The meaning of The Clash song Should I Stay or Should I Go is probably sufficiently clear for most people who listen to it. Getting a referendum question right is a more complex affair. The British Electoral Commission has shown us as much by advising that the wording of the question for the forthcoming vote on the UK’s membership of the EU should be changed.
The international code of practice on referendums suggests referendum questions should avoid leading the voter to one choice or another. And the Electoral Commission is obliged to give its view on the wording of referendum questions in the UK. But I fear the commission has made matters worse in its quest for neutrality in this case.
As published, the EU Referendum Bill stated that the referendum question would be “Should the United Kingdom remain a member of the European Union?”. Voters would be given a simple Yes/No choice on the ballot to answer that question.
This was actually the wording originally proposed by the Electoral Commission in 2013.
But after testing this wording, the commission has expressed concern that it might create a bias towards a “Yes” answer. It also wondered whether an alternative question might better grasp the complexities involved in making a choice about the UK’s future relationship with the EU.
It sought to refine the question around two alternative statements rather than a question with a simple Yes/No answer. It has now proposed changing the question to: “Should the United Kingdom remain a member of the European Union or leave the European Union?”
Voters will be asked to select either “remain a member of the European Union” or “leave the European Union”. It has been widely reported that David Cameron has accepted this new wording.
Are you really leaving?
The concept of “remaining” in the EU is reasonably clear. The problem with this new formulation lies in what is actually meant by “leave the European Union”.
Article 50 of the Treaty on European Union — the provision governing the exit of a member state – uses the term “withdraw” and it might be better to use this term rather than a less precise “leave”.
More importantly, a “withdrawal” from the EU must be a negotiated process that ends in an agreement between the EU and the withdrawing state. That agreement will govern the future relationship between the EU and its former member and is likely to result in EU rules continuing to apply to the withdrawing state in areas like access to the European single market.
If by selecting “leave the EU” a voter believed that they were voting for the UK to have a clean break with the EU, they may well feel disappointed with the outcome. The UK may have ceased to be a member of the EU but without having left the EU in any meaningful sense. To turn from The Clash to The Eagles, like Hotel California, you can check out any time you like, but you can never really “leave”.
The serious point is that if a Yes/No question risks bias, this new iteration of the question only introduces a different problem: namely that the alternative statements do not quite depict the consequences that they purport to capture.
Whatever the problems of a polarising binary Yes/No question, they are not solved by giving voters a choice between one relatively clear answer — remain a member of the EU – and one wholly ambiguous response – leave the EU.
A straight question?
There remains quite a lot of merit in the original proposal to ask electors to vote Yes/No on whether the UK should remain a member of the European Union.
This at least reflects a legal reality. The UK is currently a member of the EU and therefore the choice is whether or not that status should continue. It avoids speculation about what the alternative to being a member might entail. Though of course, for some, the problem is the status quo of EU membership and a question which apparently reflects that is itself an impediment to change.
An issue that has not been discussed is whether the wording of the question should really strive towards a kind of agnostic neutrality or whether it should seek to reflect political realities by starting with the world as it is now — that the UK is a member of the EU — and then ask voters whether that should change. This would imply not a bias but a certain onus on those who wish to seek change.
The haste with which David Cameron has endorsed the Electoral Commission’s proposal has pre-empted a debate on the wording of the referendum question and there is still time for further change. Amendments to the EU Referendum Bill can be made in the House of Commons at the Report Stage, scheduled for September 7. This will give an opportunity for further reflection on the wisdom of this proposed change. And that reflection is greatly needed.
By Kenneth Armstrong, Professor of European Law and Director of the Centre for European Legal Studies, University of Cambridge.
This article also appears on The Conversation website.