, in legal terms, the UK referendum outcome amounts to a legal decision by the UK to leave?
    Others have written on this matter, concluding that the Brexit vote has no legal authority (despite obvious political weight). Indeed, Parliament appears to have deliberately constructed the referendum such as it would not have legal authority (unlike the AV referendum of the last Parliament) by omitting clauses triggering legislation.

    In that circumstance would a decision to invoke Article 50 without specific, additional, authority of Parliament not open up that decision to a challenge through European courts? A claim that the UK had not “decided to leave”, as a matter of law, in accordance with its constitutional requirements.

    After all, isn’t part of this about re-asserting Parliamentary sovereignty?
    If this Parliament refuses to permit invocation, a new one might need to be elected.

    If that new Parliament has a pro-remain mandate, that would clearly supersede the narrow referendum victory of no binsing legal status, the new Parliament not to be bound by a predecessor. If it’s pro-Brexit, the matter is beyond dispute and legally sound. Politically possible and legally required being in alignment once more and legal challenges avoided.

  29. I fear this is dancing on the head of the constitutional pin. I think what you’re suggesting is that Parliament should vote not to proceed with the democratic mandate given it in the referendum and presumably supported by the next government, triggering a crisis leading to a fresh election, presumably via a vote of no confidence in the Government, in which we hope a Remain Parliament (and Government) is elected, allowing Parliament legitimately to say the referendum mandate has been superseded. And that’s good for Parliamentary sovereignty how, exactly?

    The only way and time a fresh mandate can be given is in response to a more concrete proposal: terms on which we will either stay in (a better ‘yes’) or leave (the best ‘no’ we can negotiate).

  30. Thanks Mark. I’m actually not suggesting one way or the other, in support of exit or remain. I’m asking two (slightly academic) questions that l consider, as I read it, article 50 demands to be answered.
    1. Has the UK decided, as a matter of law, to leave the EU?
    2. If not, can the PM even invoke Art50?
    I am fully aware of the compelling political or “moral” authority that can be claimed after a referendum of course but issues may arise if the law and the political course taken are not in step. Given the vehemence of views on both sides, a wise course might be to ensure legal integrity as challenges, where permitted, may be likely and disruptive.
    The “sovereignty” of a referendum is provided under the authority of Parliament, temporarily devolving some advisory or law-making capability to a vote among the people. It is straightforward to tie automatic legislative provisions to the outcome. Given this was the course taken for the very recent referendum on AV, the fact this was not done in this case suggests not merely an oversight by Parliament, but a determination to reserve the matter for itself. An act of commission, not of omission that renders this matter highly material and not dancing on a pin head.
    If true, this would render the outcome advisory and not (legally at least) binding.
    In that case it would be prudent for any PM to secure the consent of Parliament (“ratification”) prior to attempting to invoke Art 50 lest he or she find a challenge to their authority to do so, creating avoidable further uncertainty.
    Clearly this would be a chance for Parliament to either support the apparent express will of the people (which would doubtless be the appeal of the pro-Exiters – a rubber stamp exercise to give legal authority to express will) or to assert its own sovereignty in spite of this express will (with the attendant political risks).

    No doubt a vote on whether the “new deal” (whatever and whenever it is) is better than the “old deal” may also be politically desirable, highlighting just why sensible referendum questions frame two alternative known outcomes as a concrete choice rather than voting options of “this” or “not this”.

    A PM supportive of exit may be wise to seek parliamentary approval now or soon, rather than in response to a future challenge. Indeed is that “review” not what Parliament must have intended?

  31. If the will of the people can be ignored and overturned, what was the point of the Referendom in the first place?

  32. Could someone tell me definitely – as the referendum is ‘advisory’ and not legally binding, does parliament have to vote to ratify it, or can the PM trigger article 50 unilaterally?

