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Off with Henry VIII’s Head! The Need to Reclaim Brexit from the Executive

3 Apr

Nine months after the UK voted to leave the EU, the government has now invoked Article 50 of the Lisbon Treaty, signalling Britain’s intention to depart and beginning two years of complex negotiations. TCM has supported Brexit as a necessary step for reviving Britain’s degraded representative democracy, and thereby popular control over politics, against the twin perils of technocracy and populism. We have never been under the illusion that Brexit would instantly achieve this goal, still less create some leftist paradise. Whether representative democracy is revived depends on how political forces act now. The Brexit process involves two major challenges to popular control: the Article 50 negotiation process itself, and the “Great Repeal Bill”, both of which risk centralising power in the hands of a narrow, technocratic elite.

First, the Article 50 process re-submits the UK to anti-democratic EU processes. Against those Brexiters who argued, in a populist manner, for the immediate triggering of Article 50 after the referendum, TCM warned that this was a technocratic trap. Article 50 was deliberately designed to make it difficult for member-states to leave. The cacophony of voices now warning that a deal cannot be done in two years merely illustrates the point: by imposing an unrealistically tight deadline, Article 50 clearly seeks to deter anyone from even daring to leave. More importantly, the negotiating process will convert the democratic moment of the EU referendum into a technocratic process. In keeping with an institution that has transformed public policymaking into nineteenth-century-style secret diplomacy, the negotiations must be conducted in private, with representatives of the Council and the Commission. We wanted as much democratic contestation over the terms of Brexit before UK officials entered this technocratic process to decide our future.

Remainers have squandered this collective opportunity to shape the process by indulging in pointless fantasies of parliamentary revolt against the electorate. The last nine months have not seen substantive debates over what form Brexit should take, but rather an anti-climactic struggle over who – the executive or parliament – has the right to pull the Article 50 lever. This legal battle was only waged in the hope that parliament would refuse to pull it; but parliament could not deliver. Parliament’s “victory” was empty because it was a gift of the courts. It was the government that retained the democratic mandate of the referendum, and parliament had nothing of substance to add. The government was forced to produce a White Paper, but this provided scant detail. The main commitments made were on leaving the single market and the jurisdiction of the European Court of Justice, but little else of substance has been discussed, and the bill was not seriously opposed in the Commons despite widespread disquiet about these terms. MPs finally seemed to realise that they could not oppose Brexit, but they completely failed to offer any vision for it.

Parliament therefore passed a pro-forma act, authorising the triggering of Article 50 but not imposing any significant conditions on the negotiations. The government merely pledged to report regularly to parliament – necessary, but hardly sufficient for popular control over the process – and to permit a final vote on the outcome – which, as we have argued, does not create real democratic choice. Most bizarrely, it was only after the bill was passed that the sclerotic Labour Party issued a list of “conditions” that the final deal must meet to gain their support in 2019. Remainers taunt Theresa May for having no plan for Brexit, but in reality it was they who had nothing substantive to offer, and therefore – feebly and irresponsibly – released the executive into Article 50 talks with the freedom to negotiate whatever it likes.

Parliament’s inability or unwillingness to take any real ownership of the process bodes very badly for the so-called “Great Repeal Bill”. The government plans to leave the EU by first domesticating the entire body of EU laws (the acquis communitaire), which parliament can then amend or repeal. This would be an appropriate restoration of parliamentary sovereignty. However, the executive is seeking a so-called “Henry VIII clause”, which would allow ministers to issue “secondary legislation” (edicts) that would amend this primary legislation. This is justified partly in technical terms: there is a lot of law to enact (over 170,000 pages), and much of it needs tweaking for the UK context.

The threat to representative democracy is obvious enough from the sinister “Henry VIII” label. Allowing ministers to dictate primary legislation is incredibly dangerous and amounts to a massive “Whitehall power grab”. Parliamentary sovereignty would be restored with one hand, then stolen away with the other.

This is clearly unacceptable, but it also underscores a key reason for leaving the EU. It is precisely because law-making has been transferred from parliament to internationally-networked executive agencies that this problem exists. For decades, laws and regulations have been initiated by the unaccountable European Commission, then adapted and finalized via secret negotiations between national ministers and European Parliament representatives in so-called “trilogues”, far removed from either public scrutiny or political debate (see here, pp.37-41, for more details). The vast acquis that now governs our lives – and must now be either retained or discarded – has been made primarily through the secretive exercise of executive power, not through our elected representatives. The proposed “Henry VIII” clause seeks to perpetuate this misallocation of authority by allowing UK ministers to decide which laws will stand or fall, or how they should be adapted to the UK. Nonsensically, it posits excessive executive power as the solution to a problem caused, in large part, by excessive executive power facilitated by EU structures.

