Resist Brexit!

anti-brexit-rallyBrexit can and should be resisted, and it can and should be stopped. Those of us who voted Remain in the EU referendum and who regard Brexit as potentially (for it hasn’t actually happened yet) the most disastrous event in modern British history have every reason to keep fighting and grounds for cautious optimism about success. As Martin Kettle has written in The Guardian, this is a long game: the complex process of leaving the EU has not even begun, and assuming that Article 50 is triggered in March next year it will likely be two years, possibly longer, before any formal agreement to leave has been reached. For the Remainers, there is time to mount a determined fightback; for the Brexiters, who have so far revealed themselves to be lacking any sort of coherent plan, who are divided among those who want variations of ‘hard’ or ‘soft’ Brexit, who are increasingly having to explain why they no longer stand by many of the claims and promises made during the referendum campaign, and who are facing growing evidence of the economic, cultural and social disarray that Brexit will cause, the problems will only accumulate.

Many Brexiters have argued that Remainers (or Remoaners as they are fond of dubbing us) should shut up since the ‘will’ of the British public is for Brexit; some, notably the Daily Mail and Daily Express, have gone so far as to accuse those opposing Brexit of being unpatriotic subverters of democracy, in effect suggesting that we are traitors. As I noted shortly after the referendum result, 17 million people voted for Brexit out of a population of 65 million; that amounts to 26% of the population as a whole, and about 38% of the electorate—hardly numbers that reflect a clear and emphatic ‘will of the people’. Even the headline (and most important) figure of 52% does not amount to such a general ‘will’; it simply reveals that a narrow majority of those who could be bothered to vote on 23 June favoured leaving the EU in one form or another. Unless the 48% who voted Remain (and the 74% of the population who, for one reason or another, have not expressed any desire to leave the EU) are no longer to be considered as part of the ‘British public’, any claims that the Brexiters speak on behalf of the ‘will of the people’ should be rejected as arrogant and unjustified. Put simply, they speak for the 17 million who voted for Brexit, no more, no less.

The 17 million do, of course, represent a majority of the vote. But the UK is a democracy, and as such the right of the 48% to continue opposing Brexit, through argument and debate, through democratic and legal means, should be respected. A democracy does not work on the basis that all those who lose a vote are immediately expected to abandon their position and adopt the position of the winning side—if it did, then it would cease to be a democracy and become instead a tyranny of the majority. It may be that the Remainers will not ultimately succeed in resisting Brexit, but that in no way means they do not have the right to resist it democratically. Those Brexiters who think that right should be denied the Remainers are adopting a dangerously anti-democratic stance (in keeping with their ‘enemies of the people’ attack on the judges who ruled that parliament must be consulted about triggering Article 50). Fundamental to democracy is inclusive debate, in which the views of all sides are heard; anyone, whether Brexiter or Remainer, who supports democracy should welcome an ongoing and vigorous debate about Brexit, the right of all sides to make their strongest cases, and the right of the 48%—just as much as that of the 52%—to be represented in those debates.

Equally to be rejected is the Brexiters claim that Remainers are ‘unpatriotic’. Those of us who continue to argue for Remain do so on the basis that Brexit will be enormously damaging to the UK. Remainers are determined that Britain avoids this damage; we believe that for Britain to flourish and prosper, it needs to be an open, inclusive, tolerant country within a Europe founded on cooperation and integration. There is nothing ‘unpatriotic’ about campaigning for the best interests of the UK; the implication that Remainers are anti-British is a nonsense. And there is something perverse about a ‘patriotism’ that is willing to risk the sort of long-term damage to the UK that Brexit is likely to cause.

