In the immediate aftermath of the EU referendum, there was a vocal anti-democratic backlash, with stunned Remainers openly discussing how to overturn the referendum and thwart the majority’s will. We insisted then on TCM that popular sovereignty must be respected and, to prevent any elite backsliding, recommended invoking Article 50 promptly. A campaign has also emerged demanding ‘Invoke Article 50 Now!’.
But as the dust settles, a different picture is emerging. In current circumstances calling for the immediate triggering of Article 50 is a mistake. It ignores the origins and purposes of this legal instrument and it risks undermining representative democracy in favour of a dangerous combination of populism and technocracy.
It is true that some academic Remainers are still scheming to frustrate the result, and lawyers are taking the government to court in an effort to create new political obstacles to triggering Article 50. The Scottish National Party is also still threatening to ‘veto’ Brexit. However, most British politicians appear to realise that ignoring the referendum is not an option. We now have a prime minister who pledges that ‘Brexit means Brexit’, and a Eurosceptic team of ministers overseeing the Brexit process. Invoking Article 50 is being delayed not to resist Brexit, but to buy time to formulate a negotiating strategy, including one that appeases the Scots. The looming question is not whether Brexit means Brexit, but what Brexit actually means: what sort of settlement will the UK pursue and get? Invoking Article 50 quickly can only reduce the influence of the British electorate over the answer to that question.
Article 50 of the EU’s treaties was not written with the interests of an exiting member state in mind. Quite the contrary. The authors of the Lisbon Treaty, including the die-hard British federalist, Andrew Duff (ex-Liberal Democrat MEP), were very clear that the article would make exit as difficult and as unpleasant as possible for any member state who – god forbid – should exercise its democratic right to leave the EU. It is no wonder that those calling for the triggering of article 50 as soon as possible often find themselves in bed with the likes of Martin Schultz, President of the European Parliament, and Jean-Claude Juncker, President of the European Commission.
The effect of triggering article 50 is very clear. Negotiations are taken away from the open space of national and European political debate, which is where Brexit and the future of the UK/EU relationship currently sits, and relocated behind the firmly closed doors of the European Council and the European Commission. On the EU side, Donald Tusk (President of the European Council) and Frans Timmermans (Vice-President of the European Commission) are the two likely figures who will head up the negotiations for the EU. On the UK side, a team of ‘Brexperts’ will be put together under the steer of someone like David Davis. The result will be much like David Cameron’s negotiations with the European Council and the European Commission at the end of last year: entirely secret, with the renegotiation package finally pulled out of the hat and presented as a fait accompli to a rightly sceptical British public.
Without any doubt, article 50 transforms negotiations between elected representatives, that are ad hoc and outside of the EU’s legal framework, into a series of private discussions between nominated experts on the specific terms of the UK’s relationship with the EU as a future non-member state. This is not a coincidence, this was the intention of the article and this is how the EU has always functioned.
The UK government would be wrong to use the uncertainty of being outside of the article 50 framework to ride back on the result of the referendum and any sign of it doing so should be very firmly resisted.
But it is equally wrong to seek to push the UK government into the legal and technocratic straightjacket of article 50. Defending representative democracy means holding our current representatives to account and demanding that we as citizens can follow as closely as possible the discussions being currently held between May, Merkel, Hollande and others. This should not only be the right of UK citizens but of all the citizens of the other 27 EU member states. These are discussions about the UK’s new relationship with the EU, conducted by elected politicians accountable to their domestic publics. Until there is a clear sense of what both sides want as a post-Brexit deal for the EU and the rest of the EU, negotiations should remain like this: as open and directly political as possible.
Calling to trigger article 50 now is to squeeze out representative democracy. What is left is a populist celebration of the ‘people’ that calls for the beginning of a technocratic negotiation process that transforms politics into legal wrangling in the long standing tradition of the EU.