  33. Politically you may be quite right, in which case achieving legal certainty is all the more important.
    Setting aside whether the will of the people remains today what it appeared to be on Thursday evening (let’s assume it is, many will argue it has likely changed) seeking parliamentary ratification of that will ensures that “their will be done”.
    In the scenario I paint above, there is a danger to an unratified decision leading to Art 50 notice as it may be struck out as invalid if challenged (actually, I pose the question of whether it could be – what do I know!?).
    Legally speaking, the will of the people is expressed by Parliament of course and, if that will changes it will be reflected in Parliament changing its mind.
    If the people don’t like it, they elect a different Parliament.
    That is the way the will of the people has been reflected for literally centuries, and forms the founding principle of many other legislatures around the world. Referenda are anomalies in our system and, I would argue, non-binding referenda even more anomalous bringing with them the danger of a political expectation of one thing with no legal certainty it can happen.
    Since that appears to be what Parliament actually intended in this case, Parliament may need to act if the popular vote is to be able to be executed legally. This in turn brings danger or opportunity, depending upon your disposition. I’m not advocating either, just pointing out that the referendum alone may be an incomplete expression of will and not constitute a “decision” as intended in the Lisbon Treaty.
    If so, failing to secure explicit Parliamentary consent to invoke Art 50 may bring risks too.
    By the way, nor would it matter much if Cameron or any other MP or Minister announces they “consider” the result to be binding. It is Parliament that has reserved that position, only Parliament can provide the necessary confirmation.
    I might be wrong but if the referendum is advisory and not binding (as it appears) then I cannot see how it can be considered a “decision” to leave until it becomes legally binding; rendering talk of invoking Art50 moot until the electorates “advice” becomes Parliaments decision.
    I’m not saying what I think “should be”, but what I think already is.
    A badly-worded referendum providing a choice between “this” and “not this” (rather than “this” vs “that”) and no legal certainty following a vote for change. What a mess!

  34. If we are offered a choice between the Norway option (entailing free movement) and staying in the EU then all the leavers who were voting to control immigration will be disenfranchised and Remain will win. But it won’t be democracy by any stretch of the imagination.

  35. Good post – and I agree with its aims.

    However, we must also face up to the real prospect of having to negotiate a Brexit. As such we need a plan. We need a good plan and we need it fast.

    The #Brexit camp has no credible or coherent plan. It has no manifesto: many of its promises have already turned out to be lies. It has no single leader and there is no consensus between factions on what leave means.

    The victory margin for the vague ‘possibilities’ of Leave was just 4% (a 2.2% swing to Remain would have prevented this tragedy). In short, there is no mandate for radical separation. As such, we should only leave by a similar ‘4%’ margin.

    By that, I mean we should negotiate for the smallest change possible in our relationship with the EU. We need to leave on terms that do the least harm to our economy and our allies. We should also keep the EU door firmly open for future generations to rejoin if that is their democratic will.

    We need to salvage what we can from the wreckage.

    I propose the #PortiaPlan (it’s not ideal – but it’s a start – although I wish we weren’t starting from here):

  36. I’m not convinced we can deny the will of the people to ‘Leave’ the EU – they have voted and we must try to implement their decision. The big question now is what does Leave really mean? The problem is there is no Leave Manifesto, no plan and bugger all Leave leadership to tell us.

    We must answer that question about the meaning of Leave before applying article 50. It’s the only way we can ensure the government goes into negotiations with a sensible plan and a firm mandate. We’d look really stupid trying to negotiate without knowing the desired outcome.

    The only way forward is to appoint a Royal Commission to look at all the evidence, asses the risks and benefits, consult with the experts and opinion leaders, and other interested third parties. They need to evaluate all the possible permutations of leave and weight up the pros and cons of each possible path to exit.

    This is a complex job. It might take a little time. Going on past Royal Commissions we might get an answer around 2024. Naturally this answer would have to be put before Parliament. The two houses and the various committees would have to consider the report and its proposals in detail.

    Unfortunately the 2025 General election might interrupt procedures but the draft proposals could be carried forward to the new parliament. After due consideration MPs could draft a Green paper for further consultation and then a White paper for debate. The outcome of that could be a bill to start negotiations as soon as the government has a mandate from the people to start them on the basis of the bill.

    Whatever remains of the Conservative party could then use the bill for the start of negotiations as the basis of its manifesto for the 2030 General Election.

    Hang on in there Europe, we should be able to get back to you with an answer around 2031.

  37. We hear about the “will of the people” but 3 million or more UK citizens were unable to vote due to the residency rule. That may be reasonable for a parliamentary election when issues are about tax, the NHS and other immediate concerns of residents.But this referendum was about the international status of ALL citizens of the UK. It was clearly undemocratic to deprive these of a voice and may well be considered a form of discrimination which is a breech of Human Rights. How can this be brought to a higher tribunal than a High Court which itself is the ;product of a parochial English bar.

    I write as an Englishman whose ancestry is traceable to ten generations much spent in the service of commerce and country around the globe.

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