16 January 2019

The question of the question

A second referendum on Britain’s EU membership is looking more likely. The first question is what’s the question? There are dozens of options. Here are some of the front-runners:

  • In or May’s deal? Should the United Kingdom leave the European Union on the terms negotiated by Theresa May’s government, or should it remain in the EU?
  • May’s deal or No Deal? Should the UK leave on the government’s terms or without any negotiated settlement?
  • In or No Deal? Should the UK remain on the current terms of membership or without any negotiated settlement?
  • In, May’s deal or No Deal? Should the UK a) remain in the EU on the current terms of membership b) leave the EU on the terms negotiated by the government, or  c) leave with no deal?

The question is a devil. Chris Cook analyses the dynamics.

For some of its ardent supporters, Brexit is a bit like a British French Revolution. But, for a lot of Britons, it has been a bit more like trying to revise for an exam on the French Revolution.

Never has a popular revolt involved so much homework about bureaucracy, international relations and interminably shifting factions. But we are where we are. The UK held a referendum. The genie is out of the bottle. Vox populi, vox Dei.

If Britain is to walk back its 2016 decision to leave the European Union, it probably needs to hold a new referendum. Indeed, it is hard to see some of the options being discussed for leaving the EU getting through the House of Commons without a referendum rubber stamp.

That may sound simple: after all, MPs have rejected the deal Theresa May negotiated with the remainder of the EU by 432 votes to 202. But a referendum does not just require MPs to reject things. It requires them to pass a law calling for it. We are not nearly there yet. And there is a problem that may be insuperable.

The question

If MPs vote  to hold a referendum, there is a lot to worry about. But a central issue is what actually appears on the ballot. Indeed, at a ThinkIn on Monday, Tortoise members were asked if they would support a new referendum. “What’s the question?” a number of them shouted before they would answer. Quite right, too. The choice of question would determine the whole campaign, its legitimacy and the result.

To start with, let us consider the three obvious options for Britain’s route forward on Brexit. These are the default options when people in Westminster consider a second referendum.

The referendum ballot could offer any two of those three options, or a choice between all three.

So what should the question be?

Let us start off simply: assume we put those three choices on the ballot and suppose we have a “first past the post” vote. Which of these do you want? Electors put one cross in the box by their choice and we just count them all up. Simple. But also problematic. A winner might only get about a third of the votes.

Polling has consistently suggested that Remain could win on such a question: it now leads with a bit more than 40 per cent in the polls. But consider this: how would voters respond to undoing the 2016 Leave vote (52 per cent) with a 42 per cent vote for Remain?

Perhaps, then, we should use the “alternative vote” (AV) system: voters mark their first and second preferences. If their top choice comes in last place, their vote is switched to their second choice. Research from November found AV would land on May’s deal on second preferences.

Would that be more legitimate? In countries where voters are used to transferable votes, surely yes. But Britain had a referendum on adopting AV in 2011, and it was crushed – by 68 to 32 per cent. A key argument mounted against it was that you can’t let second-choice options win.

Allowing three choices will create legitimacy problems for the result. But good luck picking just two for the final heat.

There would be a logic to a vote which is a simple choice between “no deal” and May’s deal. The argument goes: “We decided to leave. Remain is done. This is just about how we leave.” But this would exclude the single most popular of the three choices – Remain – from the ballot.

You can also sketch out a route to a vote between Remain and May’s deal: at its simplest, if a large number of parliamentarians think “no deal” is an unmanageable disaster that only rogues would ever advocate, they may feel duty-bound to take it off the ballot. But it means a lot of Brexiters’ first choices are no longer available.

Finally, MPs might propose a vote between Remain and “no deal”. Get rid of the May deal – an option that MPs have rejected so decisively. The argument for this is: “We appear to be heading for ‘no deal’ anyway. Is this really what Leavers voted for in 2016?”

But could one logically offer two options that neither of the two big national parties currently support?

All of these questions have issues. But this ballot paper is not being designed by philosopher kings nor handed down on tablets of stone. It is being written by MPs.

Bear that in mind: the price of building a majority for a second referendum may be including other ideas that are currently only in limited circulation. What of Labour’s plans for a customs union? And what of some of the schemes cooked up by backbench MPs? Super Canada? Norway Plus? Suez Plus? Mega Yorktown? Fantasia Minus? (I may have tuned out when some of these schemes were being discussed.)

Any two-option question is hard to defend. If one of the options is something out of left-field, it is surely impossible. But – I’m really sorry, we’re not done yet – if there is a broader range of choices on the ballot, there is another issue that stems from it.

Our law states that each option should get a “designated campaign”. So a group of campaigners in favour of each option on the ballot would each get some public support, broadcast opportunities and a higher spending limit.

If we had a three-way vote, that would mean the Remain campaign would face two Leave campaigns: twice the spending and air time. The two Leave campaigns may be campaigning for separate outcomes, but might campaign to send their supporters’ second preferences to one another. That might feel a bit rum for Europhiles.

Now imagine what that would look like if, say, there was one Remain campaign and three or four Leave campaigns. The campaign for a new referendum has been led by Remainers, but we may not get the fight some Remainers think they are going to.

There are other practical questions. The Electoral Commission, Britain’s voting watchdog, is a paper tiger. You do not need to believe that either Cambridge Analytica, Russian plotting or illegal spending determined the result in 2016 to note that the law was very publicly undermined and undercut during that campaign. A fresh vote would happen with an unreformed overseer.

Furthermore, even if we could sort the legislation – including the question – it is quite hard to compress the actual campaign period much below ten weeks: four weeks when people can apply to become the “official campaigns”, two weeks for their bids to be considered and four weeks of arguing.

But under current EU and UK law, we leave the EU on March 29. So a referendum would require an extension of our EU membership for that process. This could get awkward: we would need the consent of our European friends – and they want us out before the new European Parliament starts sitting in July. Time is a problem.

There are a lot of bad arguments against a fresh vote: democrats should treat threats of violence with the contempt they deserve. Be wary of talk of disappointing voters, too. Adults do not need coddling.

But it will be hard to make it happen: there are no unproblematic questions – and our parliament may not approach this in the right frame of mind.

Compromise is out of vogue. To return for a moment to the French Revolution, the moderate girondins are not making the running. The hard-line montagnards are leading.

Or were they the other way around? I lose track.