Brexit and the democratic will (or won’t) Part 1/3

In the wake of a relatively slender vote on Thursday, 23 June 2016 by the British electorate to leave the European Union, the so-called ‘Westminster bubble’ has been thrown – or, more accurately, has thrown itself – into turmoil. Although disappointing and somewhat undignified, this is unsurprising. There are big and new issues at stake.

In the post-referendum debate about the issues (as opposed to the politics), there have been three substantive threads emerging: first, that the vote is somehow unrepresentative or undemocratic; secondly that Brexit represents the biggest risk facing UK markets and businesses which, in light of the widespread expectation of a ‘Remain’ vote, has been unprepared. The third thread is a little different: how to handle the task of negotiating trade agreements, first with the EU, and subsequently with other trading blocs and states. And then there’s the impact of it all to consider.

These are each material issues; all are intertwined. Compared to these issues, the leadership races of the main political parties, are side-shows. Because that is what it knows, the UK political media has fixated on the side-shows. The real, considered attention should, and ultimately must, be elsewhere: it must be on the issues. In a series of brief notes, I will address each in turn.

First up: “the will of the British people” (in three parts). In this part, I’ll sketch the skeleton of the argument.

Even after the vote, it is quite remarkable how ill-informed are many commentators. Legally, the vote was ordered by Parliament under the European Union Referendum Act 2015 and conducted under the provisions of the Political Parties, Elections and Referendums Act 2000. In the UK, unless specified to the contrary in enabling legislation, referenda are ‘advisory’ only and do not direct or constrain Parliament legally; Parliament remains sovereign (protecting the rights of which was, after all, part of the argument of the Leave campaign). But there have only been three, including the most recent vote; one (on proportional representation) would have given immediate effect to subsequent legislative amendments – it was ‘binding’; the others, both on membership of the EEC or EU were not.

While, legally, Parliament, and therefore the Government (as long as it holds confidence), can do with it as it sees fit, practically and politically the picture is more complicated.

The current Conservative government has said consistently since calling the referendum on leaving the EU that it would abide by the result of the referendum. As a consequence, the day after the vote, the Prime Minister who had led the Conservative Party to victory in the general election in May 2015, felt obliged to resign. In his words . . .

the British people have made a very clear decision to take a different path and as such I think the country requires fresh leadership to take it in this direction. I will do everything I can as Prime Minister to steady the ship over the coming weeks and months but I do not think it would be right for me to try to be the captain that steers our country to its next destination.

As a result of his resignation, there must be a process, internal to the Conservative Party, to replace its leader. The winner of the internal process will also, one would expect, chair the Cabinet of Ministers as the Prime Minister. He or she will lead the Government through the period of preparation for exit from the EU.

That exit, formally, is governed by the terms of Article 50 of the 2007 Lisbon treaty, which was drafted in reaction to the rejection in referenda by both French and Dutch electorates of the earlier EU Constitutional Treaty (2005). Under Article 50 (2) of the Lisbon Treaty, the British Government (as ‘Member State’) triggers exit by notifying the European Council of its intention to withdraw. The European Council then “negotiates and concludes an agreement” covering withdrawal and future terms of the relationship with the exiting Member State. Exit occurs two years after the date of notification unless extended unanimously by the European Council. So until there is a notification by the UK, there will be no withdrawal. Will the UK notify the EU of its intention to exit under Article 50 (2)?

The referendum was governed by democratically-established laws. The resignation of the PM and his replacement by the democratically-elected government are governed by the rules of the Conservative Party. The notification of withdrawal will presumably come following a vote to that effect by Parliament, brought forward by the elected Government. Nothing about the process is undemocratic; quite the contrary, the whole thing is the very essence of democracy. Sometimes we disagree with the results of democracy; but our views make the result no less democratic.

In the wake of a result contrary to their wishes, parts of the Remain campaign have asserted that the vote lacks legitimacy, either because it does not represent a sufficiently large proportion of the electorate or because it is, in some way, a tyranny of the majority to remove the nation’s Remain supporters from the EU against their will.

In the next post, I’ll examine the issue of democratic will; in the third, the challenge to that will: the tyranny of the majority.

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