HAJO DUKEN. The Brexit crisis – devil’s work and people’s contribution – the people’s vote: democracy or arson?

Most people, both in Britain and the rest of the world, would by now agree that Brexit has proven to be the most important single issue Britain has faced since WWII with significant (if not life-changing) consequences for many generations to come. Many would also agree that it has been the management of Brexit (rather than the decision for Brexit itself) that has manoeuvred Britain into its biggest crisis since WWII. Surprisingly, however, the root causes of this mess are rarely discussed.

Most law students would have come across a real or hypothetical case in which the spoilt and bored offspring of a very wealthy family decides to set the family farm/factory on fire. Motives may vary and include the mere thrill of watching something large burning, being fed up with the continuing hard work required to run the farm/factory and/or the expectation of a lottery win in the form of a massive insurance payout.

In May 2015 Phillip Hammond introduced the bill for the European Union Referendum Act 2015. In the second reading in July 2015 the bill was supported by 544 MPs in the House of Commons with only the 53 MPs of the SNP opposing it. The Act passed in its third reading in September 2015 by 316 to 53 votes with a turnout of only 58.5%. The House of Lords approved the Act in December 2015.

It is probably fair to say that the MPs (and Lords) who voted in favour of the Act have set the whole country on fire. What were they thinking? Isn’t it wonderfully democratic to place the most significant decision since WWII in the hands of the people? No, it is the exact opposite.

Almost all liberal democracies in the world are designed as representative democracies with no or very limited space for plebiscites. The voting population (which is not identical to the ‘people’) elect representatives (politicians) they trust into parliament/government who then make decisions on behalf of the people. The representatives act as a filter between popular views (expressed in the media, opinion polls or otherwise) and any decisions to be made.

Most people would probably agree that the core duty of elected representatives is to act in the best interest of the country (the ‘national interest’). They have the mandate to define the national interest and, before making a decision or casting a vote, should carefully and diligently examine the facts and weigh up the consequences of the proposed decision and any alternatives. As a strong believer in democracy I would also hope that, in the event of a conflict, those representatives would put the national interest before their own personal interest including their personal interest of getting re-elected, before the interest of their party and any party manifesto, and (very importantly) even before the interests and views of the majority in their electorates.

The national interest is a complex beast. It is easy to say that it means that the country is safe and prospers to the benefit of its people in the short, mid and long term. However, the national interest is not identical to the interests of all (or a majority of all) citizens who are entitled to vote at any particular point in time. The national interest must include the interests of those citizens who are below voting age, and in many cases even the interests of generations not yet born. Decisions relating to climate change clearly demonstrate this. It goes even further: the more far-reaching a decision is, the more weight would need to be given to the interests of future generations. If it is expected that a decision will determine the fate of a country for the next 10,20 or 50 years, then the will, interests and views of the present voting population may even be outweighed by the interests of generations not yet of voting age or not yet born.

The core problem with a ‘people’s vote’ is that voters have the absolute right and freedom to completely discard the national interest and replace it with any other motive they think fit, and if we believe surveys and public statements, voters in both camps did. Some voted ‘remain’ because they work for universities or banks and fear for their jobs, others because they have children who want to live, study and work freely in other EU countries, because deep down they trust the EU bureaucracy more than their own elected politicians, or because they simply want their cosy lives to continue. Voters voted ‘leave’ because they are frustrated with politicians, their job situation, the younger generations, their sex life, the health system, or the performance of their favourite football club. I have not come across many statements from ordinary voters explaining how they carefully considered the national interest or the risks and opportunities for future generations before casting their vote in the referendum (or making the decision to not vote at all).

A people’s vote might be appropriate to approve a fully finalised and debated proposal (for an amendment to the constitution or an international treaty), or to determine a very specific and not overly complex issue (like same sex marriage, the legality of abortion or an application to host upcoming Olympic Games). However, the very inconvenient truth is that a people’s vote on a complex issue that has not yet been thought through, has no precedent, and impacts on future generations more than on the present voting population is both, gambling with or even discarding the national interest, and deeply undemocratic. And it appears that David Cameron knew exactly what he was doing but simply hoped that his party would not win the next election.