Brexiters are fond of dismissing Remainers as metropolitan elites—part of their argument that we do not speak for ‘the people’. The tendency (on both sides) to portray the referendum result in terms of simple divisions—young versus old, graduates versus non-graduates, cities versus the rest of the country, and so on—should also be rejected. A significant proportion of people in London, Manchester and Birmingham (and the many other areas that were majority Remain) voted for Brexit; and a significant proportion of people in majority-Brexit areas voted for Remain. The notion that Remainers are an elite is laughable to most of us: any elite which includes someone like me—economically poor, insecure in employment and housing, highly critical of neoliberalism—is a strange one indeed. As for the supposed ‘representatives of the people’ such as Nigel Farage, Boris Johnson, Liam Fox, Douglas Carswell, Rupert Murdoch and the Daily Mail: if standing in a gilded elevator with the multi-millionaire president-elect of the United States (and angling to become UK ambassador to the US, not to mention numerous attempts to become part of Westminster), if public school education and privilege and hedge-fund financing and corporate global media, are considered the marks of the non-elite, then we have entered unusual times. Many of the most prominent Brexiters—Michael Gove, John Redwood, Iain Duncan Smith, Christopher Grayling, and the like—have energetically promoted policies of austerity that have hit hardest the very non-elites that they now claim to represent. The underlying truth, obscured by so much of the rhetoric, is that neither Brexit nor Remain stand for elites or non-elites; they are opposed positions in relation to EU membership, positions which attract the support of both elites and non-elites.

A compelling case can be made, therefore, to reject the demands of those Brexiters for Remainers to be silenced and for debate to cease. Such Brexiters are adopting anti-democratic rhetoric and simplifications intended deliberately to distort discussion. Right now, what is needed above all is a properly democratic debate. Article 50 will be triggered, and a process to leave the EU will start; that needs to be scrutinized and argued about, and the views of the 48% need to be part of that debate. Even if the UK ultimately leaves the EU, the terms of Brexit require careful debate. All we know at present is that 17 million people voted to leave the EU; we do not know what sort of exit they wanted, and there is no evidence that 52% of voters favoured a ‘hard’ Brexit. Almost certainly large numbers of the 17 million did not vote for ‘hard’ Brexit, which may end up being the only form of Brexit left on the table—and is the form of Brexit that many of the most vocal Brexiters are pushing for. At the very least, Remainers will play a vital role in ensuring that any ‘hard’ Brexit is decisively defeated.

Brexit may happen; but it is not inevitable. The Liberal Democrat victory in the Richmond by-election was the result of opposition to Brexit. Cross-party initiatives are being forged to fight Brexit (and, in particular, ‘hard’ Brexit). The calls for a future referendum on the outcome of the Brexit negotiations are being made with increasing persuasion. Brexit is not a done deal; right now, as illustrated by the shambolic early stages of the process, it is ludicrous to talk about Brexit as a reality when those who want it are so clueless about what form it will take and what it will entail. Two years (or more) is an extremely long time in politics, particularly when the economic fall-out from the referendum result is likely to become more acute. As Martin Kettle suggests, time is on the Remainers side (and certainly time favours the Remainers more than it does the Brexiters), and it is a matter of continuously chipping away every day at the increasingly weak Brexit position, resisting outright ‘hard’ Brexit, making the compelling case through debate and democracy for Remain, and turning the 48% into 50+%. Those of us who support Remain should be making the case, clearly, confidently, positively and passionately—and repeatedly. We should be up for the fight ahead. As long as we are, we have good chances of success.

A reckless and cavalier abuse of democracy: The democratic failings of the EU referendum

The EU referendum has inflicted potentially huge damage on democracy. Superficially it has the appearance of a great democratic event. In reality it risks bringing democracy into disrepute. In the wake of the vote for Brexit, Kenneth Rogoff, a professor of economics and public policy at Harvard University, has written an excellent, thoughtful article on this: ‘Britain’s Democratic Failure’. What follows is largely my own reiteration and comment on his argument.

At the outset it is important to be clear about two things. The first is that I unequivocally believe in democracy. The quotation attributed to Winston Churchill that ‘democracy is the worst form of government apart from all those other forms that have been tried from time to time’ expresses a view that I share. In relation to the referendum the question is not about democracy versus anti-democracy, but about whether the referendum was the best democratic way of deciding the issue of Britain’s EU membership. As I suggest below (and as Rogoff argues) it was actually a fairly terrible way of going about the decision.