The failure of parliament to influence the Brexit process so far, and the risk that it will be further sidelined, speaks to the degradation of representative democracy that was both expressed in, and accelerated by, the EU’s formation. As TCM’s Chris Bickerton has argued, as part of a general crisis of political representation, European governments retreated from their citizens into secret negotiations with one another behind closed doors, creating structures that further undermined democracy. European states thereby became “member-states”. As Britain leaves the EU, it casts off the legal form of member statehood, but the rotten content still remains: a political class disconnected from the masses, a parliament unused to exercising popular sovereignty, and an executive and bureaucracy accustomed to unaccountable rule.

The rot is most obvious in the party that ostensibly “leads” the official opposition. Jeremy Corbyn, betraying his own Eurosceptic principles, lost the opportunity to lead a progressive Brexit campaign. Labour, fatally alienated from the working classes it claims to represent, could not lead Remain to victory. Corbyn’s residual democratic principles, plus straightforward electoral calculus, meant Labour lacked the spine to oppose the referendum result; yet it now has absolutely nothing meaningful to offer on Brexit. Its total disarray, its inability to lead – borne of its decades-long alienation from ordinary citizens – is what allows a political pygmy like Theresa May to dominate the political scene, and the polls. She at least seems to grasp that there is a solid block of opinion requiring representation and leadership, and is seeking – however objectionably – to provide it.

The next few months will be decisive in determining whether there is anyone in the UK willing to recognize and then tackle this rot directly. Parliament needs to recover its function in representing social constituencies, take charge of the Great Repeal Bill, and exercise meaningful oversight over the executive’s conduct of the Article 50 talks. If the Remainer opposition merely persists in sneering from the sidelines, hoping to thwart Brexit two years hence, it will squander any chance of influence and, more importantly, the enormous opportunity for democratic renewal that Brexit has created.

Lee Jones

Give them British citizenship!

4 Mar

The British government is not treating EU citizens resident in the UK as a bargaining chip in the negotiations with the EU. On the contrary, it is the EU that is treating those citizens, and British citizens resident in Europe, in this way. Theresa May has already sought a deal allowing EU citizens resident in the UK to remain here following Brexit, if EU governments will do the same for British citizens in their countries. EU leaders have refused to make any agreement until Article 50 has been invoked and its secretive negotiation process has begun.

The UK government should respond to this with a very public message that it is committed to the rights of those who live here. It should unilaterally declare that EU citizens have a right to remain in the UK after Brexit, and urge European governments to reciprocate. Indeed the British government should go further. It should make a point of inviting those EU citizens to become British citizens, and reduce the significant barriers to them doing so that exist at the moment.

The Prime Minister is not wrong to insist that she must put the interests of British citizens first. And EU governments may refuse to reciprocate. In Greece those governments have demonstrated that their attitude to European citizens can be almost as vicious as their treatment of African and Asian migrants. But the significant costs that might be caused by EU intransigence on the rights of British citizens abroad will be far outweighed by the long-term benefits to all British citizens.  We would be citizens of a state that has the confidence both to insist on its accountability to its own people (its democratic political sovereignty) and its openness to others (its internationalism). Such a state would earn worldwide respect from many millions of ambitious, talented and public-spirited individuals who are crying out for a break with the stale politics of the past. That would be an asset beyond price.

Opinion poll evidence suggests that there is overwhelming popular support in Britain for allowing EU citizens to remain in the UK after Brexit. A huge opportunity exists here for Theresa May really to lead the world. There is, of course, no evidence that she has either the political imagination or courage to take the opportunity – her long tenure as Home Secretary suggests the opposite. Only those committed to an internationalist politics of sovereignty are likely to be willing.

Peter Ramsay

 

 

 

 

 

Why Have People “Had Enough of Experts”?

2 Jan

One of the defining moments of the EU referendum campaign was Michael Gove’s remark – directed at all the professional economists predicting a Brexit vote would produce economic disaster – that “people in this country have had enough of experts”. This is now seen to have initiated a terrible era of “post-truth” politics. For the experts themselves – many of them, my fellow academics – this is deeply disturbing, signalling the inexorable rise of irrational, fact-free political debate. But what people have had enough of is not experts or expertise, per se; rather, it is the automatic, assumed authority that experts wield over non-experts.

