A mug's game? "Even now, averting Brexit would leave British self-mastery intact
By Dr Brian Flanagan, Department of Law
The Brainstorm long read: none of the ideas put forward by Brexiteers imply that Britain’s sovereignty rests on implementing the 2016 referendum
While promoting his latest film Going in Style, the actor Michael Caine explained that his vote for Brexit was a vote to be "a poor master [rather] than a rich servant". A desire for sovereignty is a big part of both the case for Brexit itself and the case for respecting the 2016 referendum result, whatever Brexit’s merits.
Given the pessimism of its own assessments of Brexit’s economic impact, sovereignty has become ever more central to the British government’s pursuit of an historic split in Western politics. But the precise role of sovereignty in the Brexit debate is opaque. Fortunately, Caine is again on hand. Counselling Christian Bale’s Batman in The Dark Knight, Caine’s Alfred memorably recalls how he once located an elusive quarry by "burning the forest down".
The same tactic applies to understanding what, if anything, Brexit might mean for British self-mastery. To make headway, we must distinguish three ideas which Brexiteers cite: democracy, local policy-making and playing fair. On investigation, none of these ideas implies that Britain’s sovereignty rests on implementing the 2016 referendum. Even now, averting Brexit would leave British self-mastery intact.
A question of democracy
Brexiteers invoke a perfectly respectable theory of democracy in that a state’s laws should depend solely on the wishes of its inhabitants. They assume that democracy therefore precludes laws that depend on the votes of non-inhabitants such as continental MEPs and their constituents. On this, both Brexiteers of the right, such as former Secretary of State for Northern Ireland, Theresa Villiers, and the left, like academic Alan Johnson, are agreed.
Equally, nobody thinks that a state’s laws should depend on the wishes of inhabitants about the laws themselves. That principle would require dramatic changes in the UK’s form of government, with all legislation henceforth to be put to referendum. Rather, it is the inhabitants’ wishes as to who gets to make the law that count. For Brexiteers, British democracy consists of British elections. EU legislation is not subject to British elections and, therefore, is undemocratic: "[W]e have let supreme law-making power pass to people we do not elect and we cannot remove". But actually, Britain’s supreme law-making power has continued to reside entirely with elected MPs.
Britain’s laws throughout its membership of the EU have depended entirely on the policy priorities of those whom the British elected to decide the laws
We hear a lot about the EU’s "democratic deficit". At first glance, it does seem that the EU lacks a feature of democracies everywhere, which is the opportunity to "throw the scoundrels out". Of course, a member state can remove its own EU officials, but they comprise a just small minority of the voters who decide upon EU-wide directives and regulations.
However, on taking a step back, it becomes apparent that it has been open to a member state to remove all EU input from its legislative processes, at least since the introduction in the Treaty of Lisbon of an explicit mechanism of exiting the EU. The very fact that this mechanism existed to be triggered by Theresa May in March 2017 proved that they could remove that input at will - just as elected British MPs had repeatedly chosen, in successive acts of Parliament since 1972, to increase the EU’s input into British legislation.
From RTÉ Radio One's Drivetime, London correspondent Fiona Mitchell and Europe Editor Tony Connelly talk about Theresa May's announcement of the departure of the UK from the European Union
It follows that Britain’s laws throughout its membership of the EU have depended entirely on the policy priorities of those whom the British elected to decide the laws. On deciding them by reference to EU criteria, MPs retained "supreme law-making power". Consequently, if as Brexiteers believe, democracy is just about the opportunity to turf out unwanted law-makers, then the very possibility of Brexit means that Brussels’ input into Britain’s laws is not undemocratic. Hence, the preservation of British democracy is no reason for Brexit.
Even though it is not a standalone reason for Brexit, perhaps democracy demands the implementation of the 2016 plebiscite that, rightly or wrongly, endorsed the policy? So thinks former Prime Minister David Cameron: "I am sorry we lost the referendum but you have to accept the result of the British people… I’m a democrat". Others, including Cameron’s predecessors, Tony Blair and John Major, argue that democracy is consistent with making Brexit conditional on the outcome of a second referendum.
Former British prime ministers John Major and Tony Blair in Derry in June 2016. Photo: Jeff J Mitchell/WPA Pool/Getty Images
But adopting the Brexiteer’s definition of democracy, democrats are quite entitled to ignore the 2016 vote altogether. The British people elect the members of Parliament who, in turn, decide on whether Britain’s laws will benefit from the EU’s input. Accordingly, just as the dependence of British laws on British elections is undiminished by MPs defiance of a campaign promise, such as by their repeal of the poll tax, so it would be undiminished by their revocation of Britain’s triggering of Article 50. The composition of the following Parliament would remain at the disposal of the British people. Consequently, just as democracy was no reason to vote for Brexit in 2016, it is no reason to defer to that vote in 2018.
Our country, our laws
The risk to British sovereignty posed by EU input into British laws is not characterized solely in terms of its threat to British democracy: "on June 23 the British people gave a clear mandate for the UK Government to leave the EU and take back control of our… laws". Although Brexiteers do not always clearly distinguish the value of democracy from the value of local policy-making, the latter might provide an independent reason for Brexit. There are two ways of interpreting the demand for "control of laws" that invoke this second value: one focuses on laws and one focuses on control.
"Britain’s supreme law-making power has continued to reside entirely with elected MPs"
The first interpretation of the need for British control of laws justifies Brexit on the basis of its predicted advancement of a particular policy agenda. Thus, for those who favour a policy agenda that is more readily enacted in the absence of EU input, the idea of excluding such input may seem compelling.