If the 544 arsonists had really been interested in a more democratic, less divisive referendum, they could have easily required a second popular vote on the terms of Brexit,  made voting compulsory (ensuring that the voice of the young and most affected generation is fully heard), required a majority for Leave not only in the whole of the UK but also in each and every constituent country (England, Scotland, Northern Ireland and Wales) or at least grant Scottish and Northern Irish voters a second question: ‘In the event of the UK leaving the EU, do you want Scotland to become independent from the UK / Northern Ireland to unify with the Republic of Ireland?’.  None of this happened. The referendum and the question put to voters were deliberately designed to make the process as easy as possible, (not for the people but  for the populists), to satisfy the older support base of both Labour and the Tories at the expense of the younger generation; and to ensure that the English would determine the outcome of the referendum and the sensitivities and interests of the Scots and Northern Irish would once more be irrelevant.

Hajo Duken is a lawyer admitted in Germany and Australia. He has practised in EU law and designed and delivered seminars and lectures on EU, constitutional and international law throughout his career. In Australia he worked in private practice and held senior legal in-house positions in various industries.


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9 Responses to HAJO DUKEN. The Brexit crisis – devil’s work and people’s contribution – the people’s vote: democracy or arson?

  1. This post and all the comments are elitist and arrogant, not to mention hyperbolic. I’m sure the Poms have had bigger problems than this to deal with since 1945. In Craig Murray’s reading of the vote, England and Wales wanted out. Scotland and Ireland wanted to remain. That’s the answer. Break up the UK. Professor Bill Mitchell describes the European Union as Neoliberal Central.

  2. John Vincent says:

    A very well-argued and insightful article. The UK Government and other elected representatives have made a number of key policy mistakes in managing the Brexit process. At the outset, and as pointed out by Hajo, the UK Parliament (primarily the Government of the day (past and present), but also the opposition party) failed to exercise its core responsibility to decide what was in the best interest of the country and “diligently examine the facts and weigh up the consequences of the proposed decision and any alternatives”, before putting the Brexit proposal to voters. Other important policy missteps by the UK and the Parliament have compounded that which is highlighted in the article.

    The Brexit decision will determine the fate of a country for the next 40-50 years (and probably beyond). At the same time, the UK’s engagement with the EU in the past 40 years will have developed very deep and broad linkages across all aspects of the UK’s relationship with Europe. No one UK political party let alone a UK Minister would be across this depth and complexity and, consequently, could hope to manage effectively the UK/EU Brexit process. Realistically, to manage such complexity in the detailed and complex negotiations required for the break-up could only have been achieved through a bipartisan parliamentary approach to the development of the UK’s policy and strategy on how to manage Brexit. At the outset, the UK Conservatives and Labour should have worked to this end to effectively protect the UK’s national interests. However, the UK Government and opposition Labour Party, being so entrapped in the adversarial nature of the Westminster parliamentary system, could not see any other way to manage the Brexit process other than in a partisan manner. As a result, rather than securing the best outcome for the UK and its national interests through effective political cooperation, we have each side in parliament blaming the other for the Brexit mess.

    After 40+ years of EU membership, the UK Government and bureaucracy had no or minimal institutional knowledge or capacity to engage in the wide ranging negotiations required to unstitch all areas of the UK’s engagement with the EU. That capacity and the human resources had been ceded to the EU Commission in Brussels over the past 40+ years. This placed the UK at a major disadvantage vis-a-vis the EU in the Brexit negotiations. There is no clearer evidence of this lack of capacity and knowledge, than the UK decision, early in the Brexit negotiations with the EU, to agree to the financial settlement for the UK’s withdrawal. Experienced international law negotiators know the well-established principle in international law negotiations, and specifically in international trade and economic negotiations, that, “nothing is agreed until everything is agree”. Through this further misstep, the UK conceded a major negotiating element to the EU early in the Brexit process and thereby weakened its negotiating position and flexibility. Through these missteps and others by UK political representatives, it looks very likely that the UK will need to brace itself for a hard landing when it crashes out of the EU without a comprehensive Brexit agreement.

