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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