The rise of “experts” to positions of authority in public life is intimately connected with the decline in popular political participation over the last few decades. Society has always needed technical experts to provide advice and implement policies, but increasingly “experts” have taken a central place in decision-making itself. A burgeoning array of issues have been removed from the domain of democratic contestation and handed over to unelected technical experts to decide. In many jurisdictions, legal changes have locked in this turn to “evidence-based policymaking”. The obvious example is the rise of independent central banks. Populated by professional economists, these now control monetary policy – once a matter of intense political contestation between forces favouring inflation control (typically, capital) and those favouring full employment at the expense of some inflation (typically, organised labour). More generally, the rise of quasi-autonomous non-governmental organisations (“quangos”), judicialised bodies, and various commissions and inquiries since the 1980s marks the depoliticisation of many areas of public policy, and the growing authority of technocrats – people whose power derives not from their popular support but their technical expertise. These technocrats have also started coordinating their work across borders, forming transnational governance networks even more remote from popular democratic control. The European Union is only the most obvious example.

There has always been a strong class basis to this shift. Relocating decision-making from representative bodies to technocratic agencies reduces popular control over policymaking while endowing skilled professionals with unprecedented authority. As David Runciman recently argued, increasing evidence of political division between highly- and poorly-educated citizens reflects this divide, with the authority-wielding professions increasingly confined to an ever-narrowing social elite. The shared social background and values of technocrats and those they often seek to regulate – and the increasingly obvious “revolving door” between them – also helps bias governance outcomes in favour of the already wealthy and powerful, rather than serving the public interest. In short, there is nothing neutral about the political rise of experts, despite its frequent presentation as such. Part of the backlash against the attack on “experts” is this class seeking to defend its own power and authority. It also reflects a Remainer fantasy that if only the public were more educated, Remain would have won – as if more mind-numbing courses on the institutional structures on the European Union could somehow magically erase all of society’s social, political and economic contradictions and conflicts.

However, this reaction is overblown: it is not the case that ordinary people have lost all faith in experts, nor have they irrationally embraced “post-truth” politics. What they are revolting against is the automatic, assumed authority of experts. Due to the long decline of political contestation, many experts have become far too accustomed to being listened to with extreme deference; they expect their expertise to translate automatically into authority. It is this assumed authority that rankles with the non-expert: the presumption that, simply because someone has a PhD in a given area, no one else is permitted to voice an opinion. The expert does not even have to explain themselves: the mere invocation of their qualifications should apparently suffice to quell all dissent.

Examples of this abound, but one recent case is the widely-reported Twitter spat between UKIP funder Aaron Banks and historian Mary Beard over whether the Roman Empire was “destroyed by immigration”. Beard slapped him down: “you all need to do a bit more reading… Facts guys! … you guys don’t know Roman history… this might be a subject on which to listen to experts!” Banks defended his view, and was quickly vilified for trying to “mansplain” Rome to the noted female classicist. But his most notable comment was: “Where’s all your counter arguments & facts then?” Notably, Beard supplied none – she just dismissed him as ignorant and asserted her expertise. As the Huffington Post aptly summarised, his crime was failure to “defer to a respected historian’s perspective”.

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But why should anyone defer to experts? There are many reasons to think they should not. Most obviously, experts are very often wrong – sometimes disastrously so. Winston Churchill’s “personal technocrat”, Dr Frederick Lindemann, advised the British government that the 1943 Bengal famine was due to overpopulation, counselling against sending relief. Six to seven million Bengalis starved to death. In the 1960s and 1970s, educational psychologist Sir Cyril Burt told the government that black children were genetically less intelligent than whites, holding back the shift to non-selective schooling. In the 1990s, government scientist Dr Robert Lacey warned that, by 1997, a third of the British population would have contracted Creutzfeldt-Jacob disease from eating beef contaminated with “mad cow disease”. The much-touted rise of “evidence-based policymaking” in the 1990s – reflecting the growing depoliticisation of public life – produced swathes of “quack policy”, justifying burgeoning state interference in private decision-making in the name of “public health” or “happiness”. Policies on passive smoking, alcohol pricing, sugar taxation and so on have all been adopted following scientist-backed campaigning – despite the fact that the evidence base is often extremely weak and the policies have often failed. As an IEA review comments,  “evidence-based policymaking” has often been less about scientific rigour than a “mechanism for academic elites to impose their own values on society as a whole, showing contempt for the wishes of the public.”

This clearly extends to research around the EU referendum, where expert authorities have projected their value judgements as truth. The International Monetary Fund, the Treasury, and virtually every professional economist, made bleak predictions about the immediate economic impact of a Brexit vote, which have already been proven badly mistaken. Likewise, a study by Imran Awan of Birmingham City University and Irene Zempi of Nottingham Trent University, released by the charity Hope Not Hate, was found to have vastly exaggerated the positive reaction to the shooting of Labour MP Jo Cox during the referendum campaign. TCM has exposed similar exaggerations or distortions around Brexit by the Electoral Reform Society and #PostRefRacism, both of which had academic input. Other “research” is just openly spiteful, like the UEA academic who discovered a correlation between Leave voting and obesity (not-very-sub-text: Leave voters are stupid and fat).

