The question we were asked on 23rd June was incompleteby Oliver Conolly / August 31, 2016 / Leave a comment
We are often told, irrespective of whether or not we voted “Leave,” that there is no way back. We must, no matter how grim the process and the consequences, go through with it. Brexit means Brexit. “Leave” means “Leave.”
This argument is advanced by both Brexiters and by Remainers—the former, triumphantly, and the latter with resignation.
It is, however, nonsense. There is one underexplored reason why this is so. There are other reasons—the misrepresentations of the Leave campaign, the fact that only 37.5 per cent of the electorate actually expressed a wish to leave the EU by voting “Leave,” and the fact that the vote is not binding—which have been rehearsed elsewhere. The question I want to explore here is: does “Leave” actually means “Leave”?
The question on the ballot paper was:
“Should the United Kingdom remain a member of the European Union or leave the European Union?”
That seems straightforward enough. However, take the following example. Suppose I were to ask my wife the following question:
“Would you like to go out on Friday evening?”
A natural response would be “Go out and do what?”
I could riposte: “It’s a Yes or No question, I require a Yes or No answer”—although her response would likely be conveyed by a divorce lawyer.
You see the point. The question asked was incomplete. What if, in response to the question, she said “Yes, all right”? Friday night comes round. She may have a number of expectations as to how the evening will be spent together—going to the cinema, or a theatre, or out for dinner. I decide instead that I want to spend the evening sitting on the Circle Line. I could say that she had committed to going out on a Friday night. “Yes,” I might tell her, “means Yes.”
This time the men in white coats, as opposed to the divorce lawyers, would come for me. My wife would quite rightly point out that the question, construed sensibly, and which formed the basis of our agreement, was:
“Would you like to go out on Friday evening and do something with me which a couple might reasonably be expected to want to do on a Friday night?”
The question, as asked, was incomplete.
Similarly, the question, “Do you believe that the UK ought to leave the EU?” is incomplete. There are two ways of interpreting it:
“Do you believe that the UK ought to leave the EU provided satisfactory arrangements can be reached with the EU member states?”; or
“Do you believe that the UK ought to leave the EU, no matter what the consequences, even if they are highly damaging to this nation’s prospects?”
If the first interpretation is the right analysis, it follows that whether or not the UK does leave the EU is dependent on the terms on which an exit can be negotiated. If the terms are acceptable, then fine. If not, not. On this analysis, a further decision needs to be made, be it by Parliament or through a second referendum. Such a decision would need to be made when at least the outlines of a deal, or a range of possible deals, becomes clear.
If on the other hand the second interpretation is the right analysis then the UK must press on with Brexit come what may (subject to arguments not being discussed here).
There are two reasons why interpretation one is the right analysis.
The first is that when a question is incomplete, it must be filled in one way or another. The courts do this all the time with contracts. The express terms of contracts often omit to provide for certain eventualities. In those cases the court has to decide whether to read into a contract a form of words which could have been stated expressly but was not. This is called an implied term. A term is implied into a contract if an “officious bystander,” if asked, would say that it is clear that it must have been part of the bargain between the parties.
This approach is premised on the notion that the parties to a contract are reasonable. What would be the result of applying that approach here? Would a reasonable “Leave” voter to go for option two—i.e. leave even if the interests of the country are seriously jeopardised? This would be, on the face of it, a highly unlikely stance for such a reasonable voter to have taken.
There is an alternative approach which does not, unlike the law of contract, assume that parties to an agreement are reasonable, and simply looks at what the parties to an agreement actually believed and thought. What is the result of taking into consideration the reasons why “Leave” voters voted as they did?
There is no evidence that they did so because they were willing to damage the nation’s prospects. They received assurances from the Leave campaigners that the UK had, as a result of its trade deficit with the rest of the EU, a strong negotiating position, and that a satisfactory deal would be reached. They rejected what they were assured was the mere scare-mongering of the Remain campaign.
The Leave campaigners were, by giving these assurances, accepting that the issue of the terms of an exit was a legitimate one. Had they adopted interpretation two of the referendum question, they would have said that these concerns were, strictly speaking, irrelevant. But no Leave campaigner suggested during the campaign that the question must be understood as interpretation two, and informed the public that they voted “Leave” at their own risk. It is difficult for them to argue for it now.
So, irrespective of whether one approaches the analysis by assuming that Leave voters were reasonable, or by looking at their actual motives, one reaches the same conclusion. The answer to the question “Does Leave mean Leave?” is “Not necessarily.”