Kukovec, Damjan

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The People Have Voted, Now Let thePeople SpeakDamjan Kukovec 2019-10-08T16:00:32The Brexit stalemate is unlikely to wither. In a smart spin, distracting from theunlawfulness of the Parliament shutdown, the blame for not delivering Brexit is nowput on the Parliament. The Parliament and “the establishment” are pitted againstthe will of the people. Since the 2016 referendum, however, provided for no clearprocedural or substantive mandate, no form of Brexit, including remain, can claim itslegitimacy based on the “will of the people” unless there is a second referendum.Geoffrey Cox, who gave a blessing to the prorogation, has gone as far as to say thatthis parliament is dead and has no moral right to sit on these green benches. It isalso said that there is a collision between two forms of legitimacy by representativedemocracy of the Parliament and by direct democracy of the people. Moreover,Jacob Ress Mogg asserts the Parliament, by not allowing a no-Deal Brexit, “isholding people in contempt” and MPs have even been called “collaborators”.During Theresa May’s reign, the argument was that Brexit was not delivered dueto either “corrupt politicians not following the will of the people”, which included theGovernment, or due to the Prime Minister’s incompetence. Surely, mistakes havebeen made. However, inability to deliver Brexit due to an incapable prime ministerdoes not persuade. The EU has an upper hand in negotiations almost by definition,given its more spread out negative impact of any form of Brexit than the UK. Inaddition, it made a wise choice of separating the withdrawal agreement from thenegotiations of the long-term relationship, further tipping the negotiating balancein favour of the EU. Furthermore, Theresa May has stepped down and it seemshighly unlikely that Boris Johnson will be able to deliver Brexit without resorting toextraordinary measures including breaking up the Conservative party and testing thefundamentals of UK democracy.The current stalemate and inability to deliver Brexit is thus not due to theParliament’s unwillingness to deliver the will of the people, to corruption or the PrimeMinisters’ incompetence. Inability to deliver Brexit is due to the fact that the 2016referendum result gave no clear mandate as to the nation’s course of action.There was a lack of a procedural mandate in the 2016 referendum. There is sharpinternal split among Brexiteers on the course of procedure of leaving. Those whotoday profess Brexit “do or die”, voted against Theresa May’s proposal for leaving,because she was unable to deliver their preferred version of Brexit. As a result,May’s deal was dismissed as being “against the will of the people”. Furthermore,the withdrawal agreement or any of its difficulties was not even seriously addressedduring the referendum campaign. Last but not least, polls show that the public is splitbetween a deal Brexit, no-deal Brexit and remain – 17,4 million people did not voteto leave without a deal.- 1 -The 2016 referendum also did not give a clear mandate on the substance of thefuture relationship with the Union. We keep hearing “leave means leave”. However,countries around the world have a range of agreements with the EU, there is no realleaving the European Union for any country in Europe, let alone for a country that isso economically, historically and geographically tied to the EU as the UK. The keyquestion is not leave or not, but how to leave, if so and the people were never askedthis question.Furthermore, the UK as a whole remains a privileged society in the EU. One ofthe reasons for the difficulties the Brexit process poses for the United Kingdomis in fact the rising awareness of the privileges the UK is giving up by exiting theUnion. But what does “taking back control” mean in today’s interdependent world?Sovereign jurisdictional powers, which the public was aspiring to, and actual powerrelationships in society are radically different notions that should not be confused.First, today, full sovereignty is an illusion in today’s interdependent, polycentric andunequal world, no matter how powerful a country is. Each legal jurisdiction, globalpowers included, is set under constraints of other legal jurisdictions. Full sovereigntyof a middle-sized power, such as the United Kingdom, is even more difficult tofathom. Moreover, the rules and standards that are produced in Brussels inevitablyhave an immense impact across the world. Countries and corporations located in theimmediate neighbourhood of the European Union are particularly unable to ignore itsregulation. Leaving the European Union cannot promise “taking back control”, but ininterstitial regulatory solutions for which no case has been made. The Irish backstopis just a visible symptom of a much larger problem of how entangled the UK is in theEU. It is just one example of the fact that “leave means leave” means nothing.Even if there were a public consensus that leave means leaving the customs union,the internal market and the jurisdiction of the ECJ, the devil is always in the details.Different versions of Brexit will have different costs and those costs will be borne bydifferent sections of the general public depending on the type of Brexit and the typeof arrangement with the EU. The Parliament would thus by definition be unable toreach a conclusion on the type of Brexit and objections from all sides of the publicwill be endless.How many of the 17,4 million voters agreed to a different regulatory regime ofNorthern Ireland to the rest of the UK, as the possible price for Brexit? How manyof these voters agreed to the real possibility of breaking up the UK as a result ofBrexit, with Scotland leaving the UK and becoming a Member of the EU? How manyof those voters were aware of the immensely privileged position of the UK in theEU and were willing to pay the price of giving it up? Certainly not 17,4 million. Howmany of these voters had any coherent idea of the future UK relationship to the EU?Today, more than three years after the referendum, no single person still has a clearidea of the actual future relationship of the UK to the EU. One therefore cannot arguethat people knew what they were voting for in 2016.“Delivering the will of the people” is a vacuous slogan in today’s Brexit context.Theresa May’s endless iteration that “Brexit means Brexit”, turned out to be a merestrategy to sweep the real issues under the carpet in order to reach some consensusand enable her political survival. Boris Johnson seems to be only able to deliver his- 2 -own idea of a procedural Brexit by repeatedly breaking the law “in the name of thepeople”, a scenario of populists and dictators, putting a permanent stain on the partyof a grand tradition of leaders such as Winston Churchill or Margaret Thatcher aswell on the constitutional legal tradition of the UK. Did 17,4 million people vote forsuch a scenario?While the people voted, the people have not spoken. When there is no clearmandate from the people, the will of the people is up for grabs by any politician whowill manipulate it for their own purposes. Unless there is a second referendum, anyform of Brexit, including remain, cannot claim its legitimacy based on the “will of thepeople”.The blame for the Brexit stalemate is squarely on the government who organized the2016 referendum. Putting this complex question to a referendum and specifically,articulating the choice between a simple remain and leave was a result ofoverconfidence that remain would win, without serious consideration of the actualcourse of action in case of a leave win. This threw the door wide open to vastoversimplifications of the leave argument and to promises of an easy, undeliverableleave. David Cameron’s recent mea culpa is thus spot on.A second referendum cannot bring about more stalemate or division than therealready is. Constant, though dissonant, calls for general elections are also a resultof an unclear mandate on Brexit. Successive general elections are substitutes forthe real question that should have been asked and the answer proposed to thepeople in 2016: How, if at all, should the UK leave? However, until the final, long-term agreement between the EU and the UK is negotiated, this cannot be clearlyanswered and people cannot know what they are voting for. But when the timefor a decision and possibly a public vote comes, the sitting and aspiring PrimeMinister, should make a case for or against a particular form of Brexit on its merits.Politicians unable to argue for a direction on an issue that will seal the nation’s fatefor generations are as unfit to govern as those who manipulate the will of the people.The Parliament is not holding people in contempt, the UK is held in contempt bythe process of Brexit that was flawed from its inception thus allowing politicians toflourish on its vagueness and lack of mandate. The genie is out of the bottle andBrexit will keep dividing the UK regardless of its outcome. However, a clear mandateby the people could bring its endless legitimacy crisis to a conclusion.- 3 -

The People Have Voted, Now Let the People Speak

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The People Have Voted, Now Let the People Speak

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