Unsurprisingly, then, experts are not immune from value judgements that can powerfully shape their pronouncements. Moreover, even when they strive for objectivity, their knowledge is only ever partial. Especially in the humanities and social sciences, everything but the most basic facts is contested, because there are always many ways to interpret data. All real “experts” know this; indeed, many academics (especially those influenced by post-structuralism) have been preaching for decades that there is no such thing as objective truth – only a set of competing “truth-claims”. But many nonetheless splutter with outrage when a non-expert dares to challenge their particular truth-claim.

This is arguably the nub of the issue: the growing political inequality between the “experts” and the masses. Some clearly believe that experts do not even need to justify or explain their perspective to the less-educated; the gap between their credentials should short-circuit the need for any discussion. But in a democracy, citizens are equal. Credentials do not entitle one to a greater say or, as some now openly fantasise about, more heavily weighted votes; and nor should they. Ironically, many “experts” involved in educating students would agree that a good citizen needs to think critically, to not accept received wisdom unquestioningly, and to exercise discriminating judgement. A citizen who fails to do this is evading their responsibility, simply casting their vote on the say-so of authorities, rather than on the basis of their own reason. An expert who denies a fellow citizen the possibility of discussion and debate, and thus proper understanding of issues, therefore corrodes democracy itself.

What non-experts are rightly reasserting, then, after a long period of tightening technocracy, is their equality as political subjects. Experts still have a political role to play – but as citizens informing and participating in debate, not as automatic authorities to whom mere mortals should automatically defer.

Lee Jones

Europe and the Rise of the Plebiscitarian State

8 Dec

The defeat of Italian Prime Minister Matteo Renzi’s constitutional reforms have been widely taken as yet another referendum defeat for the European Union (EU), threatening to destabilise the Italian banking system, and through it, the Eurozone itself. One wag on Twitter observed it was time to ‘have a fucking referendum on whether to ban over-confident male prime ministers from holding referendums.’ Here we have a succinct and common view from the pro-EU left of referendums in today’s Europe. Referenda are seen as brash, bold, dicey endeavours, to be expected from immature, testosterone-fuelled male politicians that risk stoking populist insurrection and ballot box revolts, in pointed contrast to the cautious matriarchal management of say, Angela Merkel. Referenda are seen as the tool of irresponsible populists and demagogues: US president-elect Donald Trump courted ex-UKIP leader Nigel Farage and memorably promised a ‘Brexit-plus-plus-plus’ for his election victory, seeking to turn the US presidential elections into a referendum on the ‘Washington elite’.

Yet if referenda are the battering rams of the populist-barbarians-at-the-gates, they have become remarkably common features of the European political order over the last thirty-odd years. To name but a few, we have had the Dutch (2005, 2016), Irish (2001, 2002), French (2005), Scottish (2015), Greek (2015), Danish (1993, 2015), British (2011, 2016) and Hungarian (2016) referenda, with the possibility of more Dutch, French and Italian referenda to follow over the next few years. Why have the member states of the notoriously technocratic EU so frequently resorted to asking for direct popular mandates?

The growing frequency of referenda since the turn of the century reflects the EU’s deepening and broadening since the end of the Cold War. On the one hand, European integration processes have intensified the use of referendums in those states that require direct votes under the terms of national constitutions (France, Ireland, and Denmark). The establishment of monetary union also required referenda in Denmark (2000) and Sweden (2003). On the other hand, expansion eastwards and southwards also required direct popular votes in the candidate countries. Thus the EU enlargement of 2004 saw no less than nine referenda in the aspirant member states. European reliance on referenda was further extended by the EU when it notoriously demanded repeat referenda in Ireland (2001, 2002) until the desired outcome was secured with respect to the Treaty of Nice. Remainers in the UK, still hoping to thwart Brexit, are now demanding another referendum, this time on the terms of Brexit. In short, long before Farage, Cameron, Renzi or Orban became leading political figures, the referendum had been entrenched as an archetypal tool of European governance across the continent, all under the benign guidance of Brussels. Whatever criticisms we may we wish to offer of referenda as a tool of government – and there are many – such arguments need to be directed against the EU and its supporters at least as much as against any anti-EU populist seeking to undermine the foundations of the status quo.

