Brexit: Words Matter

Lawyers are often criticised for fretting over words. They are also often condemned for using too many words.

The current debate in the House of Commons over Brexit clearly demonstrates how words matter and how there can sometimes be a difficulty because too few words are used.

The question posed to the electorate in the UK and Gibraltar on 23 June 2016 was a choice between two words: “remain” and “leave”.

“Remain” was fine because it was a binary choice between remaining in the European Union or leaving.  Nothing was changing. The UK would have remained in the EU and there was the deal agreed at the European Council in February 2016.  So the electorate knew what they were voting for by ticking “remain”.

However, the single word “leave” was clearly inadequate. It did not give the electorate a choice as to where they wanted the UK to leave. The word “leave” was just half the story. So, when a majority of people ultimately voted for “leave”, there was no sense of to where the UK would leave. The UK Government had not set out a plan before the Referendum as to what “leave” would mean and it was not possible to discern from the Referendum result as to what was the choice of destination by the UK people.    

It is therefore ironic that more than 1000 days after the Referendum, the House of Commons is now trying to discern what is the will of the people. It is a great pity that the question in the Referendum was not better designed and the meaning of “leave” was not elaborated upon sufficiently beforehand. 

The referendum could have involved a choice for voters and even a two round ballot (which could have been held on the same day with a Remain/Leave vote and then a ballot on what Leave would mean or a two round process). Voters can be given a multiple choice ballot paper - it is the norm in general elections where usually there is a plethora of candidates but there can also be a two round process as used in the New Zealand flag referendums in 2015-2016. One of the lessons is that referendums need to be designed carefully.

For more information on this topic please contact Vincent Power, Partner or any member of A&L Goodbody's EU, Competition & Procurement team.

Date published: 28 March 2019