Secondly, it needs to be emphasized that the question posed by the referendum was not a typical political issue. The gravity, importance and implications of the result were repeatedly discussed during the campaign—although little of this resonated with the wider public. The overwhelming majority of legal, constitutional, economic and financial experts warned of the dangers of Brexit, both in the short and long term; at the very least, this was an indication that the issue needed to be treated with great care and thoughtful consideration.

It is right that in a democracy questions of such fundamental importance as EU membership are decided democratically. But was a referendum the best way of doing so? And if referenda are in general a good way of making (some) political decisions, was the specific vote over EU membership a good example of a referendum? There are persuasive grounds to answer ‘no’ to both of these questions, and in particular the second of them.

To answer the first question it is important to distinguish between two forms of democracy: direct and representative. Direct democracy involves the people (or, more typically, those people who qualify as citizens) as a whole deciding on policy. There are few examples of direct democracy: the most famous is ancient Athens in which adult male citizens (constituting about 10% of the overall population of the polis) voted individually and directly on all legislative and executive matters. Some modern democracies—notably Switzerland and some constituent states of the USA—resort to direct democracy (through referenda) on various issues, but no modern democratic system can be described as a direct democracy.

The British political system is an example of a representative democracy: citizens do not vote directly on legislative and executive matters, but rather elect representatives to decide these matters. There are very good reasons why representative democracy is vastly preferable to direct democracy. Unlike ancient Athens, modern democracies are not small city-states in which the labour of women, slaves and foreigners enables the small number of citizens to participate in politics; they are large, highly complex societies and economies in which universal participation in politics would be impossibly unwieldy, beyond the capacity of most individuals to make informed decisions, and fraught with political risk. Representative democracy, by entrusting decision-making to elected officials dedicated to the sophisticated and difficult task of politics, is a rational and sensible arrangement for modern society and one that minimizes the risks of direct democracy.

The EU referendum illustrates some of the risks of direct democracy. On an issue of long-term and national importance, a fraction over half the voters (and little more than a third of the electorate) has overruled the wishes of a fraction under half the voters (and nearly two thirds of the electorate). It invited members of the public to decide on an issue likely to lead to national and international instability, with unpredictable risks and dangers both to Britain and the wider world. Many British citizens are educated and well informed, and are capable of weighing up the issues in a balanced, intelligent, critical and careful way. But many more are not. It is clear that many voters had little real idea of the issues; many voters engage rarely, if at all, in political debate, and, in so far as they do, rely on tabloid newspapers for their political information. Furthermore, there is the possibility that extraneous and irrelevant factors—the weather on polling day, the national mood in relation to Euro 2016, prejudice against immigrants that had nothing to do with the EU debate, a vote against Cameron or a vote for Boris (rather than a vote on EU membership), a vote based on no more than instinct or emotion—played a part. Any national vote is liable to be affected by contingency; the national mood now is not the same as the national mood a few months ago or the national mood as it will be in a few months’ time.

The referendum delivered, therefore, a snapshot of a deeply divided public mood on a particular day, and a result that statistically involved only a tiny margin between those who voted Leave and those who voted Remain. And yet the result is likely to affect many millions both in Britain and abroad who did not vote, as well as generations of people to come.

Rogoff comments that ‘the real lunacy of the United Kingdom’s vote to leave the European Union… was the absurdly low bar for exit’. In other words, the problem was not so much that a referendum was held in the first place, but rather that the specific EU referendum was fundamentally flawed in its design and conception. Above all, a ‘decision of enormous consequence… has been made without any appropriate checks and balances’. In Rogoff’s words: ‘This isn’t democracy; it is Russian roulette for republics.’