To be sure, not all of these referenda directly concerned any given country’s relationship with the EU. The Scottish referendum for instance, concerned whether or not Scotland would remain part of the UK. Yet even here, the EU was woven through the fabric of Scottish politics and embedded in the choice Scottish voters had to make. The EU has accelerated the process of regionalisation and decentralisation seen in European states since the 1970s, thereby systematically reducing the political risks of independence. This development has been keenly exploited by the secessionist Scottish National Party (SNP), which packaged the prospect of self-determination in the protective layers offered by ‘independence … in Europe’. How likely an independent Scotland would be able to secure fast-track membership of the EU also doubtless figured in voter’s calculations as to the risks and benefits of breaking away from London.

Given all this, it seems safe to say that referenda have become a structural feature of the European political order, a characteristic of the transformation of Europe’s decayed nation-states into the member-states of the European Union. According to Chris Bickerton’s theory, the EU has blossomed in the detritus left by the decay of representative democracy at the national level. As the organic links connecting states and societies have crumbled away leaving a ‘void’ between governments and the governed, the member-states of the EU have had resort to other means in order to secure some measure of popular legitimacy. That the EU should be so reliant on a tool as characteristically authoritarian as the plebiscite should come as no surprise; the EU is after allthe form of government that has arisen as representative democracy has declined.

Referenda allow political elites to strip-mine popular legitimacy with tightly controlled questions that they devise themselves, while offering the voters limited options and avoiding the flux of ongoing contestation between and within political parties. As one-off political choices, referenda offer rich symbolic rewards: the EU could claim a popular mandate in the chain of referenda that heralded its expansion eastwards in 2004. This was despite the fact that the process of accession typically strengthened executives at the expensive of legislatures and required parliaments to swallow thousands of pages of community law – the notorious acquis – all at once, making a mockery of the very meaning of passing legislation.

The plebiscitarian state emerging in Europe represents the further decay of the EU member-state, and is the logical conclusion of the degradation of democracy. Nor should it come as any surprise that the populists have succeeded in turning the technocrats’ favoured instrument of popular legitimation against them: populism and technocracy feed off each other, consuming representative party politics. A Remainer alliance is now forming in Britain, rallying around the call for a second referendum. Led by the Liberal Democrats but extending to the SNP, rebel Tories and Labour MPs, they seek not to overturn Brexit but rather indirectly to thwart it. If they succeed, they will accomplish what the populists have not, which is to complete Britain’s transformation into a plebscitarian state: Britain will thus retain the plebiscitarian political structure of the typical member-state even as we formally break from the EU.

Philip Cunliffe

Too much of a good thing: arguments against a second referendum

6 Dec

The demand for a second referendum on the terms of Brexit seems to be gathering force. The recent by-election victory for the Liberal Democrats’ in the hitherto Tory safe seat of Richmond was widely seen as a mini-referendum on Brexit. Former Tory Prime Minister John Major has waded into the debate, with his claims that while the popular verdict on the EU should be respected, a second referendum is nonetheless justified. Even Simon Jenkins, one of the few major commentators that managed to retain his composure in the aftermath of the June referendum, has given qualified support to the idea of a second referendum. In light of the continued prevarication over Brexit, it is worth revisiting some of our broad arguments regarding referendums and representative democracy. The Brexit effect continues to reverberate through British politics: those who sneered at referendums as rabble-rousing now earnestly make the case for a second referendum – thereby risking institutionalising the referendum as a mode of governance in Brexit Britain.

It is not difficult to discern arguments for having a second referendum, not least the fact that the precedent has now been established. The terms on which Britain leaves the European Union (EU) are clearly important for the country – in terms of movement of peoples, border control, long-term trade opportunities and patterns of economic growth. If the question of membership of the EU merited consulting the public, why should the terms on which we leave the EU not merit a similar level of democratic legitimation and public engagement? It is also worth noting that debates on a second referendum cut across the ongoing tussle in the Supreme Court over managing Brexit, such as the timing and modalities of invoking Article 50. After all, regardless of when Prime Minister May triggers Article 50 and whether or not she does it with a parliamentary vote, she could still call a referendum on the outcome of negotiations with Brussels at the end of the two-year negotiating period that would follow the invocation of Article 50. In light of all this, it is worth recalling what the best arguments for holding the Brexit referendum were in the first place, and considering how they stack up against the arguments for a second referendum.

On TCM we have sought to make the political case for representative democracy – against the inter-twined threats of technocratic subversion on the one hand, and the phony politicisation of populism on the other. Despite the fact that referendums justly have a reputation as the tool of direct democracy and populist authoritarianism, and whatever David Cameron’s personal motivations for calling the referendum, I supported a referendum on Brexit. More than this, I reckoned it to be the single most important political question put before the British electorate over the last three decades. There were several reasons for holding this view.