  3. Hal Duell says:

    I watched an explanation of Brexit and the Irish Backstop on a news program last night. From what I could gather, Northern Ireland would effectively remain within the EU for a couple of years to preserve the open border between Ireland and Northern Ireland.
    England, Wales and Scotland would leave the EU (and I just bet the Scots will have something to say about that going forward).
    I don’t know if this option is still available, but if it is, what a chance for Ireland. Wait a couple of years, hold an Ireland-wide referendum and maybe, just maybe, Ireland could finally be united.

  4. Richard Ure says:

    It is interesting to reflect on the outcomes of the two referenda in Australia on conscription during WWI. Wind the clock forward to WWII and then conscription for overseas service in Vietnam when the risks to Australia were far less but the decision was not allowed any near the public.

    The British government imposed conscription on its citizens and shot those who deserted.

  5. Richard Ure says:

    “As a strong believer in democracy I would also hope that, in the event of a conflict, those representatives would put the national interest before their own personal interest including their personal interest of getting re-elected,” I am sorry to be the bearer of bad news, but accounting to the Ken Burns PBS documentary series on Vietnam, all the presidents from Kennedy privately admitted the war could not be won, but that they had to keep escalating it in order to get re-elected.

    • Hajo Duken says:

      Many thanks for your comment.
      We all agree that the reality is often bleak.
      However, I believe that, if a (democratic) society really wants to hold its politicians to account, it it necessary to constantly debate the applicable standards and then publicly measure the politicians against them.
      Kind regards
      Hajo Duken

  6. Joan Seymour says:

    Great article. This writer makes clear the issues around the Brexit referendum, and in doing so raises several important questions about our own system in Australia. What it is to be a scholar – to be able to think rationally and communicate reasonably. There should be more of it…

  7. ANDREW FARRAN says:

    Spot on. The referendum was not only inappropriate but mishandled. Parliament abdicated its basic responsibility and the party leaders have since not recognised they have a higher duty than to promote narrowly their party interests.
    While the interests of the Irish became front and centre in the latter stages of the process that issue had been overlooked at the outset and handled subsequently very impatiently and ignorantly. Leading Tories should have known better. Once other UK regional issues were opened up palpable disregard became apparent. Dogmatism displaced wisdom and turned into self-righteousness, with blame for others including the EU, but not themselves. The UK governing parties forgot that it was, and always had been, their call, not the EU’s. Now we/they have a situation where the government has lost control of the Parliament, cannot run the country, and still claims it has the confidence of Parliament. Another referendum for all the reasons set out in the item above should be a non-starter. In classic Westminster terms the only credible next step is to hold a General Election a.s.a.p. and let the Parliamentarians (or most of them) stew slowly in their own juices. The EU would have every justification for refusing an extension under Article 50. At the time of writing the Parliament has two remaining options apart from a General Election: approve the Withdrawal Agreement as finally submitted or unilaterally withdraw its Article 50 application and remain in the EU. Anything less will ensure further humiliation and chaos up and down the country.

  8. Niall McLaren says:

    Quite the most pellucid analysis I’ve seen. If Cameron had had any nous, and guts, and concern, he would have told his squabbling bunch of idiot schoolboys that the polls showed 80% approval of EU among younger generations, so he was going to defer the referendum for 10yrs until all the old blowhards and Blimps had died off. But he hadn’t, so he didn’t, and now we see Britannia about to turn turtle and sink beneath the waves. Good riddance.

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