Remarkably, however, Brexiteers comprise supporters of two diametrically opposed agendas. Whereas one group supports Brexit on the assumption that it will lead to a welcome reduction in economic regulation, the other does so on the assumption that it will lead to an overdue increase. Accordingly, to favour Brexit on the basis of its advancement of a policy agenda requires high confidence that those banking on Brexit to deliver the very opposite agenda are mistaken.
One group supports Brexit on the assumption that it will lead to a reduction in economic regulation; the other group assumes that it will lead to an overdue increase
Crucially, the desire for "control of laws" has nothing to do with collective self-mastery. If we simply swapped their predictions regarding Brexit’s policy effects, both left-wing and right-wing Brexiteers would be prompted to support a continued and possibly increased EU input into British law-making.
The alternative interpretation of the demand for British control of laws does not refer to any particular policy agenda. Instead, it invokes the principle that the quality of policymaking is improved if each individual community that would be subject to a particular decision decides on its own behalf. On this understanding of the objective of local policy-making, collective self-mastery is back in the picture.
"The fact that the 2016 vote may be lawfully ignored is no mere technicality"
It is doubtful, though, that the collective in question is the UK. The principle just described prioritises instead the communities that the UK is acknowledged to comprise, namely, England, Scotland, Wales and Northern Ireland. Conversely, the principle’s application extends equally to decisions about regulatory alignment with the EU. After Brexit, however, the question of whether an individual UK-wide regulation aligns with the EU will become a matter for the Westminster Parliament. In light of the fact that large majorities of voters in Northern Ireland and Scotland rejected leaving the EU, this implies that Brexit would turn over their control of laws to the UK rather than British communities.
Respect for democracy is not the only consideration that is thought to make the 2016 referendum binding. For some, the simple principle of fair play applies: "the decision to proceed [with the referendum]… fairly governs how we jointly are to decide". In the aftermath of the referendum, current Prime Minister Theresa May appealed to this principle: "the campaign was fought, the vote was held… there must be… no second referendum". Remember, May also ruled out a general election until 2020.
Concerns about fair play are also evident in Brexiteers’ disapproval of Ireland’s second referendum on the Treaty of Lisbon, which saw a 21 point swing yielding a 67 percent majority in favour of ratification: "Ireland… voted against it. So Ireland was told to vote again until it got it right". Equally, fair play appears to be at the heart of Foreign Secretary Boris Johnson’s recent warning that "to reverse the referendum vote… would be a disastrous mistake that would lead to permanent and ineradicable feelings of betrayal."
But in the case of the Brexit vote, it is not altogether clear that "before we decide to ignore it, we need a better reason than that the majority was wrong to vote that way". Echoing the weight of academic opinion, the UK courts have ruled that the Brexit referendum was advisory only.
"By voting at the 2015 election for parties other than the Conservatives, many citizens ostensibly rejected the very idea of a referendum on Brexit". Photo: Odd Andersen AFP/Getty Images
The fact that the 2016 vote may be lawfully ignored is no mere technicality. It means that one might be perfectly committed to a procedure for authoritatively settling policy differences between fellow citizens, namely, the legal system, without being in any way committed to treating the referendum as settling the issue of Brexit. In one sense at least, the idea of betrayal is out of place: if parliament and the pro-EU citizen did not strictly make the referendum decisive of Brexit, then neither parliament, nor the pro-EU citizen, strictly betrays anyone by deciding, contrary to the referendum, to remain in the EU.
But perhaps the threat of betrayal is subtler. Consider the sort of betrayal we might attribute to a political party which campaigned on a promise not to permit third-level fees to be raised and then, on being elected to government, promptly abandoned this promise.
No-one who values Britain’s EU membership should be discouraged from fighting for it by fears that the effort would weaken British sovereignty
Prior to the Brexit vote, the UK government asserted in its official campaign pamphlet "[t]his is your decision. The Government will implement what you decide". This statement, which was affirmed by the official opposition, introduced scope for a similar sort of betrayal of Leave voters. Crucially, the scope for such betrayal is not a reason for respecting the referendum that applies generally. Rather, it applies only to those who actually made the campaign promise in question, that is, those on whose behalf the referendum pamphlet was truly speaking.
At the 2015 general election, the Conservatives were only major political party that proposed to hold a referendum on Brexit. The proposal’s inclusion in the party manifesto represented a bargain between those members who supported Britain’s membership of the EU and those who were opposed. Few others who wanted Britain to remain in the EU advocated a referendum on the issue.
Was it all for this?
The government’s campaign pamphlet cannot seriously be construed as speaking on behalf of this sort of Remain voter. By voting at the 2015 election for parties other than the Conservatives, many citizens ostensibly rejected the very idea of a referendum on Brexit; accordingly, they offered no commitment to Leave voters that they would abide by one. In agitating for the 2016 vote to be disregarded, their position is therefore simply that of an opposition party facing a government that seeks to enact a campaign promise that the opposition believes would harm the national interest.
No-one would expect the opposition not to do everything it could to resist the policy’s promised enactment, and, in the event of enactment, not to do everything it could to achieve the policy’s repeal. Indeed, in the case of Brexit, the opposition can challenge the many Remain voting members of the government, including, notably, the Prime Minster herself, to weigh the keeping of their campaign promise to Leave voters against the policy’s acknowledged impairment of British interests.
Equally, anyone who voted Labour at last year’s election in virtue of its retrospective commitment to honour the referendum took their chances that Labour MPs would ultimately prioritise that commitment over their declared understanding of the common good: "Labour accepts the referendum result and a Labour government will put the national interest first".
A change in Britain’s attitude might not suffice to avert Brexit. But no-one who values Britain’s EU membership should be discouraged from fighting for it by fears that the effort would weaken British sovereignty. Caine’s most apt advice to Brexit Britain might perhaps be different: "why do we fall sir? So we that we can learn to pick ourselves up".