First, approaching the referendum entailed reckoning with the parlous state of representative democracy in Britain itself. That is to say: declining rates of public engagement and political participation whether measured by compression of the ideological spectrum, declining interest in politics, collapsing membership of political parties and the long term decline in voting in general elections. With the structures of representative democracy having been so rotted through prior to the referendum, it is reasonable to supplement the process of political decision-making with direct public engagement.

Important as such factors are, these were nonetheless secondary considerations. More important was the fact that it was the nature of democracy itself that was at issue in the referendum. Should legislation be crafted and debated by elected representatives, or channelled via the executive’s prerogative over foreign policy into Brussels, to then be funnelled back to national capitals and then be rubber-stamped by national parliaments? This hollowing out of the democratic process that took place under the aegis of the EU was the strongest reason to ensure that the electorate was given a voice over membership of the Union itself. Irrespective of the outcome, the referendum energised democracy. With the Brexit vote, the possibility of restoring representative liberal democracy at the nation-state level exists. Whatever the outcome of Brexit, political elites have been put on notice by the referendum as to the fact that they can be held to account, even through the limited formal representative structures offered by the British state. Evading popular accountability has become more politically difficult since the referendum.

Yet there are also good reasons to be wary of repeat referendums. A direct national vote on the character of national democracy is a different kind of political decision than a direct national vote on the outcome of negotiations overseen by elected representatives: the latter clearly slides into plebiscitarianism. Instead of escalating plebiscitiarian rule, British political parties should take advantage of their post-Brexit boost in membership and public political engagement to rebuild democratic contestation at the national level. Doubtless opportunistic Remainers will rally behind the call for a second referendum of whatever complexion, in the hope of throwing anything they can in the way of Brexit. Yet Remainers’ criticisms of the political degradation resulting from Brexit risk becoming a self-fulfilling prophecy for which they will be complicit: if plebiscitarianism is embedded in the functioning of the British state, then a democratic shot in the arm may end up becoming a debilitating drug.

Philip Cunliffe

The Myth of Bregret

7 Nov

One of the reasons invoked to support calls for a second EU referendum is that the vote would inevitably go the other way, because people have changed their minds. In the polite version, this is because they will have new information on hand about the real costs of Brexit, such as the decline in sterling. In the less polite version, this is because the people were stupid enough to be fooled by a pack of lies from the Leave campaign. In reality, this regret over Brexit – ‘Bregret’ – is more imagined than real.

This myth has been circulating since 24 June. In the immediate aftermath of the referendum, Remainer media outlets scrambled to find individual Brexit voters who were shocked or upset by the outcome, saying they had only wanted to lodge a protest vote. Despite the fact that only a handful of people were willing to say this on camera, Remainers sought to present them as widely representative. Similarly, stories circulated that many people were Googling ‘what is the EU?’ in the days after the vote, despite the fact that only 1,000 people did so.

A couple of weeks ago, the myth was given more oxygen – and apparent scientific confirmation – with the gleeful circulation of this graphic and article from The Economist, which purported to show extensive Bregret.

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The data here come from the British Electoral Survey (BES), which polled voters in the immediate aftermath of the referendum. BES’s own commentary on its findings do not support the idea of significant Bregret, however. BES notes that 6% of Leave voters regretted their vote, which rose to 8% among those least convinced, before the vote, that Leave would win. However, BES says, ‘the narrative of surprised and regretful Leave voters has some truth but only for a small minority of voters’. Leavers were, on average, far more convinced they would win than Remainers. Moreover, ‘the level of regret is consistent with what we saw at the [2015] general election.’

Other sources confirm that voters remain pretty firm in their choices. YouGov focus groups conducted in August found no change among Leavers or Remainers and, remarkably, no desire among Remainers for a second referendum, even from those who signed a petition calling for one (so clearly Brexiters are not alone in saying one thing and wanting another). YouGov polls through August and September also found the 52/48 split remaining consistent. John Curtice, the UK’s premier polling expert, concludes that claims of ‘buyers’ remorse’ are merely ‘wishful thinking’ by Remainers. “Very few minds have been changed – there are very few signs of regret.”

That the myth nonetheless circulates tells us a lot about both Remainers and Leavers. It shows that many Remainers still believe that the only reason that voters could have been so foolish as to vote to leave the EU is a lack of information, caused by lies or distortion, which are now being corrected as the predicted post-Brexit ‘disaster’ unfolds (even though, actually, it doesn’t). Leave voters could not, on this view, have voted for principled reasons, or on the basis of careful consideration; just a bit of additional information would be enough to change their position. That voters have actually stuck to their guns suggests quite the opposite.

