June 27, 2016

   5' reading time

The United Kingdom has voted to “leave” the European Union (the notorious “Brexit”), apparently stunning¹ the media, politicians and businesses both in the UK and abroad.

I will first argue that the post-referendum chaos can provide valuable lessons on what and how questions should be settled through direct democracy. I will then contend that the UK will probably not end up leaving the EU after all, and discuss why this is a more serious peril for the EU than Brexit itself.

Two lessons for direct democracy

An incredible political crisis, engulfing both the Tories and Labour, Northern Ireland and Scotland, has begun to unfold. It is now utterly clear that nobody knew what to do in case of a victory of “leave”, the very least the proponents of “leave” themselves, who were apparently expecting to turn a narrow defeat into domestic political capital for the next general election.

It was obvious from the beginning that the “leave” camp accommodated very different, often contradicting views on the post-EU future. Some of them wanted something similar to a membership of the EEA, with only moderate changes from the status quo.² Since this hardly counts as “getting our sovereignty back”, others were pleading for a significantly more distant relationship including immigration restrictions and refocusing on trade with non-EU countries.

Had there been sufficient clarity on the way of proceeding after the referendum, the diversity of positions and interests would not have been a major problem. For instance, the supporters of the “No” camp in the 2005 French referendum against the European Constitution were an inconsistent bunch, but they could agree on a concrete and clear objective—rejecting the European Constitution. However, in case of the Brexit, only the “remain” option came with clear implications (the status quo), while “leave” was unclear on a number of points:

1. The formal procedure: Art. 50 TEU or something else?
2. The timeframe: weeks, months, years before starting to negotiate the exit?
3. The outcome aimed at: access to the internal market, maintaining freedom of movement, keeping a financial contribution?
4. The internal consequences for the UK: should there be a special status given to Scotland, to the Irish border?

The unpreparedness for the “leave” victory now comes back with a vengeance, threatening to sweep away both camps, leaving the UK in a political limbo for months, if not years, to come. There is a first important (if somewhat trivial) lesson about direct democracy to be learned from this episode:

Any question to be decided by referendum must consist of two well-defined options, ensuring that the democratic decision can actually be applied. Ideally, this would be the choice between adopting or not adopting a fully worked out law proposal.³

As we now know, a large majority of voters did not expect “leave” to win, and would possibly have reconsidered their choice in the wake of the events of the last days. This creates a curious situation where the knowledge that there is a certain majority can eliminate this very majority. One should not underestimate this effect, in particular when ballots are cast as an expression of protest.⁴ Brexit as a protest seems much less appetising now that it is actually within reach.

More generally, the difficulty of the volatility of opinion is to be posed, in particular when weighty long-term issues are decided by close calls. The second lesson to be learned from the referendum is thus:

A referendum should only answer questions for which a long-term consensus is expected in the electorate—even after the result is known.⁵

Worse than Brexit? No Brexit.

In the middle of all this looming chaos, what once seemed a procedural detail is now in the spotlight: the referendum is, strictly speaking, advisory; it is not legally binding. Many voices are already calling for Parliament to disregard the outcome of the referendum or for a second referendum.

The freedom not to act on the results of the referendum (at least not immediately) is also claimed as a right by David Cameron and Boris Johnson. It is wholly unclear which successor to Cameron would risk initiating the infamous Art. 50 TEU procedure, in particular facing a pro-EU Parliament which probably will have the last word anyway. With every day the UK takes no action to leave, it seems more likely to stay after all.

What would happen if the UK decided not to leave the EU at all or pushed the decision back indefinitely? The question is starting to be asked aloud in the European press; it is certainly the nightmare of other EU states and EU representatives.

This is because the urge to begin with the Brexit negotiations as fast as possible goes far beyond trying to “punish” the UK and giving it a swift, bad deal. There is a more imminent and serious threat to the stability of the EU than the UK managing to thrive outside of the EU: the UK staying in the EU.

The Eurosceptics on the Continent celebrated the victory of “leave” as if it was their own. They were probably right, but for the wrong reasons. They certainly did not expect how fast the British appetite for leaving would wane, both among the Brexit elites and their electorate. However, this democratic imbroglio is likely to sow the seeds of further euroscepticism to come.

The EU has solidly acquired a reputation⁶ of “ignoring democratic decisions” and “forcing to rerun referendums until the correct result wins”. This reputation is at stake now; it is why the EU has to press the UK to act upon the outcome of the referendum as swiftly as possibly. Ironically, it does not have to power to do this, just as it never actually had the power to repeat referendums until the outcome is satisfying.

In the case of a failure to leave, not only will Eurosceptics around Europe be decisively strengthened (“The EU won’t even let a country leave when it chooses to.”) but also will Europhiles be heavily disillusioned (“The EU once again surrendered to the UK’s dirty tricks.”). Additionally, UK politics will enter a severe crisis, with distrust in the “Whitehall traitors” considerably strengthened. It was certainly a foolish decision to call for a referendum on EU membership, particularly without a serious plan to leave. Although the referendum was indeed non-binding, it would be even more foolish to disregard its outcome, however ill-informed it might be.

Leaving is a bad choice—not leaving is now worse. If the UK reluctantly remains in the EU in spite of the referendum, it might deal the fatal blow to the EU that an actual Brexit would not have been.

1. The extent of the disbelief was itself surprising to me, since the polls were, when properly taking into account their uncertainty, hinting at a tight race. ↩
2. In particular, maintaining the internal market, including the bulk of freedom of movement. ↩
3. In Austria, binding referendums (“Volksabstimmung”) are only meant to choose between the status quo and an already worked out proposed modification to the constitution. In France, the situation is quite similar. ↩
4. The very concept of protest only makes sense when combined with the belief of being in a minority. ↩
5. One could for instance require a quorum of more than 50% for significant structural changes (such as when altering the constitution or for international treaties), which is a usual requirement when Parliament is enacting such modifications. ↩
6. In particular because of the Danish (1992/1993), Irish (2001/2002, 2008/2009) and French/Dutch (2005) referendums. In my opinion, this is a misunderstanding on at least two accounts. First, there were always significant changes made to treaties rejected by referendum (whether they were positive or not is another question) which were later approved by a comfortable margin; second, the organisation of referendums is a purely domestic issue, meaning that the pressure to repeat a referendum comes from domestic politicians and domestic politicsn *not from “the EU”. ↩