This is surely right. In a robust democracy, even comparatively minor issues go through rigorous and careful procedures. Checks and balances are built into the process. Legislation is debated and voted on several times; it has to pass through committees and both houses of parliament; and bad legislation can be amended or repealed. Select committees scrutinize the work of the executive; parliament holds the government to account. In other words, for all its problems, idiosyncrasies and weaknesses, parliament works according to procedures designed to ensure political decisions come under thoughtful consideration and are not rushed. Even for minor laws, parliamentary procedure is robust and rigorous, embodying important checks and balances.

The debate over EU membership is far from a minor issue; on the contrary it is the most important in recent British politics. Yet it is hard to claim that the referendum was designed with the robustness and rigour normally found in British political decision-making. To allow a decision of this magnitude to be reached by a simple majority of the public on a single day after a campaign of a few weeks (and of extremely poor quality) would seem laughable if it were not so tragic. The absurdity of this was compounded by the fact that the electorate were offered the option to leave the EU but without any proper debate or information about what would happen if that option was (as it turned out to be) successful. In effect the referendum was offering two paths, but one of which was blind, difficult and lacking in any map or guide.

For all this the Prime Minister bears a heavy responsibility. For it was Cameron who pledged a referendum—not for democratic reasons but in the expectation that by doing so he would end divisions within his own party and see off the threat of UKIP (instead, in a grim irony, he exacerbated divisions and handed victory to UKIP). Worse than his high stakes gamble—he bet the nation, and possibly Europe, in order to win a narrow tactical victory—was the reckless and ill-considered design of the referendum itself. There were various ways in which he could have built checks and balances into the process: he might have demanded a demonstrably clear majority (e.g. 60-40) of the voters, or a majority of the electorate as a whole; he might have insisted that the outcome of a Leave vote in the referendum would simply trigger a second referendum at a defined point in the future, allowing for further consideration and debate as well as a much clearer understanding of exactly what Brexit would entail; he might have required that an outcome of Brexit was only valid if all four constituent countries of the United Kingdom had voted in favour of it; he might have indicated a clearer role for parliament in the decision; or he might have implemented two or more of these checks and balances. But he did none of these things, doubtless fearful of antagonizing UKIP and the right-wing of his own party. The referendum was a hubristic abuse of democracy on the part of Cameron that threatens to bring democracy itself into disrepute.

However, an important note needs to be added to the above. In a campaign of extensive mendacity, the Leave campaign did not have a monopoly on lies: the Remain camp told a few too. Cameron claimed that the day after a Leave vote he would invoke Article 50, thereby irreversibly beginning Britain’s exit from the EU. Not only did this not happen—it was never likely to, and was presumably a dishonest but unsuccessful campaigning scare tactic—but the claim was fundamentally dishonest in the first place. Neither constitutionally nor legally is it in the power of the Prime Minister to trigger Article 50; rather it is parliament’s decision whether and when the process of Brexit begins. We may be grateful that, despite Cameron’s cavalier and reckless abuse of democracy, British constitutional law has within it a potentially vital parliamentary check on the ill-conceived referendum and its disastrous outcome.

Nick Barber, Tom Hickman and Jeff King: Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role

Nick Barber, Tom Hickman and Jeff King: Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role

This is an excellent contribution by three experts on constitutional law to the Brexit debate, specifically in relation to the issues surrounding Article 50. It presents a clear and convincing case that, both constitutionally and legally, it is parliament rather than the Prime Minister who decides on triggering Article 50 and hence Brexit.

UK Constitutional Law Association

Barber-Hickman-KingIn this post we argue that as a matter of domestic constitutional law, the Prime Minister is unable to issue a declaration under Article 50 of the Lisbon Treaty – triggering our withdrawal from the European Union – without having been first authorised to do so by an Act of the United Kingdom Parliament.  Were he to attempt to do so before such a statute was passed, the declaration would be legally ineffective as a matter of domestic law and it would also fail to comply with the requirements of Article 50 itself.

There are a number of overlapping reasons for this. They range from the general to the specific. At the most general, our democracy is a parliamentary democracy, and it is Parliament, not the Government, that has the final say about the implications of the referendum, the timing of an Article 50 our membership of the Union, and…

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