The High Court Undermines Parliamentary Sovereignty

6 Nov

On 3 November, the High Court of England and Wales ruled that parliament, not the government, has the power to invoke Article 50 and trigger the UK’s departure from the European Union. This has generated glee from Remainers, and a bitter and sometimes ugly backlash from Brexiters. While the ruling is unlikely to lead to Brexit being thwarted, it is certainly a blow to democracy, one that illustrates the deep crisis of political representation that afflicts the UK.

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The ruling: undermining parliamentary sovereignty

Much Brexiter outrage focuses on the fact that three unelected judges are seen to be thwarting the democratic will of 17.4 million voters. Indeed, the Remainers who brought this case were not motivated by democratic impulses. They know that three-quarters of current Members of Parliament (MPs) are Remainers. By shifting control over Article 50 to parliament, their hope is that MPs will block Brexit, by overturning the referendum result of 23 June or, failing that, by kicking Brexit into the long grass.

The central question in the case was who has the right to repeal the legal rights and duties associated with EU membership that will necessarily follow from invoking Article 50 of the Lisbon Treaty. In the UK’s constitution the conduct of foreign relations, particularly the (un)making of treaties, is a matter for the ‘Crown’, whose ‘prerogative’ is exercised by the executive branch; hence, the government argued that it had the right to invoke Article 50. Remainers argued that the EU treaties are special because EU laws enacted under those treaties directly affect the rights and obligations of British citizens. Since the civil wars of the seventeenth century, only parliament has had the constitutional authority to repeal laws or make new law. Invoking Article 50 would lead to withdrawal from the EU and this will effectively repeal a wide range of laws giving British citizens various rights and obligations. Therefore, the Remainers argued, only the (the overwhelmingly Remainer) parliament has the constitutional authority to set that process in motion.

The judges sided with parliament – which may appear to be a victory for democracy. But considered in its political context, the judges’ legal argument actually subverts the democratic content of parliamentary sovereignty.

To begin with, what Remainers are ultimately in favour of is not the restoration of parliamentary sovereignty over the powers of the executive but remaining within the EU, and remaining within the EU necessitates parliament relinquishing a considerable part of its power to make law to the executive. The European Communities Act 1972 automatically enacts EU law as UK law, without requiring parliament to pass any further statutes each time EU law changes. UK ministers contribute to making EU law through their activity in the European institutions. The power that ministers are exercising when they make those EU laws is nothing other than the Crown’s prerogative to conduct international relations. The result is that Remainers who loudly claim to be upholding the sovereignty of parliament against Theresa May’s reliance on the prerogative are the same people who want parliament to continue to surrender a significant part of its law-making powers to the Crown in the form of EU law-making.

If the prime minister did use prerogative powers to implement Article 50, this would not involve the Crown taking powers away from parliament. Parliament asked the British people in the referendum whether we wanted to retain the rights associated with EU membership, and a majority voted not to. If the government invokes Article 50, it would simply be implementing a democratic decision called for by parliament itself. Moreover the government has pledged to maintain all of the legal rights and duties in domestic law that arise from EU law, allowing parliament to retain, repeal or amend them after Brexit.

Parliamentary sovereignty is threatened far more by the legal ruling than it is by Theresa May. The judges’ insistence that parliament’s sovereignty requires parliament to make the decision on Article 50 pretends that the decision has not already been made by the people that parliament is supposed to represent. The judges’ ruling therefore opposes parliamentary sovereignty to popular sovereignty. The political authority of parliament ultimately derives solely from the extent to which it represents the people. By encouraging and empowering our political representatives to set themselves against the majority decision, the ruling has the effect of undermining the true sovereignty of parliament in the name of upholding it.

The crisis of representation

The ruling underscores the deep crisis of political representation in Britain. Theresa May’s reluctance to hand the authority over Article 50 to parliament is not simply because she thinks ‘revealing our hand’ is a bad negotiating tactic. It is because she cannot trust the predominantly Remainer MPs to accept the referendum result, and can foresee disaster should they refuse to do so. A large majority of the public backed May on this, suggesting that they, too, do not trust MPs to represent them. The same sentiment is conveyed by the shrill Leaver reaction to the court’s judgement.

This is not a ‘constitutional crisis’, as some are saying; it is a crisis of political representation, expressing the disconnection of the political elite from the electorate. Parliament has been exposed as highly unrepresentative: 74% of them – and every political party bar UKIP and the Ulster Unionist parties – backed Remain, versus just 48% of the voters. Many MPs have openly expressed a desire to frustrate the outcome. This creates a situation where it is the executive branch that more accurately represents popular sentiment by pledging that ‘Brexit means Brexit’.

