The UK government has published its bill on the European Union Referendum, setting out how the vote is to be conducted. While prime minister David Cameron will have no trouble getting the bill through parliament, it has caused immediate controversy.
Advocates of a Brexit are unhappy about the wording of the referendum question and those wanting to stay in Europe object to the rules on who will be allowed to vote.
Despite accusations of politics skulduggery, the government has actually gone about its bill sensibly and for all the anxiety about which side gets to campaign for Yes and which for No, the wording in this particular referendum is unlikely to make a huge difference.
Who gets to vote?
The most basic principle in the design of any referendum is that it should be neutral. The easiest way to achieve that is to set out how referendums should be run in as much detail as possible in standing legislation. That way, the same rules apply to all referendums.
The UK does have some standing legislation on referendums, which establishes principles on matters such as campaign funding to help prevent political manipulation on any individual vote.
Unhelpfully, though, there are no set rules on who can and can’t vote in a referendum, so this has to be decided each time.
For the EU referendum, the government has opted to exclude most EU nationals living in the UK, as well as 16 and 17-year-olds and UK nationals who have been living outside the UK for more than 15 years.
Some have criticised the exclusion of EU citizens, and they may well have a point that the franchise is anomalous and restrictive in multiple ways.
But the fundamental point is that the government should avoid tinkering – or the possibility of tinkering – with the franchise on an ad hoc basis. It has successfully done so in this case by choosing the franchise used for general elections. This is the only sensible option – as opposed to, say, using the franchise for local or European elections – since this is a national issue.
How do you ask a question?
The government has decided the electorate will be asked the question:
Should the United Kingdom remain a member of the European Union?
Opponents of the UK’s EU membership are critical of the choice. While acknowledging that the question is simple and straightforward, UKIP leader Nigel Farage noted that Cameron “is opting to give the pro-EU side the positive ‘Yes’”.
When it comes to wording, there is no alternative to taking a case-by-case approach. Each referendum clearly needs its own question. But the law does helpfully require the government to consult with the Electoral Commission on question wording.
And, fortunately, in this case, the Commission has already issued guidance on the Brexit referendum. Across two detailed reports, the commission analysed a range of options and came up with two possible questions that best satisfied its requirements for clarity and neutrality.
The first possibility was exactly the wording that the government has chosen. The second was: “Should the United Kingdom remain a member of the European Union or leave the European Union?”, with the possible responses being not “Yes” or “No”, but rather “Remain a member of the European Union” or “Leave the European Union”.
So the government has chosen a wording that has already been endorsed by the Electoral Commission as clear and neutral. By contrast, the Commission’s research found that some ordinary members of the public felt that the opposite wording – “Should the United Kingdom leave the European Union?” – was biased. What’s more, the Plain English Commission advised that while “Yes” and “No” provide clear campaign slogans for both sides, “Remain” and “Leave” do not. The second option could, therefore, harm the clarity of the campaign.
So, while the Electoral Commission will no doubt want to do further research to explore certain details in more depth than has been possible so far, there is no basis for saying that the government’s choice of question is unreasonable.
Will any of it matter?
But will any of this actually make a difference? With regard to the franchise, EU nationals living in the UK are certainly far more likely to favour continued EU membership than are UK nationals but that doesn’t mean excluding them will significantly sway the vote towards a No.
EU nationals make up only a very a small proportion of the electorate so their choice would affect the outcome only in a very close vote. Fans of the UK’s EU membership are right to think this exclusion works against their cause, but the impact is small.
Reactions to the question wording, meanwhile, clearly manifest a belief that being on the positive “Yes” side carries a built-in advantage. That belief is founded, no doubt, on experience of the Scottish referendum, where the “No” side felt encumbered by the negativity of its core word.
In fact, there is little evidence that “Yes” is at an advantage in referendum contests. In fact, most referendums are won by the “No” side. A comprehensive database of referendums in US states since 1904, for example, shows the “Yes” side has been carried in just 962 of 2,360 votes – a success rate of 40.8%. Australian federal referendums have been even more biased towards “No”. Just eight out of 44 votes – 18% – have passed.
But this pattern almost certainly has less to do with the wording and more to do with the issue. In most (though not all) referendums, the “No” option is the status quo option. And voters are, on the whole, very cautious when it comes to accepting proposals for change.
In any case, how the wording affects the outcome is likely to differ from referendum to referendum. The wording can be expected to have the strongest effect where the issue is one that voters know little about. That can happen in parts of the US, for example, where a series of referendum questions are often asked at the same time as an election, and many of those questions get little public debate ahead of the vote. In this case, many voters may decide their vote just by reading the question and taking a view on the spot, rather than thinking about it in depth beforehand.
In the UK, the EU referendum will be a big deal and the debate will be intense. The effects of question wording are therefore likely to be much smaller. Advocates of Brexit are probably right that association with “Yes” lends a positive sheen, but the effect is likely to be small.
Overall, therefore, the franchise probably helps those who want the UK out a little, while the question probably boosts those who want it in a little. But neither effect is large. That does not mean that the details of legislation on referendums don’t matter – the UK’s referendum regulations do need reform in several ways. On these two particular issues, however, the cries of outrage are greatly overblown.