This is hugely problematic precisely because, as TCM has repeatedly argued, open debate and participatory democratic processes are now vital to determine what Brexit actually means in practice. The majority of people favoured leaving the EU, thereby authorising the government to change the law accordingly, including by repealing rights associated with EU membership. Nevertheless, the exact nature of Brexit was never defined during the campaign; no one can seriously argue Leave voters endorsed any particular option.

From the democratic point of view, it would be good to have as wide a political debate on this question as possible. The Brexit negotiations are not a matter for secret diplomacy, still less are they a poker game. The terms of Britain’s departure concerns us all. If Brexit is going to restore representative democracy, and strengthen parliamentary sovereignty, then the process should begin with collective political debate on defining what Brexit means. This involves representing the interests of both Leavers and Remainers. The referendum produced a clear result, but 16 million people still voted to Remain. They must accept that they lost on the fundamental question of EU membership, but are fully entitled to have their concerns and interests reflected in discussions on the nature of Britain’s departure.

However, the crisis of representation is such that, although parliament should be making decisions on the form of Brexit, it is unrepresentative with respect to Brexit itself, and therefore ought not to be given a veto over Britain’s departure from the EU – which is what giving MPs a final say over Article 50 does.

The real threat to parliamentary sovereignty arises from legislators’ continuing willingness to hold Brexit hostage, which is only encouraged by the High Court’s judgement. If MPs really respected the true basis of parliamentary sovereignty – the will of the electorate – they would stop blackmailing the electorate. They would unambiguously commit themselves to respecting the referendum result and leave invoking Article 50 to the executive. They would confine themselves to debating how best to implement the judgement of those who give them their authority. As long as they refuse to do this, too many electors will not trust them to be involved and the government can correctly stake a greater claim to true representativeness and to the political authority to keep the negotiations secretive.

Will the judgement foil Brexit?

Despite Leaver anxiety, the simmering mutual antipathy between the Leave majority in the electorate and the Remain majority in parliament will probably keep the UK on course to leave the EU. Work to model the EU referendum results at constituency level shows that 421 out of 574 English and Welsh constituencies probably voted Leave, and 270 definitely did, while only 152 constituencies probably voted Remain, while only 76 definitely did so. If MPs defy the referendum result, they would face an enormous backlash and many could lose their seats.

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Theresa May understands this – which is why she has doubled down on Brexit, reiterating her intention to invoke Article 50 by March. Many Remainer MPs too are hearing the electoral message, and now say that parliament’s role is to scrutinise the government’s negotiating position and ensure that Britain pursues an approach that protects British interests – from their perspective, staying in the single market. Following the ruling the Labour Party leadership has reiterated that Labour will not block Article 50, but will just ‘fight for a Brexit that works for Britain’. True, some MPs are still clinging to the idea of a second referendum on the final deal, but for reasons we have outlined previously, that is both politically unacceptable and impractical, making it very unlikely to fly in the Commons. The betrayal of the referendum result is therefore technically enabled by the High Court’s judgement, but remains politically unlikely.

If it does happen, the consequences will be unpredictable. One possibility is that Leave voters will rebel against their turncoat MPs, forcing their deselection or defecting to other parties – possibly reviving the disintegrating shambles that is now UKIP. While this revival would be a regrettable result of Remainer intransigence, it would at least have the positive outcome of disciplining the people’s representatives, showing them that they cannot continually defy the voters’ will. That might actually strengthen representative democracy. However, another possibility is that parliament’s frustration of the referendum result deepens popular cynicism towards the electoral system and the elitist Remainer parties populating it. The electorate will then increasingly look for solutions that attack and circumvent this system, making them prey to extremist populist appeals.

Although Remain MPs appear to be seeing sense, the possibility that parliament might frustrate the majority decision in the referendum is still a greater threat to democracy than giving the executive wide discretion to interpret the result, undesirable as that is.

The Supreme Court may yet dig parliament out of the mess it has got itself into by finding a way to reverse the High Court ruling when the government appeals in December, though it would be unwise to set too much store by the judges’ democratic instincts. The highly personalised attacks on the High Court judges in the Brexit-supporting media are no doubt intended to intimidate the Supreme Court. If the court does not overturn the ruling, a general election may be the only solution. Whatever the final result of the legal proceedings, parliament is at a crossroads. MPs can choose to undermine democracy further by continuing to delay or frustrate the implementation of the majority’s decision. Or they can participate in the renewal of democracy by giving up their claim to have a right to do so.

Lee Jones and Peter Ramsay

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